The European Court of Justice and European Court of Human Rights: A complex interaction and coexistence between the two courts

Emma Lehtinen, Doctoral student, University of Tampere

  1. The Lisbon Treaty and the European Union’s accession to the European Convention on Human Rights

The aim of this paper is to examine the human rights jurisdiction of the European Court of Human Rights (the Strasbourg court) and European Court of Justice (the Luxembourg court), and to consider how they interact with each other. First, the paper looks at how these two courts acknowledge each other’s existence and cite each other’s case law. This paper examines this complex coexistence mostly from the European Court of Justice’s point of view since the EU Charter of Fundamental Rights was made formally binding by the Treaty of Lisbon in 2009. The risk of overly fragmented case law between the Convention and the Charter of Fundamental Rights is a new source of conflict, especially after the Treaty of Lisbon.

According to the Article 6(2) of the Treaty, the EU will accede to the European Convention on Human Rights. However, the accession should not affect the Union’s competences. During the past year, the European Union’s accession to the European Convention on Human Rights has become one of the most topical issues in Europe, especially after the European Court of Justice’s ruling of the access of the EU to the Convention. The infamous 2/13 opinion condemned the draft agreement outright. Not only did the court find many issues to criticize, the court also ruled that the draft agreement was incompatible with the Treaties. This criticism will undoubtedly have some influence on the future accession. It was also said that the EU Charter would neither undermine the Convention nor the role of the Strasbourg court. Nevertheless, there has been notable problems and the relationship between the European Court of Justice and the European Court of Human Rights has produced a major concern on the part of the Luxembourg court, which is mostly concerned about its own autonomy and authority to rule on matters of EU law.

The Luxembourg court also highlights an autonomous EU approach to the interpretation of the Charter. In addition, one of the most interesting questions is that the court did not address Article 52(3) of the Charter at all. According to Article 52(3), “Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection”. Overall, Article 52(3) establishes the minimum level of protection and also an opportunity to improve the existing level. However, the application of this Article will always include some level of hesitation. Because of this, the case law is extremely important in determining the level of protection provided by the Convention. Because of this, it is highly important that both courts cite each other’s case law extensively and in detail. The importance of this matter increased exponentially after the Treaty of Lisbon was signed. However, as this paper indicates, this is not always the case. Currently, the citings are rather terse, mechanical, rare, and non‑specific in their nature.

2. The reluctance of the Luxembourg Court to draw on comparative Law, and the residual role of the Convention

Both courts are making more frequent use of each other’s case law, which has also lessened the chances of contradictory rulings. Human rights have gained a more important role in the EU. However, the Luxembourg court’s new and broader human rights jurisdiction is mostly focused on preserving its own status and the supremacy of EU law. Since human rights law is vastly regulated in European law, both courts tend to use of each other’s case law in a rather terse manner. The Luxembourg court’s fear of losing its autonomy and/or jurisdiction explains to some extent the lack of coherence and uniformity in the use of case law. The rarity and selectivity, however, indicates the Convention’s residual role in the Luxembourg court’s rulings. As both courts are transnational, much of their case law is built on their own general principles of law. It is understandable that both the European Court of Justice and European Court of Human Rights pursue their own autonomy and control while trying to avoid conflicts. However, it should be noted that there must be mutual awareness by the courts to avoid unnecessary conflicts out of ignorance. Due to this acknowledgment, each court needs to tread carefully in the present complex jurisdictional arena.

So far, the European Court of Justice has emphasized an autonomous EU approach to the interpretation of the Charter. Since 2009, the Luxembourg court has cited the Strasbourg court’s case law and the Convention increasingly less frequently. In most cases, the Luxembourg court’s judicial reasoning and citing technique is formulaic, impersonal, and fairly minimalist in style. Of course, some judgments can be singled out in which the Luxembourg court has used more detailed argumentation. However, even after the Treaty of Lisbon, this practice is still extremely rare. In interpreting and establishing human rights standards under the EU Charter, the Luxembourg court still rarely relies on other international case law in its rulings. Acting thus, it also misses an opportunity to strengthen and legitimize its rulings in the eyes of European citizens. In 2009─2012, the Luxembourg court made reference to or drew on provisions of the EU Charter in 122 judgments. The Luxembourg court substantially analysed one or more provisions of the Charter in 27 of 122 judgments. Within these 27 cases, the case law of the Strasbourg court was referred to in 10 cases and in all of these cases, the court approved the reasoning of the Strasbourg court. In the remaining 95 cases, the reference was only in passing. The Luxembourg court referred to the Convention in 18 of these 122 cases, and the Advocate General made 34 references. Only eight cases included the Convention provision in the Luxembourg court’s reasoning.

In recent years, the application of Article 52(3) by the Luxembourg court has undergone some changes. The Luxembourg court does not participate in detailed case law analyses even where such references are required under Article 52(3). It seems that only the Advocates General of the Luxembourg court do not seem to follow the court’s trend. The worst-case scenario is that in future there will be two sets of case law on the same fundamental rights; this would not help to promote the legal certainty in Europe. Nevertheless, this type of autonomy has no basis either in the Charter or in the Treaty of Lisbon. All things considered, the problem is rather paradoxical. The accession of the EU to the Convention may offer some order in this issue, but does it solve the problem?

