Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime

The European Court of Human Rights (ECHR) is the crown jewel of the world’s most advanced international system for protecting civil and political liberties. In recent years, however, the ECHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR). This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECHR should strive for individual or constitutional justice, but rather as raising more fundamental questions concerning the Court’s future identity. In particular, the article argues for recognition of ‘ embeddedness ’ in national legal systems as a deep structural principle of the ECHR, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECHR’s deference to national decision-makers is appropriate

Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime

The European Court of Human Rights (ECHR) is the crown jewel of the world’s most advanced international system for protecting civil and political liberties. In recent years, however, the ECHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR). This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECHR should strive for individual or constitutional justice, but rather as raising more fundamental questions concerning the Court’s future identity. In particular, the article argues for recognition of ‘ embeddedness ’ in national legal systems as a deep structural principle of the ECHR, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECHR’s deference to national decision-makers is appropriate

The Russian Federation, protocol no. 14 (and 14 bis), and the battle for the soul of the ECHR

With a focus on the Russian Federation, this article examines the adoption by the Council of Europe of Protocol No.14 to the European Convention on Human Rights (ECHR), and its long-delayed coming into force. The author starts with the question of the original object and purpose of the Council, and how they have now changed. This leads to an analysis of the nature of the crisis – a crisis of success – now faced by the ECHR system, and the reform process which started, on the 50th anniversary of the ECHR, in 2000. After describing Protocol No.14 itself, and the discussion which has surrounded it, the article turns to the central issue. This is not the question of procedural reform, or even admissibility criteria, but what lies behind – the “soul” of the ECHR system. Should the Strasbourg Court remain a court which renders “individual justice”, albeit only for a handful of applicants and with long delays; or should it make become a court which renders “constitutional justice”? The article focuses on the specific problems faced by Russia in its relations with the Council of Europe; and an analysis of the lengthy refusal by the Russian State Duma to ratify Protocol No. 14. The author concludes with an attempted prognosis

Are diplomatic assurances adequate guarantees of safety against torture and ill-treatment? The pragmatic approach of the strasbourg court

The use of diplomatic assurances against torture and other ill-treatment has increased in recent years in response to the continued growth of international terrorism. However, this practice is controversial because it engages the Contracting States’ obligation not to extradite or expel a person where there are substantial grounds for believing that he or she would face a real risk of being subjected to treatment contrary to Article 3 ECHR in the receiving State. The Strasbourg Court’s pragmatic approach suggests that in certain circumstances, following an analysis of the quality of the assurances and their practical effect, diplomatic assurances can be adequate guarantees of safety. As a result, it will be argued that the Strasbourg Court cannot be accused of circumventing the absolute prohibition found in Article 3 ECHR by accepting the diplomatic assurances policy of the Contracting States. The author will conclude by arguing that the Strasbourg Court’s approach is effective as it reinforces the absoluteness of Article 3 ECHR while at the same time allowing States to protect their national security from terrorism

European Court of Human Rights : Beizaras and Levickas v. Lithuania

In a case about hate speech against homosexuals on Facebook, the European Court of Human Rights (ECtHR) delivered an important and well-documented judgment (of 61 pages.) The ECtHR found that the Lithuanian authorities have violated the European Convention on Human Rights (ECHR) because they had not fulfilled their positive obligations to protect the targeted persons against discrimination (Article 14) and against breach of their privacy (Article 8). The ECtHR also came to the conclusion that Lithuania has not effectively responded to the applicants’ complaints of discrimination on account of their sexual orientation, and that this amounted to a violation of Article 13 ECHR (right to an effective remedy). In this case the Lithuanian authorities had refused to initiate pre-trial investigations into the reported messages inciting to hatred and violence based on sexual orientation. The ECtHR build its findings on the positive obligation by state authorities to secure the effective enjoyment of the rights and freedoms under the ECHR, while this obligation is of particular importance for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimisation. According to the judgment, authorities are to combat hate speech and homophobic hate crimes, applying criminal law, as a justified and necessary interference with the right to freedom of expression

The EU's Accession to the European Convention on Human Rights: An International Law Perspective

Article 6(2) of the Treaty on European Union establishes that the Union “shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” In early 2013, negotiators of the 47 Council of Europe member states and the European Union finalised a draft Accession Agreement that would allow the EU to accede to the Convention. In this article I examine the issues and challenges that EU accession poses from an international law perspective. Much of the literature on the EU accession has focused on the effect that this process will have on the EU legal order, including questions regarding its autonomy. Yet EU accession also raises important issues for international law. It is another example of an international organization taking part in a legal system designed exclusively for participation by state parties. To what extent should the EU participate on an equal footing with the other contracting parties, and when are special rules required to take into account the nature of the EU legal order? The article explores the broader issues that arise when the EU seeks to participate in its own right in the international legal order. It is submitted that the EU’s accession to the ECHR is not only an important step for the EU legal order, but also a highly significant development for public international law

Legal opinion/expert report in the case of Rocio San Miguel Sosa and others v. Venezuela, case nr. 12.923, on request of the Inter-American Court on Human Rights : Expert report in the case of Rocio San Miguel Sosa and others v. Venezuela

First the report examines the preliminary question whether signing a statement or a petition in a political context, such as a petition to carry out a recall referendum on the term of office of a head of state, is to be considered as an act of exercising the right to express a (political) opinion (by a civil servant or employee in the public sector), guaranteed by Article 19.2 ICCPR and/or Article 10 § 1 ECHR. Second it analyzes under what circumstances a termination of employment contract or dismissal of an employer or civil servant is to be regarded as an interference with the right to freedom of expression, and in particular in case the public authority or employer bring forward that the termination of contract or dismissal is unrelated to the exercise of the right to freedom of expression by the employee or civil servant. - Next this report will focus on the (limits of the) right to political freedom of expression in the employment relation, including the public sector, and on the (limitations of the) right to express political, critical or non-neutral opinions about the head of state, the government or other public institutions. Therefore it will elaborate on the criteria and conditions that may justify an interference with the right to (political) freedom of expression of public servants and employees in the public sector. It will also clarify in what circumstances an interference with this right amounts to a violation of Article 19 ICCPR or Article 10 ECHR, with references to the UN Human Rights Committee General Comment No. 34 “Article 19. Freedoms of opinion and expression” and especially analyzing and reporting the relevant case law of the European Court of Human Rights

Protecting Human Rights in the European Union: An Argument for Treaty Reform

This Note argues that the European Community ( EC ) should amend the European Community Treaty to provide authority for EC accession to the European Court of Human Rights ( ECHR ) because the belief in and protection of human rights must be at the core of a thriving constitutional legal system. As the EC continues to grow geographically, its legal competences must also grow to deal with the challenges of building a singular, unified Europe from traditionally autonomous European states and EC institutions. Part I of this Note explains the institutions of the EC, examines the principles and objectives of the ECHR and its present application in the EC, and discusses current human rights protection in the EC. Part II considers the objectives of a unified Europe, the conflicting opinions regarding EC accession to the ECHR, and the present lack of codification of human rights legislation in the EC. Part III argues that the necessity of enumerated, uniformly enforceable human rights protections at the EC level overrides claims that the EC should not extend its competences to include accession to the ECHR. This Note concludes that the EC should amend the European Community Treaty to include a provision for accession to the ECHR