New Academic Articles on the ECHR

The newest edition of SIM's 'Online Contents' on human rights publications (March 2013) is out now. It includes a number of ECHR-related publications. By far the most concern the various issues of the European Human Rights Law Review of last year (2012). In issue 1:

* R. Stone, 'Deprivation of liberty: the scope of article 5 of the European Convention of Human Rights', pp. 46-57.
* A. Green, 'A philosophical taxonomy of European human rights law', pp. 71-80.

In issue 2:

* R. O'Connell, 'The right to work in the ECHR', pp. 176-190.
* A. Khan, 'A "right not to be offended" under article 10(2) ECHR? Concerns in the construction of the "rights of others"', pp. 191-204.

In issue 3:

* N. Croquet, 'The right to self-representation under the European Convention on Human Rights: what role for the limitation analysis?', pp. 292-308.
* T. Antoniou, 'The right to the presumption of innocence versus the right to freedom of expression in Parliament: the European Court of Human Rights judgment in Konstas v Greece', pp. 319-326.

In issue 4:

* N. Mole, 'The complex and evolving relationship between the European Union and the European Convention on Human Rights', pp. 363-368.
* A. Weiss, 'EU accession to the European Convention on Human process: the state of play and the added value for victims of human rights violations in Europe', pp. 391-396.

And, finally, in issue 5:

* L. Miara and V. Prais, 'The role of civil society in the execution of judgments of the European Court of Human Rights', pp. 528-537.
* M. Pitkänen, 'Fair and balanced positive obligations - do they exist?', pp. 538-550.
* M. Spurrier, 'Gillberg v Sweden: towards a right of access to information under Article 10?', pp. 551-558.

In addition, from other journals:

* N. Mavronicola, 'Güler and Öngel v Turkey: Article 3 of the European Convention on Human Rights and Strasbourg's discourse on the justified use of force', Modern Law Review, vol. 76, no. 2 (2013) pp. 370-382.

* S. Pei, 'Unveiling inequality: burqa bans and nondiscrimination jurisprudence at the European Court of Human Rights', Yale Law Journal, vol. 122, no. 4 (2013) pp. 1089-1102.

 * F. de Londras and K. Dzehtsiarou, 'Grand Chamber of the European Court of Human Rights, A, B & C v Ireland, Decision of 17 December 2010', International and Comparative Law Quarterly, vol. 62, no. 1 (2013) pp. 250-262.

 * P. Kearns, 'The judicial nemesis: artistic freedom and the European Court of Human Rights', Irish Law Journal, vol. 1 (2012) pp. 56-92.

My New Work on the Significant Disadvantage Admissibility Criterion

I have just posted my new book chapter on the European Convention's admissibility article of the lack of a significant disadvantage on SSRN. The contribution, to be published later this year in an edited volume, is entitled 'Significantly Insignificant? The Life in the Margins of the Admissibility Criterion in Article 35§ 3 (b) ECHR'. This is the abstract:

Protocol 14 to the European Convention on Human Rights (ECHR) introduced a new admissibility criterion: the lack of a significant disadvantage. The criterion, included after long and very principled discussions about the accessibility and effectiveness of the European system of human rights supervision, will be the object under scrutiny in this contribution. The main issue under review will be whether the concerns in the run up to the introduction of this admissibility have materialised. Has the practice of the Court in applying the “lack of a significant disadvantage” as a threshold at the entrance of the European system indeed endangered the access of individual applicants to the Court? In order to answer this question I will first look at the discussions which led to the creation of this criterion. Subsequently, its scope and application will be addressed by looking at the jurisprudence of the Court. 

Enjoy reading - includes cases ranging from public transport cards in Prague to demolishing brick walls in Macedonia...

The quote on the tile is from Dutch soccer legend Johan Cruijff: each disadvantage has its advantage.

Accession of EU to ECHR Draft Agreement: Finally Finalised

It has taken some time, not just because of the legal complexities but also because of political reasons, but now it is finally there: this past Friday the Draft Agreement on Accession of the European Union to the European Convention on Human Rights (see page 4 and further for the Agreement itself) was finalised. Negotiations had started in July 2010, but the idea had been floated as early as the 1970s. Under he more recent the Treaty of Lisbon, accession became a legal obligation for the European Union. No wonder then, that the press release of the Council of Europe speaks of a "milestone reached".

Over at the Council of Europe, Secretary General Thorbjørn Jagland, even referred to the milestone as "the missing link": 

“This is a decisive step, paving the way to EU accession to the European Convention of Human Rights. It will contribute to the creation of a single European legal space, putting in place the missing link in the European system of fundamental rights protection”.

