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Home International Tribunals Archive for category "European Court of Human Rights"

Conflicting Conceptions of Sovereignty: A Response to Professor Blankenagel

Published on January 28, 2020        Author: 

 

My thanks to EJIL for this opportunity to respond to Professor Alexander Blankenagel’s critique of my article, “The Relationship Between the European Court of Human Rights and the Constitutional Court of the Russian Federation: Conflicting Conceptions of Sovereignty in Strasbourg and St. Petersburg.”

Although I also thank Professor Blankenagel for his reply, I admit to some difficulty recognizing my article in his criticism of it. He only lightly engaged its core argument, focusing mostly on peripheral topics. Below is a quick summary of my main points, followed by responses to a few of his outlying critiques.

The Core Argument: Chekhov’s Gun

A relatively new Russian law expands the jurisdiction of the Russian Constitutional Court (RCC) to pick-and-choose the judgments of the European Court of Human Rights (ECtHR) that it will allow to be enforced in Russia. That law has been used twice and the evidence suggests that these cases were carefully selected six months before the law was even adopted. As Anton Chekhov admonished, “Don’t place a loaded gun on the stage if no one plans to shoot it.” Read the rest of this entry…

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Inter-State Applications under the European Convention on Human Rights: Strengths and Challenges

Published on January 24, 2020        Author:  and

 

This post provides, in broad strokes, an overview of human rights litigation via the inter-State application procedure under the European Convention on Human Rights (ECHR), as well as its strengths and challenges. In the last seven decades, States have referred 24 situations to the former Commission and to the European Court of Human Rights (ECtHR). Certainly, compared to some 750,000 individual applications, the number looks small. However, the inter-State applications have had an impact for a large number of individuals. Many of the cases also had important political ramifications and shaped the present supervisory architecture of the Convention.

The ECtHR full list of inter-State cases reveals a considerable rise of applications, with currently eight pending sets of proceedings: the 2008 armed conflict between Georgia and the Russian Federation is before the Court in Georgia v Russia II. The case has reached the merits stage, the admissibility decision was taken back in 2011. Georgia v Russia (IV) was lodged in 2018 and is pending at the admissibility stage. It relates to the alleged deterioration of the human rights situation along the boundary between Georgian-controlled territory and Abkhazia and South Ossetia. Ukraine has, since 2014, lodged a total of eight inter-State application against Russia before the ECHR, five of which are currently pending in Strasbourg. In those cases, no formal admissibility decision has been rendered yet. In the case of Ukraine v Russia(re Crimea) the Court had a hearing on the admissibility in September 2019. Slovenia brought a case against Croatia in 2016 that concerns the consequences of the breakup of Former Yugoslavia. In that case, the Court will render an admissibility decision after it held a hearing in June 2019, as anticipated on this blog by Igor Popović. Notably, two of the sets of cases involve Russia and human rights in situations of sovereignty disputes and armed conflict. Overall, the thrust of work in these inter-State proceedings still lies ahead of the Court.

State-to-State litigation based on human rights treaties is on the upswing also in the framework of the Convention on the Elimination of All Forms of Racial Discrimination (CERD). The Committee on the Elimination of Racial Discrimination is currently dealing with three inter-State communications, as David Keane reported on this blog. In the most recent December session, the Committee decided that it has jurisdiction regarding the inter-State communication submitted by the State of Palestine against Israel.

Read the rest of this entry…

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A New Classic in Climate Change Litigation: The Dutch Supreme Court Decision in the Urgenda Case

Published on January 6, 2020        Author:  and

 

 

The judgment of the Dutch Supreme Court in State of the Netherlands v Urgenda is a landmark for future climate change litigation. On the 20th of December 2019, the Supreme Court held that on the basis of the European Convention on Human Rights (ECHR) the Netherlands has a positive obligation to take measures for the prevention of climate change and that it has to reduce its greenhouse gas (GHG) emissions with at least 25% by the end of 2020, compared to 1990 levels. An unofficial translation of the full judgement will be published on the website of the Dutch judiciary after the 13th of January 2020.