References

Callewaert, Johan: The accession of the European Union to the European Convention on Human Rights. Council of Europe Publishing, August 2014.

Callewaert, Johan: The European Convention on Human Rights and European Union Law: a Long Way to Harmony, European Human Rights Law Review (no. 6, 2009) pp. 768–783.

Charter of Fundamental Rights of the European Union (2010/C 83/02).

De Búrca, Gráinne: After the EU Charter of Fundamental Rights: the Court of Justice as a human rights adjudicator, Maastricht Journal of European and Comparative law.

Douglas-Scott, Sionaidh: A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis. Common Market Law Review (2006) 43, pp. 629–665.

Explanations relating to the Charter of Fundamental Rights (2007/C 303/02).

Morano-Foadi, Sonia; Andreadakis, Stelios: Reflection on the Architecture of the EU after the Treaty of Lisbon: The European Judicial Approach to Fundamental Rights. European Law 9/2011, pp. 595–610.

Opinion 2/13, Opinion of the Court (Full Court) of 18 December 2014.

Pérez, Aida Torres: Conflicts of Rights in the European Union: A Theory of Supranational Adjucation. Oxford University Press. 2009.

Polakiewicz, Jörg: EU Law and the ECHR: Will EU Accession to the European Convention on Human Rights Square the Circle? 9/2013.

Tulkens, Francoise: EU Accession to the European Convention on Human Rights. European Judicial Training Network, Human Rights and Access to Justice Seminar, 1.3.2013.

Protocol No. 16 of the ECHR in CJEU Opinion 2/13: Analysis and perspectives

Nasiya Daminova

PhD candidate in European Law, Scuola Superiore Sant’Anna, DIRPOLIS Institute, Pisa.

Introduction

The Brighton Declaration (2012) saw both the EU accession to the European Convention on Human Rights (ECHR) and Protocol No. 16 as the means to “enhance the coherent application of human rights in Europe”, which would clarify the scope of principles of subsidiarity and the margin of appreciation among Contracting Parties.[1] Protocol No. 16 of the ECHR was designed as a “protocol of dialogue”, as it allowed the highest courts and tribunals of a High Contracting Party (including the EU Member States) to request the European Court of Human Rights’ (ECtHR) advisory opinions, therefore developing the Brighton Declaration’s adherence to the principles of subsidiarity and the margin of appreciation among Council of Europe Member States. The Protocol has an optional status and the advisory opinions are of a non-binding nature; thus, it has not been seen as a possible issue during the 47+1 group negotiations on the EU accession to the ECHR.[2]

At the same time, in Opinion 2/13 on EU accession to the ECHR, the Court of Justice of the EU (CJEU) interpreted Protocol No. 16 as a possible threat to the autonomy of EU law. The destiny of Protocol No.16 in the EU Member States (which are all the ECHR signatories) is now uncertain. The aim of this paper is to explore the destiny of Protocol No.16 in the light of CJEU Opinion 2/13, given the incredible uncertainty surrounding this issue. Firstly, this paper elaborates on the CJEU reasoning in interpreting the position of Protocol No. 16 within the EU legal order. Secondly, an attempt is made to assess the possible after-effects of Opinion 2/13 on the future of Protocol No. 16 in the EU Member States.

 

Protocol No. 16 of the ECHR in CJEU Opinion 2/13: A “threat” to the primacy of EU law

The Court of Justice took an extremely protective approach in Opinion 2/13 while interpreting the role of the preliminary rulings procedure in the light of Protocol No. 16 of the ECHR. Evidently, the CJEU connected the possible effects of Protocol No. 16 with two fundamental theoretical issues: the importance of the preliminary reference procedure as an integral part of the EU judicial system and its role in the protection of the primacy of EU law within the EU legal order.

The legal reasoning of the CJEU in this part of the judgment expresses the concern that Protocol No. 16 might undermine the effectiveness of the preliminary ruling procedure guaranteed by Art. 267 of the Treaty on the Functioning of the European Union (TFEU). In accordance with Art. 1 of Protocol No. 16, “the highest courts and tribunals of a High Contracting Party … may request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”. At the same time, Art. 267 (3) of the TFEU obliges the same courts (i.e. “a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law”) to bring the matter before the CJEU. As a result, the supreme courts or tribunals of the EU Member States will be allowed to submit questions concerning, for example, the interpretation of rights guaranteed by the Charter corresponding to those secured by the ECHR, thus to the European Court of Human Rights (ECtHR) instead of the CJEU. The Draft Accession Agreement did not include any provisions with respect to the relationship between the mechanism established by Protocol No. 16 and the preliminary ruling procedure provided for in Article 267 of the TFEU, which (at least in the eyes of the CJEU judges) made Protocol No. 16 a threat to the external autonomy of the EU legal order. This Court’s approach quite evidently demonstrated an awareness of the interpretative competition between the European Courts and the risk of conflicts after accession.[3]