The meeting report of the final negotiations between the Steering Committee for Human Rights (CDDH) of the Council of Europe and the European Commission can be found here and the final report to the CDDH can be retrieved here. 

Are we there yet, then? No, not at all. As required under internal EU law, the Court of Justice of the EU will now be asked to give its opinion, since this is an international agreement between the Union and other parties. After that the Council of the European Union will unanimously have to agree (these are the state representatives, as opposed to the Commission which undertook the negotiations). And then of course, all ECHR state parties will have to ratify as well. Please note that the Draft Accession Agreement is the key text within a wider package. There will also be a draft declaration by the EU; a draft Rule to be added to the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements in cases to which the EU is a party; a draft model of Memorandum of Understanding; and a draft explanatory report to the Accession Agreement.

As to substance, the Draft Agreement specifies that the EU will accede to the ECHR itself and to additional Protocols 1 (on property and education amongst others) and 6 (abolition of the death penalty in times of peace). Other Protocols with substantive provisions (e.g. 7, 12 and 13) will thus not apply to the EU. One of the key reasons for this is that these Protocols have not been ratified by all separate EU member states, not even Protocol 13 which abolishes the death penalty under all circumstances - it may come as a surprise, but Poland is the only EU country which has not ratified this Protocol. Thus only those Protocols about which there is full EU consensus are part of this agreement.

As to who is responsible when (and for experts in EU law this part is especially interesting), the Draft Agreement specifies as follows in its first Article:

3. Accession to the Convention and the Protocols thereto shall impose on the European Union obligations with regard only to acts, measures or omissions of its institutions, bodies, offices or agencies, or of persons acting on their behalf. Nothing in the Convention or the Protocols thereto shall require the European Union to perform an act or adopt a measure for which it has no competence under European Union law.

4. For the purposes of the Convention, of the Protocols thereto and of this Agreement, an act, measure or omission of organs of a member State of the European Union or of persons acting on its behalf shall be attributed to that State, even if such act, measure or omission occurs when the State implements the law of the European Union, including decisions taken under the Treaty on the European Union (hereinafter referred to as “the TEU”) and under the Treaty on the Functioning of the European Union (hereinafter referred to as the “TFEU”). This shall not preclude the European Union from being responsible as a co-respondent for a violation resulting from such an act, measure or omission, in accordance with Article 36, paragraph 4, of the Convention and Article 3 of this Agreement.

When the EU will be co-respondent in a case, the Court of Justice of the EU will, in situations in which it has not yet assessed the "the compatibility with the Convention rights at issue of the provision of European Union law"  at stake, be given the opportunity to make such an assessment. The parties in the case in Strasbourg will then be allowed to make observations about this assessment.

On the nowadays much-researched issue of shared responsibility, the Draft Agreement provides that in principle this will apply ,with a possible exception (article 3(7) of the Draft Agreement):

If the violation in respect of which a High Contracting Party is a co-respondent to the proceedings is established, the respondent and the co-respondent shall be jointly responsible for that violation, unless the Court, on the basis of the reasons given by the respondent and the co-respondent, and having sought the views of the applicant, decides that only one of them be held responsible.

The Draft Agreement (in Article 4) also broadens the possibility of inter-state applications to inter-party applications. Assuming that under EU law it is excluded that a party would start a case against the EU in Strasbourg (Article 344 of the TFEU), this option would most probably apply to two kinds of cases:

- a non-EU member state potentially complaining against the EU

- the EU potentially complaining against a non-EU state party to the ECHR

As is commonly known, inter-state party applications are extremely rare, but who knows whether and when this may be used as an instrument of foreign policy by either side. Not entirely excluded...

Participation of the EU in the Parliamentary Assembly of the Council of Europe (when electing judges) and in the Committee of Ministers of the Council of Europe (amongst others when supervising judgments) is also foreseen.

For a more elaborate explanation of all the provisions in the Draft Agreement, please consult the Draft Explanatory report (page 16 ff of that document).

One can only hope that the entry into force will not take as many years at that of Protocol 14. In any event, a number of key hurdles have been taken, and a considerable number still lay ahead on the long path before we will have a judge in Strasbourg in respect of the EU.

UK Prisoner Voting Rights Update

The continuing saga of voting rights for prisoners in the United Kingdom now includes a new episode. This week the Court decided (in an unpublished decision) to adjourn the consideration of over 2,500 prisoner voting rights cases until at the latest September 2013. The reasoning behind this is to give the Committee of Ministers time to supervise the implementation of the Court's judgments on the mater, now that the UK Government has introduced a draft bill with several options in November last year. This is the full text of the press release:

The European Court of Human Rights has decided to adjourn its consideration of 2,354 applications against the United Kingdom concerning prisoners’ right to vote pending before it.