The judgment is significant as it demonstrates how a court can determine responsibilities of an individual state, notwithstanding the fact that climate change is caused by a multiplicity of other actors who share responsibility for its harmful effects. Around the world, a flood of lawsuits has been initiated to establish legal responsibility for actors contributing to climate change. The Urgenda judgment, that has been heralded as the ‘strongest’ of all, makes clear that the fact the a state is only a minor contributor compared to many other actors, does not preclude its individual responsibility. The judgment contains important pointers that plaintiffs and courts can rely on in similar cases.

In this blogpost we briefly recap the procedure leading to the Supreme Court judgment and discuss three conclusions reached by the Supreme Court that will be of wider interest:

1) the ECHR imposed a positive obligation to take appropriate measures to prevent to climate change;

2) these measures should at least ensure that the Netherlands realizes a reduction of GHG emissions by 25%, compared to 1990, by the end of 2020; and

3) even though the Netherlands was only a minor contributor to climate change, it had an independent obligation to reduce emissions.

Recap of the proceedings

Central to the proceedings was the reduction target for developed nations of 25%-40% by 2020, compared to 1990 levels, originally identified as one scenario in the 2007 Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC). The Netherlands had embraced this target in 2007, stating that it aimed to reduce Dutch emissions with 30% by 2020. Yet in 2011, the government indicated that it would not meet the target, instead aiming for 14-17% reduction.

In 2013, a Dutch NGO with a mission to contribute to sustainability and innovation called Urgenda (‘urgent agenda)’, initiated a lawsuit against the Dutch State with the aim to order the State to reduce Dutch GHG emissions by 40% at the end of the year 2020, or at least by a minimum of 25% in comparison the year 1990.

In the 2015 judgment of the Hague District Court, Urgenda prevailed. The District Court ordered the State to ‘limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, such that this volume will have been reduced by at least 25% at the end of 2020 compared to the level of the year 1990′. The District Court based this order on the doctrine of hazardous negligence, which is read into the provision on tort in the Dutch Civil Code: behaviour is inter alia considered tortious if it unnecessarily creates danger and thus is contrary to what ‘according to unwritten law is deemed fit in societal interrelations’ (Article 6:162). Contrary to Urgenda’s claim, the District Court did not ground its conclusion directly on human rights law, as it held that Urgenda could not invoke human rights provisions stemming from the ECHR (nor could it invoke the United Nations Convention against Climate Change (UNFCCC)). Read the rest of this entry…

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Procedural Deference at Strasbourg: A Trend Calling for a New Admissibility Criterion?

Published on January 3, 2020        Author: 

This blogpost argues that including an additional admissibility criterion in the European Convention on Human Rights (the Convention) for cases that were carefully dealt with at the domestic level is worthy of serious consideration, if it corresponds to a desirable understanding of the European Court of Human Rights’ (the Court) subsidiarity vis-à-vis the States. In view of the Court’s practice discussed hereinafter, a formal inadmissibility-rule appears preferable over judicial ‘ad-hocery’.

The relevant practice relates to the Court’s ‘procedural turn’: the Court increasingly defers to State authorities on grounds of their diligent decision-making. I argue that the Court does so not only by granting a wide ‘procedural margin of appreciation’, but also by outrightly declaring applications inadmissible. Let me illustrate this with a Danish case (which I further discuss below) concerning an applicant who had obtained a residence permit as an unaccompanied minor and later received an expulsion decision due to his criminal record. The Court, declaring the complaint inadmissible, observed: ‘the domestic courts … carefully balanced the competing interests, took into account the criteria set out in the Court’s case-law and explicitly assessed … Denmark’s international obligations’ (Mohammad, § 35). The Court thus endorsed the domestic courts’ proportionality assessment due to their procedural diligence, instead of and abstaining from engaging itself in any weighing of the applicant’s rights against Denmark’s public order interests.