It will be argued that the position of the CJEU expressed in Opinion 2/13 illustrates the development of the previous lines of reasoning in the Melki and Abdeli[4] and A v. B  cases as both of these cases deal with the goals and the role of the preliminary reference procedure for EU law development. In the Melki and Abdeli and the A v. B cases, In the Melki and Abdeli and the A v. B cases, the emphasis was made on the right of the EU Member States’ courts to submit to the CJEU any questions concerning the interpretation of the European law at any stage of national proceedings they consider necessary . Therefore, all interlocutory procedure(s) prescribed the within national legal system, effectively preventing national courts from referring questions to the CJEU, shall be prohibited under Art. 267 of the TFEU. In Opinion 2/13, the CJEU goes even further, describing the preliminary reference procedure as the “the keystone of the judicial system established by the Treaties”. It will be affected if no special provisions are made to balance the relationship between Protocol No.16 and the preliminary ruling procedure of Art. 267 of the TFEU, as it will violate the autonomy and effectiveness of the latter procedure.[6] The Court continued the Melki and Abdeli and the A v. B line of reasoning by emphasizing the importance of the preliminary references for the unity and efficiency of European Law, making even the legal protection of the individual secondary to these purposes. Therefore, Opinion 2/13 may be considered a manifestation of the primacy of European law even in the area of the human rights protection, and thus a step back from the virtues of Article 52(3) of the Charter of Fundamental Rights, by which EU law has previously limited the scope of its autonomy, namely as regards those rights which the Charter has borrowed directly from the Convention.

 

Final remarks

In light of what has been argued, Opinion 2/13 does not seem to favour the further signature of Protocol No. 16 of the ECHR by the 19 remaining EU Member States and its ratification by 26 EU Member States, which may even raise doubts concerning the Protocol’s entry into force (10 are ratifications necessary). The interest among the candidate states (the former Yugoslav Republic of Macedonia, Montenegro, Serbia, and Turkey) and the potential candidate states (Bosnia and Herzegovina) in joining Protocol No.16 is likely to remain modest as well, while the other members of the Council of Europe may continue to sign and ratify the Protocol No. 16 to use the advantage of preliminary consultation with the ECtHR.

Nevertheless, even the controversial situation when Opinion 2/13 de facto precludes the EU Member States from joining Protocol No. 16 should not necessarily be seen as a negative one. By doing so, the CJEU excluded the opportunity of the supreme courts of the EU Member States to ask for the advisory opinion of the ECtHR after the previous national court has already been given the CJEU’s preliminary ruling in the same procedure. Moreover, it postpones possible issues that could arise because of different national treatments of the ECHR provisions in conjunction with the application of Protocol No. 16. It also allows for avoiding conflicts in interpretation of the analogous ECHR and Charter provisions by the Strasburg and Luxembourg Courts – at least until the necessary legal environment for the use of Protocol No. 16 within the EU legal order is created.

It is quite likely that the EU accession to the ECHR itself will be delayed for an indefinite period of time. This is due to the difficulty of reaching a consensus on a new version of the Draft Accession Agreement with all members of the Council of Europe (such as Russia, Ukraine, and Turkey) in the near future. At the same time, one should remember that the European Union accession to the European Convention on Human Rights and Fundamental Freedoms remains a legal duty in accordance with Art. 6 of the TEU, Protocol No. 8 of the TEU and the TFEU, and Declaration No. 2 on Article 6(2) of the TEU. It is likely that the EU will choose another tactic in the next round of the negotiations by focusing on internal implementation. However, only time will tell which direction the Luxemburg and Strasburg negotiators will take to further protect the autonomy of the EU legal order.

[1]Paras. 9(i), 36, The Brighton Declaration on the future of the European Court of Human Rights <http://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf > accessed 8th September 2015, paras. 9(i), 36.

[2] For a comment on the hearing of May 2014 at the ECJ concerning this Opinion, see Stian Oby Johansen, “Some thoughts on the CJEU hearing on the Draft EU – ECHR Accession Agreement. Part 1 of 2” (Øby-kanalen, 6 May 2014) <https://obykanalen.wordpress.com/2014/05/06/some-thoughts-on-the-ecj-hearing-on-the-draft-eu-echr-accession-agreement-part-1-of-2> accessed 8th September 2015.

[3] Giuseppe Martinico, “Four Points on the Court of Justice of the EU. Perspectives on Federalism” (2014) 6 Perspectives on Federalism (Issue 3) pp. 102–125, 114.

[4] Joint cases of C-188/10 and C-189/10, Aziz Melki and Sélim Abdeli [2010] ECR I-5667.

[5] Case A v B and Others [2014] Judgment of the Court (Fifth Chamber), 11th September 2014.

[6] Opinion 2/13, Re Accession of European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms [2014] Opinion of the Court (Full Court), 18th December 2014, paras. 197–199.

 

The European Court of Human Rights as an interpreter of human rights: The case of undocumented migrants

Elina Todorov

Doctoral student, University of Tampere

”Irregular migrants cannot be left outside the scope of the interpretation of the ECtHR and international human rights organs. In the future, the ECtHR will be obliged to draw a clearer line when it comes to irregular migrants and their treatment”.

