European Convention on Human Rights

The UN Human Rights Committee Disagrees with the European Court of Human Rights Again: The Right to Manifest Religion by Wearing a Burqa

Published on January 3, 2019 Author: Stephanie Berry

It is perhaps unsurprising to observers of the UN Human Rights Committee’s (HRC) jurisprudence that in the recent decisions of Yaker v France and Hebbadi v France, the HRC came to the opposite conclusion to the European Court of Human Rights (ECtHR) regarding the compatibility of the so-called ‘French burqa ban’ with the right to manifest religion. In SAS v France, the ECtHR had found that although the French Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010 (herein after the ‘burqa ban’) interfered with the right to manifest religion, it did not constitute a violation of article 9 European Convention on Human Rights (ECHR) as it pursued the legitimate aim of ‘living together’ and fell within the State’s margin of appreciation (see my earlier post on this case). In contrast, in Yaker and Hebaddi, the HRC found that the same law violated not only article 18, the right to thought, conscience and religion, but also article 26 of the International Covenant on Civil and Political Rights (ICCPR), the right to equality before the law.

The HRC’s freedom of religion or belief jurisprudence has consistently diverged from that of the ECtHR when the right to manifest religion by wearing religious clothing is at issue. Both bodies have heard directly analogous cases, but while the HRC has found that restrictions on religious clothing justified by reference to either secularism or public order violate article 18 ICCPR, the ECtHR has deferred to the State’s margin of appreciation and declined to find a violation (see my earlier post on this blog). As a result, the HRC’s decisions in Yaker and Hebbadi were not entirely unexpected, especially as in its Concluding Observations on the fifth periodic report of France in 2015, the HRC had expressed ‘the view that these laws [including the burqa ban] infringe the freedom to express one’s religion or belief and that they have a disproportionate impact on members of specific religions and on girls’ (para 22). However, its decision in these cases remains noteworthy as a result of: its consideration of ‘living together’ as a legitimate aim under the article 18(3) ICCPR limitations clause; the HRC’s recognition that the burqa ban constituted intersectional discrimination; and the nuanced approach adopted to the gender equality argument. The analysis here will focus on Yaker, although the HRC’s reasoning in both cases is identical. Read the rest of this entry…

Filed under: EJIL Analysis, European Convention on Human Rights, European Court of Human Rights, Freedom of Religion, Human Rights, International Covenant on Civil and Political Rights

Tags: burqa ban, Human Rights Committee, margin of appreciation, Yaker v France

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A Quick Holiday Update on Ukraine/Russia Litigation before the ECtHR

Published on December 24, 2018 Author: Marko Milanovic

Last week the European Court of Human Rights published a press release which is worth flagging for readers, with an update on litigation concerning various aspects of the conflict in Ukraine pending before it. As things stand, there are more than 4000 individual cases before the Court with a nexus to the conflict, whether in Eastern Ukraine or Crimea. There are currently five pending interstate cases between Ukraine and Russia, the latest one filed in November, concerning the Kerch Strait incident (see this prior post by James Kraska) and in which the Court has indicted interim measures. The Court has now decided to adjourn many of the individual cases, pending its decision in the interstate cases on the applicability of the Convention, specifically with regard to the Article 1 ECHR jurisdiction of both Ukraine and Russia; for a discussion of this issue, see my recent ICLQ article with Tatjana Papic on the applicability of the ECHR in contested territories.

The full press release is reproduced below.

Read the rest of this entry…

Filed under: Armed Conflict, EJIL Analysis, European Convention on Human Rights, European Court of Human Rights, Extraterritorial Application

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In the name of the European Club of Liberal Democracies: How to Evaluate the Strasbourg Jurisprudence

Published on December 20, 2018 Author: Armin von Bogdandy

How should the European Court of Human Rights be reformed? Para. 41 of the Copenhagen Declaration of April 2018 seeks to scrutinise, for this purpose, recent developments in its jurisprudence, to decide, before the end of 2019, on further reform (para. 5 Copenhagen Declaration). What is a meaningful idea for such scrutiny? This post provides a legal reconstruction of the Court with respect to who it represents and in whose name it decides, that is in the name of the European club of liberal democracies. From here on, it flags the identity crisis of the club as the Court’s most important challenge. It also shows the procedural margin of appreciation doctrine as a possible path to the Court’s future, with a reformed role that focuses on the essentials of the club.