In its first judgment against the United Kingdom regarding prisoners’ right to vote, Hirst v. the United Kingdom (no. 2) (74025/01) of 6 October 2005, the Grand Chamber of the Court found that a blanket ban preventing all convicted prisoners from voting, irrespective of the nature or gravity of their offences, constituted a violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights. It did not give any detailed guidance as to the steps which the United Kingdom should take to make its law compatible with Article 3 of Protocol No. 1, emphasising that there were numerous ways of organising and running electoral systems and that it was for each Member State of the Council of Europe to decide on its own rules. In its Chamber judgment in Greens and M.T. v. the United Kingdom (60041/08 and 60054/08) of 23 November 2010, the Court again found a violation of the right to free elections, as the

Government of the United Kingdom had failed to amend the blanket ban legislation. The Court held that the Government should bring forward legislative proposals to amend the law and to enact the legislation within a time-frame decided by the Committee of Ministers, the executive arm of the Council of Europe, which supervises the implementation of the Court’s judgments. The Government were granted an extension of time pending proceedings before the Court’s Grand Chamber in an Italian case concerning prisoners’ right to vote (Scoppola v. Italy (No. 3) (126/05), Grand Chamber judgment of 22 May 2012).

The Committee of Ministers has been following the UK Government’s progress in complying with the Court’s rulings. On 22 November 2012, the Government published a draft bill on prisoners’ voting eligibility. The draft bill includes three proposals: (1) ban from voting those sentenced to four years’ imprisonment or more; (2) ban from voting those sentenced to more than six months; or (3) ban from voting all prisoners (i.e. maintain the status quo). The Committee of Ministers is overseeing the progress of this draft bill. It has decided to resume consideration of the cases Hirst (no. 2) and Greens and M.T. at the latest at its September 2013 meeting.

In view of the Committee of Ministers’ decision, the Court decided to adjourn its consideration of the pending applications against the United Kingdom concerning prisoners’ right to vote until, at the latest, 30 September 2013. In the meantime, it has invited the Committee of Ministers to keep it regularly informed of progress.

A reminder about promotional and commerce journalism

Posted by Richard Gingras, Sr. Director, News & Social Products

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If a site mixes news content with affiliate, promotional, advertorial, or marketing materials (for your company or another party), we strongly recommend that you separate non-news content on a different host or directory, block it from being crawled with robots.txt, or create a Google News Sitemap for your news articles only. Otherwise, if we learn of promotional content mixed with news content, we may exclude your entire publication from Google News.

New Issue IAEHR

The newest edition of the annual journal Inter-American and European Human Rights Journal (vol. 5, nos. 1-2, 2013) is out now. It includes at least two articles on the European Convention:

* Erick Acuña Pereda, 'The Institutionalization of People with Mental Disabilities: Comparative Analysis between its Treatment under the Inter-American and European System of Human Rights'

* Laurence Burgorgue-Larsen, 'Interpreting the European Convention: What can the African Human Rights System Learn from the Case law of the European Court of Human Rights on the Interpretation of the European Convention?'

Another Hurdle Taken for Protocol 15

Last week, the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe (PACE) agreed that Draft Protocol 15, which aims to reform several aspects of the Convention system, could be adopted without amendment. It did so on the basis of a report by rapporteur Christoper Chope from the United Kingdom. This means that another hurdle on the way to adoption of the new Protocol has been taken. The plenary of PACE is now likely to adopt the Draft Protocol during its April session. As the entry into force of the previosu Reform Protocol took so many years, the Committee urges all state parties to ratify as soon as possible once the Protocol is adopted for signature and ratification, emphasizing that "the proposed changes to the text are principally of a technical and uncontroversial nature". After all the very controversial discussions in the past few years out of which this compromise on this Protocol arose, it may be slightly surprising to phrase it that way.

The rapporteur notes, in passing, that it is his understanding that the Brighton conference last year, after the earlier Interlaken and Izmir ones, was the last annual one. More rest on that front thus - it is now time for elaboration and implementation rather than new political plan-making. Tellingly, he notes on the discussions of the past few years "Stressing the need to reform - and criticising - the European Court of Human Rights (the Court) tends to mislead the public by suggesting that reform of the Court alone is needed."

The Report includes as an annex the Opinion of the European Court of Human Rights on Protocol 15 of 6 February 2013 which I had not seen earlier in the public domain. It is also available on the Court's site here. The opinion notes that three of the five changes included in the Protocol were suggested in the run-up to the Brighton Conference by the Court itself. The tone of the Opinion is generally positive, with a more critical stance on the specific wording of the inclusion of the margin of appreciation in the Convention's preamble.

More news on the reform process can be found here.