The international and European human rights system has a solid base in the European Court of Human Rights (ECtHR) for interpreting human rights declared in the European Convention on Human Rights (ECHR). European policy‑makers and stakeholders refer to the ECtHR’s case law whenever dealing with issues that could be open to various interpretations or when following a certain policy or recommendation, to mention just a few instances. Migration issues have received attention in the ECtHR’s case law for many years. However, the status of irregular migrants remains an issue that should acquire more visibility in the ECtHR’s case law.

Based on a commonly agreed principle in international law, States have a right to control the entry and stay of aliens on their territory. This refers to the States’ wide margin of appreciation when cases concern rights that require financial resources like economic and social rights. However, the ECtHR’s case law is especially charged due to the nature of the cases it has assessed, since they often have confluences to the type of cases that require special actions from the State. Economic and social rights often require that a State, under its positive obligations, secures effective protection for the fulfilment of these rights for individuals. Thus, the ECtHR has to be cautious in not overstepping national authorities and altering their margin of appreciation.

Undocumented migrants are disaggregated from legal forms of migration as they are not entitled to stay or reside in the country in which they are living. However, increased migration – resulting from humanitarian crises and poverty, for example – is indeed taking more varying forms by producing legal as well as illegal forms of migration. The ECtHR has to date recognized “illegal” migrants such as asylum seekers[1] and victims of trafficking.[2] These illegal forms of migration have thus received only limited or loosely linked[3] attention in the ECtHR’s case law. People undertaking illegal or unaccepted forms of migration are referred to by numerous terms, such as undocumented, irregular, illegal, or non-regulated migrants.[4] The group referred to as irregular migrants is often related to criminal activities in the ECtHR’s case law, and we may take note of cases that deal with the trafficking in persons,[5] for example, where a migrant’s residence status has been irregular. What still remains quite unacknowledged in the ECtHR case law is the comprehensive vulnerable status of such a migrant, who is basically excluded from the law and society, not only as a consequence of criminal activities, but also for reasons such as the possession of falsified IDs, expired visas or residence permits, and attempts at family reunification.

What makes an irregular migrant’s situation problematic in the view of international human rights norms and standards is the fact that they are not entitled to protection provided by the State, since legally they often do not belong to any administrative category. Migration can be controlled only at arrival, but social and economic problems often occur after a migrant settles in the country. As for the State, it has to take into consideration both the international human rights standards that it has adopted and implemented through international human rights treaties and its own national legislation, which in principle should ensure a minimum level of protection based on the core of every single human right. Nonetheless, being unable or reluctant to identify these kinds of migrants makes this sometimes an overwhelming task.

In addition, the capacity of European countries to take migrants varies, thus cooling the relationships between the countries and European community‑related thinking.[6] The present political atmosphere and the economic crisis are also making their contribution to the decision‑making and case law of the ECtHR, making it extremely challenging to create guidelines for interpreting international human rights standards for irregular migrants. This is visible, for example, in European States where the political atmosphere heats up whenever there is a discussion on the entry and right to stay of irregular migrants.

Today, States may withdraw from securing the social and economic rights of migrants, as they have to simultaneously manage issues of their own, such as unemployment, economic restraints, etc. The situation is especially difficult for irregular migrants that are excluded from the law and society and are unwanted by their destination country. States are struggling to guarantee rights for both their own nationals and the vulnerable, often unwanted migrants, and this is creating political tensions. From the migrant’s point of view, the situation remains hopeless whatever the reasons for migration may be. However, the unauthorized migrant might also regard their vulnerable status as still preferable compared to his/her previous life. Nevertheless, States are concentrating simultaneously on restricting migration as a whole.[7]

Acknowledging the prevailing atmosphere and policies, the ECtHR has had to make clear political choices: the ECtHR needs member States to fulfil their international human rights obligations, and accordingly it has been careful in the interpretation of such an area that traditionally belongs to a member State’s sovereignty.[8] Although the ECtHR has not acknowledged the situation, it must be well aware of the fact that there will always be irregular migration besides the desired forms of migration, and thus there is a continuous human rights issue.

In its case law, the ECtHR measures how the rights declared in the ECHR apply to the case that it is assessing. The ECHR is a living instrument, which means that the ECtHR’s interpretations are responsive to updates and adapt to present day conditions. Owing to this, there should be a notable continuum in the ECtHR’s case law when it interprets the ECHR. Leijten argues that the problem of the ECtHR is that it tends not to explicitly define the scope of a right in the ECHR or what obligations a right establishes for the States.[9] Regardless of the criticism the ECtHR has faced, it still has a solid role as a reconciler. Nevertheless, the significance of the ECtHR is proved by the binding force of its judgments (ECHR article 46) and the development in asylum law based on the case of M.S.S. v. Belgium & Greece (2011), for example.[10]

Irregular migrants cannot be left outside the scope of the interpretation of the ECtHR and international human rights organs. In the future, the ECtHR will be obliged to draw a clearer line when it comes to irregular migrants and their treatment.[11] When interpreted through the ECtHR, there is an essential need to develop the case law concerning irregular migrants. Due to the ongoing European migration and refugee crisis, one can predict that there will be more cases brought to the ECtHR yet be aware of the fact that the rise in migration flows does not necessarily mean an increase in complaints made to the ECtHR.[12] Whatever the future development in the number of cases, the fact is that the ECtHR needs more cases of irregular migration to assess to be able to manage comments and guidelines that could better advise the member States on how to operate with these irregular migrants in view of the international human rights norms and standards.