The focus “in whose name?”

An evaluation of the Court’s jurisprudence needs an idea of its democratic legitimacy, not least because it often confronts elected governments. The question, ‘in whose name’ the Strasbourg Court is deciding, evokes such an idea. Indeed, many national courts state right at the outset that they decide In the name of the people or the republic, whatever is conceived as the ultimate source of their legitimacy. Accordingly, most evaluations of domestic courts start from this premise.

In the judgements of the ECtHR, as those of any international court, nothing of that kind is written. So the question is what could feature in there as a short formula which provides a similar idea? One might consider referring to the Convention. It would then read In the name of the European Convention on Human Rights, as if a domestic court would start with In the name of the law. Yet, this is a step too short: the legitimacy does not stem from the law itself, but from its approval by parliament. Accordingly, the basis of the Court’s democratic legitimacy stems from the national ratifications of the Convention.

Hence, in a normal international controversy between two states, one could consider a court to decide In the name of the high contracting parties litigating before the court. But this makes little sense for the Strasbourg court: most controversies at the ECtHR are between a state and a national of that state. A different formula is needed. Read the rest of this entry…

Filed under: European Convention on Human Rights, European Court of Human Rights, Human Rights

Tags: ECHR, European Court of Human Rights

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Climate Change before the Courts: Urgenda Ruling Redraws the Boundary between Law and Politics

Published on November 16, 2018 Author: Johannes Fahner

On the 9^th of October, the Hague Court of Appeal upheld the first-instance judgment in the Urgenda case, ordering the Dutch State to reduce greenhouse gas emissions more progressively than planned by the government. The appeal judgment was applauded across the world and welcomed as a source of inspiration for climate change litigation in other jurisdictions. At the same time, the ruling has evoked criticism in the Netherlands, where commentators wondered if the court had not overstepped the boundary between law and politics, violating the separation of powers (eg in Dutch here, here, and here). The ruling raises intricate questions concerning the proper role of domestic courts in securing compliance with the European Convention on Human Rights (ECHR) in matters of general policy. Arguably, the judgment expands the role of courts beyond what Dutch constitutional law allows them to do, but this expansion fits with the increasing emphasis put on the notion of subsidiarity by the Member States of the Council of Europe.

Greenhouse Gas Emissions and Human Rights

The Court of Appeal confirmed that by 2020, the Dutch government should have reduced the cumulative volume of greenhouse gas emissions by at least 25 % compared to the situation in 1990. The government had agreed to a 49 % reduction target for 2030 and a 80-95 % target for 2050 (para 46), but disputed that it was legally obliged to commit to a reduction target of at least 25 % for 2020, in light of the EU’s commitment of 20 %. The appeal court agreed with Urgenda that a reduction of 20 % by 2020 would not be sufficient to meet the 2030 target and that reduction efforts should not be delayed (para 47).

According to the court, the State’s refusal to commit to at least 25 % breached its duty of care under Articles 2 and 8 of the ECHR. In interpreting these Articles, the court ruled that ‘the State has a positive obligation to protect the lives of citizens within its jurisdiction under Article 2 ECHR, while Article 8 ECHR creates the obligation to protect the right to home and private life’ (para 43). The court noted ‘a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life’ (para 45). In this context, the State’s duty of care required a reduction of at least 25 % (para 73). Read the rest of this entry…

Filed under: European Convention on Human Rights, Human Rights, Right to Life, Right To Privacy/Family Life

Tags: climate change, greenhouse emissions, margin of appreciation, Netherlands

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Legitimizing Blasphemy Laws Through the Backdoor: The European Court’s Judgment in E.S. v. Austria

Published on October 29, 2018 Author: Marko Milanovic

This past weekend Irish voters decided, by an overwhelming majority, to amend the Irish Constitution so as to decriminalize blasphemy. Just a few days before this referendum, however, a unanimous Chamber of the European Court of Human Rights gave its blessing to the criminalization of blasphemy, in all but name, in its judgment in E.S. v. Austria, no. 38450/12.

