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Home International Tribunals Archive for category "European Court of Human Rights" (Page 4)

Copenhagen: Keeping on Keeping on. A Reply to Mikael Rask Madsen and Jonas Christoffersen on the Draft Copenhagen Declaration

Published on February 24, 2018        Author:  and

The debate about the future of the European human rights system is absolutely vital, and with that in mind we venture here to reply to just some of the points made by Mikael Rask Madsen and Jonas Christoffersen in their post about the draft Copenhagen declaration.

Commenting on the position paper recently published by the European Court of Human Rights itself, Madsen and Christoffersen detect a ‘strikingly different tenor’ compared with our comments and those of other academics. However, the Court’s reticent tone is only what one would expect from an international judicial institution, in commenting on draft proposals by a member state of an inter-governmental institution such as the Council of Europe. We would observe that the Court’s apparent cautiousness should not be mistaken for consent to the proposals in the declaration. Indeed, we understand that the draft declaration has caused no little concern within the Council of Europe. We also understand that a number of states have already expressed their serious reservations about the way in which the draft declaration downplays the Court’s oversight, queries its independent judicial role, pronounces on how the Court should interpret and apply the Convention, and questions the principle of the universality of human rights. Closer to home, the Danish Helsinki Committee for Human Rights has called for its ‘complete revision’.

Subsidiarity

It is suggested by Madsen and Christoffersen that the declaration is simply codifying recent developments relating to subsidiarity, and they identify ‘an increased demand’ for subsidiarity since the Brighton Declaration. However, in its paper the Court underlines that the concept of subsidiarity is nothing new, and that it is context-dependent – a matter for the Court to assess in each case. Read the rest of this entry…

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The European Court of Human Rights’ View of the Draft Copenhagen Declaration

Published on February 23, 2018        Author:  and

The draft Copenhagen Declaration has already triggered some debate at this blog. So far the tone has been highly critical. Donald and Leach denounce the Declaration as essentially a tool for institutionalizing undue political pressure on the European Court of Human Rights (ECtHR) that risks jeopardizing the Court – even European human rights at large. Geir and Føllesdal follow suit and declare that the Declaration‘s mantra of dialogue and shared responsibility is a thinly concealed attempt at weakening the court and empowering states.

The Court itself has now published its own Opinion on the draft Declaration and it has a strikingly different tenor than that of the cited academics. That difference, we will argue, is not simply the effect of different institutional roles, but also of a different appreciation of the problems facing the ECtHR in terms of case-load and the need for an enhanced and more structured dialogue between the major stakeholders in the system in order to safeguard the Court’s institutional authority.

In fact, the Court and its President, Guido Raimondi, have very openly recognized that the Court faces two fundamental challenges. In a speech in Nijmegen on 18 November, 2016, he noted that, first, ”the very high number of cases” was ”a cause of great concern to the Court”, but that it faced another fundamental challenge:

“The second challenge is of a different nature. It is essentially a political one. The challenge is to the very idea of the Convention system. It questions the authority, and even the legitimacy of the European Court of Human Rights.”

The draft Copenhagen Declaration is an attempt at addressing precisely these two fundamental challenges: caseload and authority. Read the rest of this entry…

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Council of Europe’s Committee of Ministers Starts Infringement Proceedings in Mammadov v. Azerbaijan: A Victory for the International Rule of Law?

Published on February 5, 2018        Author:  and

On 5 December 2017 it finally happened: the Committee of Ministers of the Council of Europe (‘the Committee’) launched for the first time ever in the history of the European Convention of Human Rights (‘ECHR’) infringement proceedings for non-implementation of a judgment of the European Court of Human Rights (‘ECtHR’), namely against Azerbaijan concerning the Mammadov case. While this development has already, and rightly so, been described as “nuclear” and “historic” elsewhere in the blogosphere, it still warrants some further analysis.