Although this inadmissibility-practice comes close to full deference on procedural grounds, it has not gained much attention. Neither has a proposal from the Council of Europe’s Steering Committee for Human Rights (CDDH) that suggested a new admissibility criterion corresponding to this practice, but was ultimately discarded.

The case-law

Estimating the prevalence of relevant inadmissibility decisions is laborious due to the number of decisions and their varying language. A number of relevant cases were brought against Denmark under Article 8 by applicants threatened with expulsion. Mohammad, mentioned above, is a good example. Read the rest of this entry…

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State-Empowered Actors in the European Court of Human Rights – State Sovereignty and Council of Europe Authority

Published on December 24, 2019        Author: 

 

Human rights conventions constitute a particular category of international law in respect of which individuals, exceptionally, are empowered to act because of their status as rights holders. Nowhere is this more evident than in regional bodies, such as the Council of Europe, which are founded on human rights conventions the ratification of which is a necessary criterion for membership. For the Council of Europe this convention is the European Convention on Human Rights. It is also mandatory for members States of the Council of Europe to accept the right of individuals aggrieved that their rights as contained in the ECHR have been violated to petition the European Court of Human Rights (ECtHR) for redress. Decisions of the ECtHR regarding applications are binding on the member State concerned and generally followed by other member States. The centrality of the individual as an applicant before the ECtHR is evidenced by the fact that the vast majority of the ECtHR’s case load consists of such applications. But individuals are not the only actors which participate in the interpretation of human rights. Non-state actors, in particular state-empowered actors, in the language of Sivakumaran, are increasingly relevant to making and shaping international law including its interpretation, application and development.

This blog examines the development of human rights interpretation by the ECtHR from a specific point of view: to what extent do instruments relevant to the rights contained in the ECHR, but adopted in Council of Europe institutions which consist of members appointed by the member States that are independent of those states and who do not represent them, establish evidence of agreement among the states? Read the rest of this entry…

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The ECHR and Gender Quotas in Elections

Published on December 19, 2019        Author: 

 

The ECtHR recently decided its first gender quota case, and another one is pending. The former dealt with a gender imbalance favoring male candidates, while the latter concerns a gender imbalance favoring female candidates.

There is no Europe-wide right to remedy the deficiencies in submitted candidatures.

In most European democracies, electoral authorities do not immediately and definitely reject faulty candidatures. Instead, they allow political parties a day or two to correct such deficiencies. In Zevnik and Others v. Slovenia, 54893/18, the ECtHR decided that the Convention does not guarantee a right to correct flaws and that a final rejection of a candidate list, without the possibility of correction, remained in line with the Convention. It is thus up to the member states to grant (or not) such a privilege to candidates and parties. In this case, the relevant candidate list was rejected for containing more males than allowed. On the other hand, Pečnik v. Slovenia, 53662/18, concerns a case in which, applying a rule that aimed at increasing female representation, the authorities disqualified a predominantly female list of candidates. This post endeavors to explain both cases.

Under the Slovenian Parliamentary Elections Act, on a district list of candidates, no gender may be represented by less than 35% of the total actual number of candidates. The first applicant in the Zevnik case was a female candidate who ran for the 2018 parliamentary elections. Her party had submitted lists with less than 35% of female candidates in two districts. One of the lists contained five male and two female candidates, while the other included six men and two women. Electoral authorities rejected the entire lists of candidates, without giving either the candidates or the parties any possibility to remedy these deficiencies.