I have now read this judgment several times. Each time I read it I was left more disturbed. It applies the Court’s previous troubling precedents in this context – such as the notorious judgment in Otto-Preminger-Institut v. Austria – wholly uncritically, while even going beyond them in policing offensive speech. It unpersuasively tries to draw a distinction between blasphemy laws, which categorically impermissibly infringe on the freedom of speech, and the Austrian law at issue, as interpreted and applied by Austrian courts, which according to the Court strikes the right balance between the freedom of speech and the freedom of religion. As I will explain, the Court’s distinctions are essentially meaningless and incapable of being applied in any non-arbitrary way, leading us not to a slippery slope of a further erosion of free speech, but to a cliff. Its reasoning lacks rigour and fetishizes the national margin of appreciation. Worst of all, the judgment will likely do nothing to promote religious tolerance in Europe, but will only help to further the narrative of Islamophobic closet neo-Nazis (who are, by the way, already in power in Austria, and not for the first time) that they are free speech martyrs , victimized in their own country by horrible minorities, elites and human rights lawyers.

Read the rest of this entry…

Filed under: EJIL Analysis, European Convention on Human Rights, European Court of Human Rights, Freedom of Expression, Freedom of Religion

Tags: blasphemy, hate speech, offensive speech

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Intelligence Sharing and the Right to Privacy after the European Court Judgment in Big Brother Watch v. UK

Published on September 24, 2018 Author: Tomaso Falchetta

On 13 September 2018, the European Court of Human Rights ruled in three consolidated cases brought by 14 human rights organisations and 2 individuals against the UK government’s mass interception program and its access to the intelligence gathered by other governments, including the United States (Big Brother Watch v. UK, nos. 58170/13, 62322/14, 24960/15.)

As noted already by Marko Milanovic, these cases are nuanced, complex, and long. I intend to focus here on one aspect, namely the way the Court assessed the intelligence sharing claim brought by the applicants (paras 416-449.) This assessment is noteworthy as that claim presents an issue of first impression for the Court. As the judgment itself notes, “this is the first time that the Court has been asked to consider the Convention compliance of an intelligence sharing regime” (para 416). (It is worth noting, however, that the recent judgment in Centrum för Rättvisa v. Sweden no. 35252/08 also touches upon this issue.)

The applicants’ intelligence sharing claim centred on the revelations, contained in disclosures by Edward Snowden, that the UK government has access to information collected by other foreign intelligence agencies, and most notably the U.S. National Security Agency (NSA). In particular, these revelations suggest that the UK government has direct and unfettered access to raw data intercepted by other governments, which it can then filter, store, analyse and further disseminate. They further suggest that the UK government has similarly broad access to information stored in databases by other governments.

From a human rights law perspective, the fundamental question raised in this case is the nature of the interference and therefore the applicable test to apply to such interference. Read the rest of this entry…

Filed under: EJIL Analysis, European Convention on Human Rights, European Court of Human Rights, Human Rights, Right To Privacy/Family Life

Tags: Big Brother, Right to Private Life

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ECtHR Judgment in Big Brother Watch v. UK

Published on September 17, 2018 Author: Marko Milanovic

Last week the European Court of Human Rights issued a highly anticipated blockbuster Chamber judgment in Big Brother Watch v. UK, nos. 58170/13, 62322/14, 24960/15.

This is the first mass electronic surveillance case to be decided against the UK after the Edward Snowden revelations, and it touches upon numerous issues. The judgment is nuanced, complex, and long. It addresses key questions such as the proportionality of bulk interception programmes much more directly and with greater sophistication than the recent judgment in Centrum för Rättvisa v. Sweden no. 35252/08, which was decided by a different Chamber while this case was being deliberated, and which also upheld a bulk surveillance programme (see here for Asaf Lubin’s take on Just Security).