REFERENCES

Leijten, Ingrid. “Defining the scope of economic and social guarantees in the case law of the ECtHR”, In Brems, Eva & Gerards, Janneke (eds.) Shaping rights in the ECHR, pp. 109−136. Cambridge University Press, New York 2013.

McNevin, Anne. Contesting citizenship: Irregular migrants and new frontiers of the political. Columbia University Press, New York 2011.

 

[1] For example, M.S.S. v. Belgium & Greece (2011), Hirsi Jamaa and Others v. Italy (2012).

[2] For example, Rantsev v. Cyprus & Russia (2010), Siliadin v. France (2005), C.N. v. the UK (2012).

[3] However, the ECtHR has taken careful steps by suggesting that States should regularize the residence status of unlawful aliens. See, for example, Kurić and Others v. Slovenia (2012), p. 411–415.

[4] These migrants are in a vulnerable position due to unauthorized entry or stays that are criminalized in most member States, who therefore often recognize these migrants as prohibited migrants. See, for example, A.H. & J.K. v. Cyprus (2015), p. 79., and K.F. v. Cyprus (2015), p. 48.

[5] For example, Rantsev v. Cyprus & Russia (2010) and C.N. v. the UK (2012).

[6] This community‑related thinking in controlling migration has even stretched to talking about “Fortress Europe”. See McNevin 2011, p. 102.

[7] For example, the changes made to Finnish Immigration Law / Ulkomaalaislaki 301/2004, see. HE 170/2014 vp, which made it restrictive to obtain a residence permit in certain situations (see, for example, pp. 26–27 and paragraph 51 §).

[8] The ECtHR has constantly stated that member States have, under a firmly established principle of international law, the right to control the entry and stay of aliens and non-nationals. See, for example, Riad & Idiab v. Belgium (2008), p. 94.

[9] Leijten 2013 pp. 114−115, 117.

[10] For instance, M.S.S. v. Belgium & Greece (2011) gave an incentive to the Dublin III regulation (EU) No. 604/2013.

[11] For example, the European Committee of Social Rights has carried out decisions concerning the difficult status of undocumented migrants. See DCI v. the Netherlands (2009) and FIDH v. France (2004).

[12] The crisis has been acknowledged in cases the ECtHR has dealt with this year, such as A.H. & J.K. v. Cyprus (2015), p. 120, and L.M. and Others v. Russia (2015), p. 123.

Religious objections in the workplace

A new right among consensus, evolutive interpretation, and the margin of appreciation

Elena Ervas

PhD Student in “Law, Market and Person” University Ca’ Foscari of Venice

In a global context characterized by increasing religious diversity, issues concerning the interaction between law and religion are ever more present in international constitutional discussion. Requests to be awarded special accommodations or to be excused from having to obey secular laws in light of religion are becoming more frequent. This is observed especially in work environments where the desire to observe and express religious beliefs sometimes conflicts with employees’ job obligations.

In the recent case Eweida and Others v. the UK,[1] the European Court of Human Rights faced four situations in which the employee asked to be accommodated for religious needs that were in conflict with the guidelines expressed by the employer. These instances occurred when a particular responsibility of the position contradicted the employee’s religious beliefs or practice.

The case is relevant for two reasons. First, Eweida and Others v. the UK is an important turning point in Article 9 jurisprudence. In fact, for the first time, the Court recognized that religious objections in the workplace can be protected as a manifestation of religion under Article 9 of the Convention. Second, it is interesting to note the particular reasoning that the Court applied, especially concerning the relationship between consensus, evolutive interpretation and the margin of appreciation.

The first applicant, Ms Eweida, formerly employed by British Airways, was dismissed because of her refusal to conceal her cross in breach of the company’s uniform code. The employer justified this measure with the wish to protect a certain corporate image; also in the case Chaplin v. the UK, the applicant, a nurse, was required to remove her cross necklace to reduce the risk of injury when handling patients. The third and the fourth cases (Ladele and McFarlane v. the UK) concerned a refusal to register the union of same-sex couples and to provide relationship counselling services to homosexual couples due to the applicants’ Christian faith.

The Strasbourg Court held that the applicant’s desire to wear a religious symbol at work, even if not mandated by the religion in question, was a manifestation of her religious belief in the form of worship, practice, and observance, and as such attracted the protection of Article 9. This is a departure from its previous case law, which suggested that freedom of religion was granted by the ultimate option to leave a job when it was inconsistent with an individual’s religious beliefs.[2] In addition, Ladele’s and McFarlane’s conscientious objections relating to same-sex relationships fall within the ambit of Article 9 as a manifestation of their deep religious convictions and beliefs.[3]

It is interesting to look at one aspect of the Court’s reasoning. The Court interprets the Convention through a dynamic and evolutive approach allowing it to consistently render its rights practical and effective. The Court usually refers to the presence of a consensus amongst the Contracting States to justify its reading of the Convention as a living instrument. In fact, the Court usually identifies a new right only after having observed the presence of a consensus among the States, meaning that the right was already recognized at the national level. Nevertheless, in this case, the Court does not mention any consensus to support the new interpretation of Article 9 of the Convention. In particular, the Court notes that the issue relating to wearing religious symbols at work continues to be unregulated in the majority of the States. Moreover, a comparative analysis is totally absent with regards to the issue of religious objection in the workplace. Consequently, it seems that the Court recognized a new right without a consensus. It would be interesting to know which other factors the Court took into consideration to reach its conclusion.