The rejected parties subsequently complained that the electoral commissions should have allowed them to do so by amending or shorten the lists, allowing some male candidates to withdraw, removing some male candidates themselves, or rejecting the lists partially, rather than entirely. They maintained that the rejection of the complete candidate lists for an alleged failure to ensure gender‑balanced representation was a disproportionate sanction, especially as no other European democracy immediately and definitely disqualifies entire candidate lists for similar reasons. Read the rest of this entry…

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N.A. v. Finland – On the quality of the national authorities’ risk assessment and what the authorities should learn from the case

Published on December 17, 2019        Author:  and

 

On 14 November 2019, the European Court of Human Rights delivered a judgement in the case N.A. v. Finland (application no. 25244/18). The ECtHR found that Finland had violated Articles 2 and 3 of the European Convention on Human Rights when assessing an Iraqi man’s asylum application. Having exhausted all domestic remedies, the applicant’s father, an Iraqi man, returned to Iraq and was shot dead shortly after his return.  In N.A., the Court was not convinced that the quality of the assessment conducted by national authorities satisfied the requirements under Articles 2 and 3 of the Convention (§ 83). The case at hand was given unanimously by the first section of the Court in a relatively quick pace of time, which also gives weight for the message the Court aims to signal with its judgement.

The Facts

The applicant’s complaint was that the expulsion of her father, Mr A, violated Articles 2 and 3 of the Convention. Furthermore, the daughter complained that her father’s violent death had caused her considerable suffering under Article 3 of the Convention. The daughter claimed that the Finnish authorities (Finnish Immigration Service and the national courts) had not undertaken the risk assessment with necessary diligence (§ 43).

The applicant submitted that Mr A had been at risk not only because of his religious background as a Sunni muslim, but also due to his employment history; disagreement with a person who allegedly belonged to the Badr Organisation; a shooting incident at Mr A’s car; and a car bomb explosion which the applicant claimed had been targeted towards Mr A. The Finnish national authorities accepted that a risk could exist as a result of his employment history as a major in the army under Saddam Hussein and later on in an American logistics company. However, they did not agree that a risk occured as a result of the factors put forward i.e. the disagreement, shooting incident nor the car bomb explosion. Ultimately, the Finnish authorities regarded that the risk towards Mr A was improbable and that he would not personally be targeted but that the events were rather explained by the general security situation in Baghdad (§ 5-18).

Mr A applied for a stay on removal, which was not granted by the Supreme Administrative Court. Therefore, the removal order was enforceable. As a consequence, Mr A applied for assisted voluntary return to Iraq (§ 19). Mr A was granted the assistance and he thus left Finland on 29 November. His leave to appeal to the Supreme Administrative Court was rejected on 30 November, a day after his departure from Finland.

In December, the applicant received information from the neighbours of her relatives that her father, Mr. A, had been killed as a result of shots to the head and body (§ 22). Read the rest of this entry…

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For Whom the Bell of the European Convention on Human Rights Tolls? The Curious Case of Slovenia v. Croatia

Published on December 5, 2019        Author: 

 

“This case is unusual, yet important and also familiar”, was the opening statement by Mr. Jeremy McBride (Croatian counsel) at the admissibility hearing before the Grand Chamber of the European Court of Human Rights (the Court or ECtHR) in the case of Slovenia v. Croatia held on June 12. The case is also hot since Slovenia expects the Court’s decision on the admissibility by the end of 2019 or in the first half of 2020.

The case is unusual because it is the first EU inter-state application case and it is all about the rights of a legal person which can be classified as a governmental organization. Namely, Slovenia sued Croatia before the Court for alleged human rights violations of the state-owned bank Ljubljanska banka (LB) in Croatia. The case is familiar because the Court previously decided that LB is a governmental organization and therefore it does not have locus standi under Art 34 of the European Convention on Human Rights (the Convention) (see cases Ališić and Ljubljanska banka). The problem occurred during the era of Socialist Federal Republic Yugoslavia. It concerns Yugoslav banking system problems which emerged after the dissolution of Yugoslavia.