Supervision of the execution of judgments of the ECtHR: Infringement proceedings

Under Article 46 § 2 ECHR, it is the Committee that supervises the execution of the judgments of the ECtHR. According to article 46 § 4 ECHR, it may refer to the Court the question whether a given member State has fulfilled its obligation to abide by a judgment in a case to which it is a party. These so-called infringement proceedings were introduced in 2010 under Protocol No° 14 to provide the Committee with a wider range of means of pressure so as to better secure the execution of the Court’s judgments. So far, however, launching such proceedings had remained a mere theoretical possibility. Despite calls from both civil society and scholars, the Committee, a political body made up by diplomats from each member State, had either been unwilling to use this mechanism, or had never attained the necessary two-thirds-majority required for such a court referral.

There certainly is no lack of execution problems in the Strasbourg system, and it seems that in the last years such problems have rather increased than decreased. It suffices to refer to the non-implementation of the 2009 Sejdic and Finci judgment by Bosnia and Herzegovina, the 12-year-long saga around the UK’s prisoner voting case Hirst (which, however, by now seems to have been resolved, albeit maybe not fully), the Russian opposition to judgments from the ECtHR, and Italy’s almost perpetual struggles to reform its judiciary after thousands of ECtHR’s judgments identifying structural problems that go back to the 1990s as only some of the most prominent examples, as well as the non-implementation by Ukraine of the Ivanov pilot judgment leading to the recent dismissal of more than 12.000 applications in the Burmych case. Yet it is only the Mammodov case which has now brought the Committee to take action under article 46 § 2 ECHR. Read the rest of this entry…

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New EJIL: Live! Interview with Merris Amos on her Article “The Value of the European Court of Human Rights to the United Kingdom”

Published on December 7, 2017        Author: 

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Merris Amos of Queen Mary University of London, whose article “The Value of the European Court of Human Rights to the United Kingdom” appears as the first piece in the “Focus” section on Human Rights and the ECHR in issue 3 of volume 28 of the Journal.

Professor Amos takes up the challenge of articulating the value that the ECtHR adds to the objective of protecting human rights. Moving the focus from legitimacy, Professor Amos presents three different levels where the ECtHR adds value: individual, global and national. This serves as a framework for the discussion on the rise of negative sentiment towards the Council of Europe in the United Kingdom and introduces—as well as debating—the three levels of value added to the United Kingdom by the ECtHR. This conversation accompanies and expands on the article, including conjectures about the future of the European Convention on Human Rights in the United Kingdom.

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A Danish Crusade for the Reform of the European Court of Human Rights

Published on November 14, 2017        Author: 

Tomorrow (15 November) Denmark will take over the rotating chairmanship of the Council of Europe (CoE). The CoE was established in 1949 and has since adopted numerous treaties, including the 1950 European Convention on Human Rights (ECHR). Denmark is a CoE founding member and has traditionally been a strong supporter of human rights. Yet the Danish Government has announced that the chief priority of its chairmanship will be the reform of the European human rights system. This announcement may come as a surprise to the readership of this blog. This post therefore summarises the vicissitudes that have led to the Danish Government’s initiative, and provides some early reflections on its expected impact.

Why does Denmark want a reform?

Immigration has long been a dominant theme in Danish politics. In the late 1990s, the Danish People’s Party (DPP) began to denounce immigration, multiculturalism and Islam as alien to Danish society and values. Since 2001, the DPP has supported various minority coalition governments and gained extensive influence on Denmark’s immigration policy, which is now one of the most restrictive in Europe.

Critique of the ECHR is not new in Denmark, where much debate has focused on the influence of the Convention on the deportation of the foreign criminals. Read the rest of this entry…

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Is N.D. and N.T. v. Spain the new Hirsi?

Published on October 17, 2017        Author: 

On 3 October the Third Chamber of the European Court of Human Rights published its judgment N.D. and N.T. v. Spain, which concerns Spain’s pushback policy in Melilla. It found a violation of Article 4 of Protocol 4 (prohibition of collective expulsions of aliens) and of Article 13 (right to an effective remedy) taken together with Article 4 of Protocol 4. This post focuses on the issues of jurisdiction and the prohibition of collective expulsions addressed in the judgment, as well as its policy implications. 