Moreover, in Eweida and Others v. the UK, the doctrine of the margin of appreciation played a crucial role. This could be described as the room for discretion accorded to the Contracting States on how to interpret and enforce the Convention. When determining the scope of this margin, the Court usually refers to the existence or non-existence of a consensus among the Contracting States. If the Court finds that the States’ regulations converge in a particular field, the margin granted to the States will be narrower. Furthermore, the Court refers to the concept of the margin of appreciation not only for the recognition of a right, but also to balance it with all interests involved once the right has already been recognized.

In the Eweida case, the Court held that the employer’s wish to protect the corporate image was legitimate, but the State had accorded it too much weight compared to the applicant’s right to manifest her religious beliefs, which is a fundamental right in a democratic society. On the contrary, in the Ms. Chaplin case, the Court held that the State had struck a fair balance between the applicant’s right to manifest her religious belief and the desire to protect the health and safety of others, an aim that “was inherently of a greater magnitude than that which applied in respect of Ms Eweida”.[4]

The Ladele case could be considered even more interesting; the Court seems to have used an emerging consensus to include the need for the legal protection of same sex couples in the balancing exercise. In fact, the Court accorded a wide margin to the State to balance the right of religious objection with the right of gay couples not to be discriminated against, in particular referring to the need of legal protection for homosexual relationships. Although the Court has not yet identified an obligation to provide for the legal recognition of same-sex couples, it has repeatedly affirmed that same-sex couples have an interest in obtaining this protection. The Court has noted that the practice in this regard is still evolving across Europe, but there is an emerging European and global consensus towards legal recognition of same-sex couples. Even if this consensus cannot yet be established, it is a goal the Court aims to reach. Consequently, when a State decides to grant this protection, that need falls within the protection of the Convention and the State has to assure it. The emerging consensus entitles the need to enter into the balance with other competing Convention rights. Therefore, the Court granted a wide margin of appreciation to the respondent State to strike the fair balance between the right of religious objection and the rights of same-sex couples. For this reason, one could read the margin of appreciation in the Ladele case as a way of balancing the conflicting rights granted by the European Convention of Human Rights.

[1] ECHR, Eweida and Others v. the UK, Application nos. 48420/10, 59842/10, 51671/10, and 36516/10, 2013.

[2] Eweida and Others v. the UK, supra n.1, at para. 89, 97. In particular the Court considers that “Ms Eweida’s insistence on wearing a cross visibly at work was motivated by her desire to bear witness to her Christian faith” and […] that “Ms Eweida’s behaviour was a manifestation of her religious belief, in the form of worship, practice and observance, and as such attracted the protection of Article 9”. The Court reached the same conclusion in Ms Chaplin’s case; the “applicant’s determination to wear the cross and chain at work was a manifestation of her religious belief and […] the refusal by the health authority to allow her to remain in the nursing post while wearing the cross was an interference with her freedom to manifest her religion”.

[3]Eweida and Others v. the UK, supra n.1, at para. 108: “The Court accepts that Mr. McFarlane’s objection was directly motivated by his orthodox Christian beliefs about marriage and sexual relationships, and holds that his refusal to undertake to counsel homosexual couples constituted a manifestation of his religion and belief. The State’s positive obligation under Article 9 required it to secure his rights under Article 9.”

[4] Eweida and Others v. the UK, supra n.1, at para. 99.

The effectiveness of the pilot judgment procedure: A comparative case-study on inhuman and degrading treatment against detainees in Russia and Italy

Marco Bocchi

PhD Candidate at University of Rome Tor Vergata, School of Law

The implementation of the judgments Ananyev v. Russia (2012)[1] and Torreggiani v. Italy (2013)[2] deserves careful analysis as it is a practical example of the impact that pilot judgments may have in national legal orders. In fact, the success of this procedure depends on the willingness of States to cooperate. Since pilot judgments address a broader situation and not only to an individual applicant, their implementation requires more than the simple payment of compensation in a single case: instead, domestic legal changes are necessary. Thus, the execution of the judgments represents the success, or failure, of this mechanism as an instrument to highlight human rights violations stemming from structural and systemic problems.

The Ananyev and Torreggiani cases are significant because they are related to the violation of one of the most important rights protected by the European Convention on Human Rights: the prohibition of torture and inhuman and degrading treatment (Article 3) in the context of national prison systems. As it will be highlighted in this article, even if both these pilot judgments ruled on the inhuman and degrading treatment against the detainees, their implementation has been different in Russia and in Italy and, thus, the effectiveness of the pilot judgment procedure itself has varied.