The judgment is too rich to summarize easily, so I will only set out some key takeaways (for an extensive discussion on surveillance and privacy in the digital age, see my 2015 Harvard ILJ piece).

First, and most importantly, the judgment is a mixed bag for privacy activists: while the Court finds that the UK’s surveillance programme under the now-defunct Regulation of Investigatory Powers Act (RIPA) was deficient in important respects and in violation of Article 8 and 10 of the Convention, it at the same time normalizes such mass surveillance programmes. In particular, the Court decided that bulk interception programmes are not categorically disproportionate, as privacy activists have argued. Second, in a similar vein, the Court finds that prior judicial authorization is not indispensable for the legality of bulk interception, again contrary to what privacy activists have argued, even if prior judicial authorization could be seen as best practice (note that under the new 2016 Investigatory Powers Act the UK has moved to a double-authorization system which involves both a minister and an independent quasi-judicial commissioner).

Here are the key paragraphs (warning – extracts from the judgment make this a lengthy post):

Read the rest of this entry…

Filed under: EJIL Analysis, European Convention on Human Rights, European Court of Human Rights, Extraterritorial Application, Freedom of Expression, Right To Privacy/Family Life

Tags: Privacy, Surveillance

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‘Drug Addicts’ and the ECHR

Published on September 3, 2018 Author: Damon Barrett

Paul Hunt has said that drug control and human rights have operated in ‘parallel universes’. For the most part this is true and the vast majority of human rights advocacy and scholarship in this area goes to attempting to bridge that divide and hopefully mitigate some of the damage brought about by the ‘war on drugs’. Recently, however, I have become more and more interested in those areas where human rights and drugs have already converged, sometimes explicitly. This leads to the ECHR and to questions about whether such convergence is a good thing.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law

…

the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

Article 5(1)(e) of the ECHR is unique in international human rights law. The formulation is absent from the American Convention on Human Rights, the African Charter on Human and People’s Rights and the Covenant on Civil and Political Rights. A first question, then, is how this fairly odd wording arrived in the ECHR? It did not feature in the UDHR or in the draft Covenant on Human Rights drafted in 1949 and from which article 5 began. The answer, it appears, is Sweden, though there is an interesting gap in the travaux in this regard.

Reference to alcoholics, drug addicts and vagrants was absent from the initial drafts of the article. At the first expert committee meeting, however, Sweden proposed the wording that ‘This provision should not exclude the right to take necessary measures to fight vagrancy and alcoholism…’ This attention to alcohol makes sense when one considers the history and influence of the temperance movement in Sweden. It was ultimately withdrawn, however, on the condition it be put on record that the text ‘covered, in particular, the right of signatory States to take the necessary measures for combating vagrancy and drunkenness …’. It is further recorded that ‘the Committee had no doubt that this could be agreed to since such restrictions were justified by the requirements of public morality and order’. Read the rest of this entry…

Filed under: European Convention on Human Rights, Human Rights

Tags: Drugs, ECHR

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The Applicability of the ECHR in Contested Territories; Two Other ECHR Cases Against Russia

Published on July 19, 2018 Author: Marko Milanovic

Earlier this week the European Court of Human Rights decided Sandu and Others v. the Republic of Moldova and Russia, nos. 21034/05 etc, the latest in its Ilascu line of cases (see here and here for more background). As in its previous case law, the Court in Sandu found that both Moldova and Russia exercised jurisdiction in the sense of Article 1 ECHR over the contested separatist territory of Transdniestria, the former on the basis of sovereign title, and the latter on the basis of its control over the area. In this case, which concerned property rights, the Court found Moldova to have discharged its positive obligations towards the applicants, and Russia not to have done so, thus incurring responsibility for violating the Convention. Like in its previous case law, it remains unclear whether the Court is attributing to Russia the conduct of Transdniestrian separatist authorities, or whether Russia is responsible for its own conduct of failing to exercise influence over these authorities so as to protect the applicants’ rights.