Facts

The facts of the case are straightforward: on 13 August 2014 a group of Sub-Saharan migrants, including the applicants, tried to enter Spain via the Melilla border crossing which consists of three consecutive barriers. They managed to climb to the top of the third barrier. When they climbed down with the help of the Spanish forces, they were immediately apprehended by members of the Spanish civil guard and returned to Morocco in the company of 75 to 80 other migrants who had attempted to enter Melilla on the same date. Their identities were not checked and they did not have an opportunity to explain their personal circumstances or to receive assistance from lawyers, interpreters or medical personnel.

Jurisdiction

Spain argued that the events occurred outside its jurisdiction because the applicants had not succeeded in getting past the barriers at the Melilla border crossing and therefore had not entered Spanish territory. The Court first recalled its general principles on jurisdiction (paras 49-51), referring in particular to Hirsi Jamaa and Others v. Italy, and specifying that when the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation to secure the rights and freedoms that are relevant to the situation of that individual (para 51). Applying these principles to the facts of the case, the Court first observes that:

‘la ligne frontalière entre le Royaume du Maroc et les villes de Ceuta et de Melilla a été délimitée par les traités internationaux auxquels les Royaumes d’Espagne et du Maroc sont parties et qu’elle ne peut pas être modifiée à l’initiative de l’un de ces États pour les besoins d’une situation de fait concrète’ (para 53).

Yet in the next paragraph the Court explains that it is unnecessary to establish whether the border crossing between Morocco and Spain is located on Spanish territory because:

dès lors qu’il y a contrôle sur autrui, il s’agit dans ces cas d’un contrôle de jure exercé par l’État en question sur les individus concernés (Hirsi Jamaa, précité, § 77), c’est-à-dire d’un contrôle effectif des autorités de cet État, que celles-ci soient à l’intérieur du territoire de l’État ou sur ses frontières terrestres. De l’avis de la Cour, à partir du moment où les requérants étaient descendus des clôtures frontalières, ils se trouvaient sous le contrôle continu et exclusif, au moins de facto, des autorités espagnoles.

Read the rest of this entry…

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(Non-)Recognition of De Facto Regimes in Case Law of the European Court of Human Rights: Implications for Cases Involving Crimea and Eastern Ukraine

Published on October 9, 2017        Author: 

In an increasing number of cases, the European Court of Human Rights (‘ECtHR’, ‘the Court’) has been dealing with the question of the application of the European Convention on Human Rights (‘ECHR’, ‘Convention’) on territories which are outside the control of the state to which they belong. Such lack of control is either because of the occupation by a foreign state or because of the control by a separatist movement, as a rule, established and/or existing with the aid of a foreign state. One of the issues that arises in this context is the (non-)recognition of the regime that exercises control over such territory (the de facto regime).

This blog post looks at the Court’s existing approaches to the (non-)recognition of de facto regimes. It then discusses the implication of this approach for cases involving Eastern Ukraine and Crimea that may come before the Court and require it to deal with the question of (non-)recognition.

Existing approaches

The issue of (non-)recognition becomes particularly relevant when the Court is called on to assess proceedings conducted by the courts of a de facto regime in the light of the Convention. The Court has dealt with the issue of (non-)recognition when deciding on the exhaustion of domestic remedies at the admissibility stage, and on claims relating to freedom from arbitrary detention and the right to a fair trial at the merits stage. Read the rest of this entry…

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Barbulescu v Romania: Why There is no Room for Complacency When it Comes to Privacy Rights in the Workplace

Published on September 26, 2017        Author: 

For some privacy advocates, the decision earlier this month of the Grand Chamber of the European Court of Human Rights (ECtHR) in Barbulescu v Romania was another milestone in the pursuit of greater protection for employee privacy. Reversing a decision of the Fourth Section last year, the Court held that the monitoring of an employee’s Yahoo Messenger account breached his right to respect for private life in Article 8. While it would be churlish to contradict such claims, this is no time for complacency.