In the Ananyev case, the Court found a structural dysfunction in the Russian prison system as the root of a recurring structural problem of inadequate conditions of detention and, therefore, it declared a violation of Articles 3 and 13. To solve this structural dysfunction, the Court gave the Russian Federation a binding timeframe of six months to implement preventive and compensatory measures in respect to the inhuman treatment of detainees and the lack of adequate jurisdictional remedies.

Before evaluating the response of the Russian Federation’s compliance with the Ananyev pilot judgment, the situation that led the Court to find a structural problem with the prison administration in Russia should be taken into account.

According to Article 17, paragraph 3, of the Federal Law of 15th July 1995, there is an opportunity for those who are in custody to file a complaint with the chief of the reprimand centre. However, the Court highlighted that this remedy cannot be considered an effective tool in the context of Article 13 because a complaint against inappropriate conditions would be examined by a person who is responsible for their observance. Furthermore, the federal and regional Ombudsmen, who are already established by the Russian law, have neither the power to make decisions capable of improving the detention conditions, nor the power to provide compensation for the violation of Article 3. Thus, a complaint to the Ombudsmen cannot be considered an effective remedy. The only appeal that, in theory, could be compatible with Article 13 is the one provided by Chapter 25 of the Code of Civil Procedure, as the Court itself recognized. However, an effective remedy must be available not only in theory, but also in practice. As far as this is concerned, the Russian authorities have never shown any practical examples of a successful application of a complaint under Chapter 25. Finally, according to Articles 1070 and 1100 of the Civil Code, the compulsory list of cases of strict liability for which it is envisaged compensation for damages should be paid by the State do not include reparation for inhuman and degrading detention conditions.

Against this legal background, in the Ananyev pilot judgment, the Court highlighted the criteria that the Russian prison system must satisfy in order to solve the structural problem of inadequate detention conditions. Furthermore, the Court has also reiterated that the Committee of Ministers exercises supervision over the execution of its judgments. In accordance with the Committee’s procedures, Russia has proposed an action plan[3] outlining the measures that the government will take to improve the dramatic conditions of the prisons. However, the measures outlined in the action plan and those that have concretely been converted in law mainly focus on access to remedies, rather than alleviating the material condition of prisoners as the Ananyev criteria demand. Therefore, due to the lack of implementation of general measures indicated in the pilot judgment, after the expiration of the timeframe of six months, the Court handed down other judgments finding Russia to be in breach of Articles 3 and 13. Beyond all the cases that were frozen during the timeframe assigned by the Ananyev judgment, the Court recently also declared the same violations in the Nogin v. Russia (2015)[4] and Khloyev v. Russia (2015)[5] cases.

Finally, it should be noted that in its latest decision,[6] the Committee of Ministers urged the Russian government to have an effective remedies system in place by the end of 2014, asking it to move beyond paper promises. However, almost one year later, there is no news of any legislative innovations regarding improvements in the detention conditions of Russian prisons.

In the Torreggiani v. Italy judgment, the Court observed that the nature of overcrowding in Italy’s prison system emerged clearly from the fact that several hundred applications were pending before the Court raised the issue of the compatibility of the conditions of detention with Article 3. Therefore, the Court decided to apply the pilot judgment procedure and declared that Italy had violated Article 3, indicating a timeframe of one year to put in place an effective remedy or a combination of remedies adequate to reduce cases of prison overcrowding.

In the Italian system, several laws regulate the condition of prisoners, but only in a few concrete cases are their provisions fully respected. Article 6 of the law 26th July 1975 no. 354 provides that each prisoner has the right to be interned in clean and heated cells of sufficient width, equipped with private toilets. However, the Court in the Torreggiani case recognized that these provisions were not met in the applicant’s situation and, indeed, found the general situation of Italian prisons very alarming. Furthermore, the law 26th November 2010 no. 199 has been approved in order to comply with the structural problem of prison overcrowding, and it has inserted special measures aimed at reducing the prison population by extending home detention for people convicted for a period no longer than eighteen months. Nevertheless, the Court clearly highlighted that, while these legislative improvements were welcome, they did not solve the structural problem of prison overcrowding, and therefore it declared Italy in violation of Article 3.

Following the application of the pilot judgment procedure, Italy has put in place a number of additional legislative measures. Among them, the most significant intervention has surely been the approval of the law 21st February 2014 no. 10 on urgent measures concerning the protection of the fundamental rights of detainees and the reduction of the prison population. This was the last act of a complex legislative process aimed at respecting and complying with the Torreggiani judgment. On the one hand, the measures introduced by this law are significantly innovative in the aim of reducing the use of imprisonment (see e.g. the use of the electronic tagging, the extension of early release, and home detention and deportation of foreign prisoners). On the other hand, the new provisions are also fundamental for improving the protection of the fundamental rights and judicial guarantees of the detainees. In fact, the new measures have introduced an Ombudsman for the rights of detainees, which has the power to formulate a report to the Parliament as well as to make specific recommendations and obtain information and documents from the prison administration.