Slovenia states that the purpose of the case is a just solution for the old foreign-currency savings problem. By virtue of the Ališić judgment, Slovenia was obliged to pay the vast majority of old foreign-currency savings in Yugoslavia. Relying on the findings in that case, Slovenia expects the Court to remedy violation of LB’s rights committed by Croatia.

The factual background and the Court’s findings in Ališić and Ljubljanska banka cases are explained in detail in Janja Hojnik’s post on this blog. Therefore, I will not elaborate on the facts further, nor will I consider whether Croatian courts violated LB’s rights and denied justice. Instead, I will focus on one issue of importance: whether a state can bring an inter-state application before the ECtHR while at the same time the alleged victim cannot file an individual application

One important issue for the Court to resolve

Can Slovenia claim that Croatia violated LB’s rights under the Convention even though LB itself is not authorized to file an individual application? Read the rest of this entry…

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Mandatory Derogation from Human Rights in Overseas Armed Conflicts? A Response to the Policy Exchange Proposals

Published on November 27, 2019        Author: 

 

 

A recent paper published by Policy Exchange, Resisting the Judicialisation of War, sets out a range of policy and legislative proposals for the incoming UK government. In this blog post, I raise concerns over three recommendations in the paper.

Contextualising the proposals

In the background to the Policy Exchange paper is the Ministry of Defence (MOD)’s 2016 announcement of a “presumption to derogate” from the European Convention on Human Rights (ECHR), particularly in “future overseas operations”. Derogation is the mechanism built into the ECHR to provide flexibility in times of war or emergency. It enables States to modulate the scope of Convention obligations and take measures consistent with the Law of Armed Conflict (if applicable).

The MOD’s 2016 press release asserted that litigation followed military operations in Iraq and Afghanistan on “an industrial scale”, and that derogation would protect troops from persistent “vexatious claims”. Previous Policy Exchange reports, Fog of Law (2013), Clearing the Fog of Law (2015) and Protecting Those Who Serve (2019), placed the blame for such claims squarely on judicial decisions applying the ECHR to extraterritorial armed conflicts, including Al-Skeini v UK (2011) 53 EHRR 18 and Smith v MOD [2013] UKSC 41.

This resulted in what Policy Exchange calls the ‘judicialisation’ of war. The application of the ECHR to military operations is alleged to hinder commanders by generating risk aversion, leading to the hyperbolic claim that the military risks “defeat by judicial diktat”. The recent paper is the latest instalment in Policy Exchange’s coordinated efforts to sway UK policy in this area.

Derogation is the proposed workaround. Read the rest of this entry…

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Part I: What can be done about the length of proceedings at the ICC?

Published on November 15, 2019        Author:  and

 

Editor’s note: this is Part I of a two-part post.

“Judgement does not come suddenly; the proceedings gradually merge into the judgement.”

Franz Kafka, The Trial

Jean-Pierre Bemba made his first appearance before the Pre-Trial Chamber in July 2008. His trial began in November 2010 and lasted four years. Two more years passed before the Trial Chamber found him guilty in March 2016. Another two years passed before the Appeals Chamber finally acquitted him in June 2018. He had been in custody for almost a decade. Other trials at the ICC have lasted nearly as long.

Long proceedings are not unique to the ICC. The most striking case must be the Nyiramasuhuko et al trial at the ICTR. There were six accused, arrested between 1995 and 1998. The trial began in June 2001. All six were convicted ten years later, in June 2011. Their appeals were not resolved until December 2015, by which time one of them had been in detention, awaiting the final resolution of proceedings, for twenty years.

The problem of lengthy criminal proceedings plagues domestic judicial systems, too. Indeed, a significant number of applications before the European Court of Human Rights (“ECtHR”) concern alleged violation of the right to a fair trial within a reasonable time under article 6 of the European Convention of Human Rights (“ECHR”). The extent of the problem in certain countries has prompted the ECtHR to resort to the so-called ‘pilot judgment’ procedure.

What is a reasonable length for criminal proceedings? Read the rest of this entry…

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