Mr. Barbulescu was a sales engineer working for a private company in Romania. The company in question prohibited the use of its equipment (including the internet) for personal use – a policy it robustly enforced with dismissals for transgressors – facts which Mr. Barbulescu was made aware of. At his employer’s request, Mr. Barbulescu opened a Yahoo Messenger Account in order to communicate with customers. He was subsequently told that this account had been monitored, revealing that it had been used for personal purposes. When Mr. Barbulescu denied this claim, he was presented with a transcript of the content of his messages. These included exchanges with his brother and his fiancé, some of which were of an intimate nature. Mr. Barbulescu was fired. He challenged his dismissal in the domestic courts alleging that it breached his right to private life. Those claims were dismissed and Mr. Barbulescu brought his case to Strasbourg. Read the rest of this entry…

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Twenty Years of the ECHR in Ukraine

Published on September 18, 2017        Author:  and

Twenty years ago, in September 1997, the European Convention on Human Rights (ECHR) entered into force for Ukraine. By ratifying the Convention, Ukraine recognised the compulsory jurisdiction of the European Court of Human Rights (ECtHR). While Ukraine had been a party to a number of the international human rights instruments, including the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, long before the ECHR, joining the ECHR had a special significance. It symbolised a European choice of Ukraine, a final breakaway from the Soviet past, and (at least on paper) the acceptance of the European values of democracy and respect for human rights. Making the determination to join the Council of Europe (CoE) and its fundamental legal instruments, however, was easier than to maintain Ukraine’s international obligations in practice. In fact, there had been times when the CoE seriously considered to terminate the membership of Ukraine altogether (in 1999, for example, for the failure to abolish the death penalty).

This post will not cover all the intricacies of the complex (and at times turbulent) relationship between Ukraine and the CoE. We will start with a brief review of the statistics regarding the current situation, in particular the ECtHR case law concerning Ukraine. Then, we will focus on the reasons why Ukraine is still one of the laggard states in terms of the numbers of applications and violations to the ECtHR. Further, we will discuss Read the rest of this entry…

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Charlie Gard: An Ethical Analysis of a Legal non-Problem

Published on August 9, 2017        Author: 

For those with an internet connection and an interest in current affairs, the story of Charlie Gard been hard to avoid recently. A decent précis is available here; but it’s worth rehearsing.

Shortly after his birth, Charlie’s health began to deteriorate, and he was diagnosed with a terminal and incurable mitochondrial DNA depletion syndrome. By March 2017, Charlie needed artificial ventilation, and doctors at Great Ormond Street Children’s Hospital (GOSH) applied to the High Court for confirmation that removing that ventilation would be lawful, having judged that it was not in his best interests. This was contested by his parents, Chris Gard and Connie Yates; the High Court ruled in favour of GOSH. This was confirmed by the Supreme Court and the European Court of Human Rights. During all this time, Charlie remained ventilated.

In the High Court, Mr Justice Francis said that his decision was subject to revision should new evidence emerge favouring continued treatment; in July, Charlie’s parents returned to the High Court, claiming that Charlie might benefit from an experimental treatment being offered by Professor Michio Hirano of Columbia University. However, as proceedings advanced, it became clear that Hirano’s proposed treatment had never been used on patients like Charlie, that he had neither seen Charlie nor read his notes when he offered the treatment, and that he had a financial interest in that treatment. The position statement issued by GOSH on the 24th July barely hides the hospital’s legal team’s exasperation. On the 24th July, Charlie’s parents dropped their request for continued treatment. The details of Charlie’s palliative care were still disputed; his parents wanted it to be provided at home, with ventilation maintained for a few days. The High Court ruled against this on the 27th July. Charlie was moved to a hospice; his ventilator was removed, and he died on the 28th July, a few days before his first birthday. Read the rest of this entry…

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