Coincidentally, Tatjana Papic and I have recently posted on SSRN the draft of an article on the applicability of the ECHR in contested territories, forthcoming in the ICLQ , in which we provide a critique of the Court’s Ilascu jurisprudence. The abstract is below, and any comments are welcome:

This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. Such situations have increasingly arisen in cases before the European Court of Human Rights. For instance, the Court currently has on its docket an interstate case between Georgia and Russia, three interstate cases between Ukraine and Russia, and thousands of individual applications which concern either Crimea or Eastern Ukraine. The article argues that the jurisprudence of the European Court, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court’s current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.

Also this week the Court rendered two unrelated but very important judgments against Russia. First, regarding the 2006 killing of journalist Anna Politkovskaya, the Court found Russia responsible under Article 2 ECHR for failing to conduct a fully effective investigation into the killing, specifically because Russian authorities did not explore all feasible lines of investigation into the person or persons who contracted Politkovskaya’s assassination (Mazepa and Others v. Russia, no. 15086/07).

Second, the Court found Russia responsible for the violation of several human rights of three members of the Pussy Riot band, who were arrested, convicted and sentenced to two years of imprisonment for (very briefly) performing their song Punk Prayer – Virgin Mary, Drive Putin Away in the Christ the Saviour Cathedral in Moscow (Mariya Alekhina and Others v. Russia, no. 38004/12). Pussy Riot were of course very much in the news last weekend, after their pitch invasion at the World Cup final in Moscow.

(Image: Sportimage/PA Images)

The most interesting part of the Pussy Riot judgment is the Article 10 analysis; the Court is not content with saying simply and easily that the sentence of imprisonment imposed on the applicants was disproportionate, but engages in line-drawing between hate speech and offensive speech, which is particularly relevant because the domestic crime that the applicants were convicted of incorporated a hatred element. The judgment also has a rather glorious appendix with several Pussy Riot songs (oh so very du jour, and reproduced below for entertainment value, together with the song at issue in the case itself).

Read the rest of this entry…

Filed under: EJIL Analysis, European Convention on Human Rights, European Court of Human Rights, Extraterritorial Application, Freedom of Expression, Jurisdiction, Kosovo, Territorial Disputes

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Copenhagen – much ado about little?

Published on April 14, 2018 Author: Geir Ulfstein and Andreas Follesdal

The Ministers of the Council of Europe adopted the ‘Copenhagen Declaration’ Friday April 13 concerning the perpetual reform of the European Human Rights System. Previous installments were agreed at Interlaken, Izmir, Brighton and Brussels.

On the face of it not much is new in the Declaration. It is still interesting, not least for what the Ministers agreed not to include from the draft circulated by the hosts April 5. The Danish draft urged states to reign in the Court by a dramatic extension of the ‘margin of appreciation,’ and by more control through political ‘dialogue.’ The robust rejection of these proposals also show us how the Court is independent yet accountable, to states committed both to protect human rights in Europe, and to complex conceptions of sovereignty and subsidiarity.

The agreed declaration is strikingly different: Instead of being skeptical to the Court’s achievements and its course, the final Declaration is explicitly supportive of the Court and its independence from the states. The large backlog of cases gives reasons for “serious concern”, though the principal problem is not the Court, but rather some states’ failure to implement the Court’s judgments. Read the rest of this entry…

Filed under: EJIL Analysis, European Convention on Human Rights, Human Rights

Tags: Copenhagen Declaration

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EJIL: Talk!

The UN Human Rights Committee Disagrees with the European Court of Human Rights Again: The Right to Manifest Religion by Wearing a Burqa

A Quick Holiday Update on Ukraine/Russia Litigation before the ECtHR

In the name of the European Club of Liberal Democracies: How to Evaluate the Strasbourg Jurisprudence

Climate Change before the Courts: Urgenda Ruling Redraws the Boundary between Law and Politics

Legitimizing Blasphemy Laws Through the Backdoor: The European Court’s Judgment in E.S. v. Austria

Intelligence Sharing and the Right to Privacy after the European Court Judgment in Big Brother Watch v. UK

ECtHR Judgment in Big Brother Watch v. UK

‘Drug Addicts’ and the ECHR

The Applicability of the ECHR in Contested Territories; Two Other ECHR Cases Against Russia

Copenhagen – much ado about little?

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