All of these measures have been positively considered by the Court, and in two inadmissibility decisions in 2014,[7] the Court declared that there is no evidence to show that those remedies did not offer the prospects of appropriate relief for the complaints submitted under Article 3 and, therefore, the Court rejected these appeals on the basis of the non-exhaustion of domestic remedies. However, it must be said that while the measures in question make important changes necessary for a rapid response from the Court, they do not produce the needed basic reforms of the system.

”the effectiveness of the pilot judgment procedure depends upon the willingness of States to cooperate and to follow the indications of general measures provided by the Court”

In conclusion, as it stems from the different implementation of the judgments in the cases of Ananyev and Torreggiani, the effectiveness of the pilot judgment procedure depends upon the willingness of States to cooperate and to follow the indications of general measures provided by the Court. If they do so, as in the case of Italy, the Court may reject all new applications on the same violation as well as those that have been frozen after the pilot judgment was issued, thus avoiding new convictions for the State. In this case, the pilot judgment procedure becomes a fundamental instrument to guarantee both the correct and accelerated functioning of the Court and the protection of the individual rights violated by the structural and systemic problem. If, instead, the State does not cooperate, as in the case of Russia, the Court must reconsider all the similar applications previously frozen[8] and it has to condemn the State for the same violation in all new cases. In this case, the pilot judgment procedure certainly fails in its objective to accelerate the resolution of appeals by the Court and to obtain in the shortest time a remedial action by the State. However, individual rights are not affected by the application of this procedure. The possibility for the Court to sanction the State by condemning it to pay compensation in every single case through an examination of all the appeals is aimed to guarantee the same level of protection for all the individuals that have suffered a violation of their fundamental rights.

[1] Ananyev and Others v. Russia nos. 42525/07 and 60800/08 (10th January 2012);

[2] Torreggiani and Others v. Italy nos. 43517/09, 46882/09, 55400/09 et al. (8th January 2013);

[3]https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2173309&SecMode=1&DocId=1945466&Usage=24;

[4] Nogin v. Russia no. 58530/08 (15th January 2015);

[5] Khloyev v. Russia no. 46404/13 (5th February 2015);

[6]https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2173309&SecMode=1&DocId=1945466&Usage=2;

[7] Stella and Others v. Italy and Rexhepi and Others v. Italy (16th September 2014);

[8] See e.g. Reshetnyak v. Russia (8th January 2013), Yefimenko v. Russia (12th February 2013), and Zuyev v. Russia (19th February 2013).

Structural Disobedience

By Helen Küchler

(PhD student and research assistant at the Europa-Institut, Jean-Monnet-Chair for European Law and European Integration of Prof. Dr. Giegerich, LLM)

The Challenge

The European Court of Human Rights (ECtHR) is well known for being the world’s most advanced human rights protection system. However, in recent years, it became the “victim of its own success”.[1] Its famous efficiency is now endangered by the huge backlog of individual complaints; in 2014 there were still 69,900 applications pending.[2] A reform process[3] has been ongoing for five years in order to assure the timely functioning of the system[4] in the future, but a real breakthrough has not yet been achieved.

One reason for the huge number of cases is the structural disobedience of some Member States to the Convention. This “common dysfunction at the national level”[5] causes a large number of identical or at least similar applications, which will be referred to in this paper as “repetitive cases”.[6] This large number of repetitive cases is due to the fact that the individual claimants can only address the concrete violation they are victim of; the structural problem behind the individual violation cannot be tackled by this type of procedure.[7] It would be far more effective to address the source of the human rights violations directly, namely the structural problem itself. This often lies in an administrative practice or law contrary to the Convention. If the ECtHR could abstractly investigate this matter, it could eliminate the cause and therefore solve not only one, but all of the repetitive cases at once. In such an investigation, the Court would need a broader mandate than in the individual application procedure, enabling it to take into account the whole human rights situation in the respective State. Only then could a real reform process be proposed to redress all the individual violations resulting of the structural defect.

The solution provided for in the Convention: The inter-state application

The inter-state application under Art. 33 of the ECHR is the instrument foreseen by the founders to address systematic and massive human rights violations with the aim of reintegrating the responsible State into the Convention system. This complaint has an abstract character,[8] which means that it can be directed straight to the source of multiple human rights violations, law, or administrative practice contrary to the Convention. The concrete individual violations will then only serve as proof of this “pattern or system” of human rights violations in the respective State.[9]

The inter-state claim was initially meant to be the primary enforcement mechanism[10] of the Convention that corresponded to the role accorded to the States by the ECHR’s preamble, which describes the Convention States as “guardians of the European public order”[11] who are guaranteeing a “collective enforcement”[12] of human rights.

This well-meant idea has never worked out in practice though. To this day, there have only been ten situations that have given rise to a total of 27 inter-State claims[13] and the vast majority of these cases have not been initiated in the common interest to uphold the Convention as originally intended by Art. 33 of the ECHR. On the contrary, most of the States were rather pursuing their own political interests with their claims by exploiting the inter-state procedure, especially in bilateral conflicts, for their own ends (e.g. the claims of Cyprus v. Turkey,[14] Georgia v. Russia,[15] and Ukraine v. Russia[16]). The inter-state procedure has therefore been prevented from fulfilling its original task, which is to tackle problems of serious and systematic human rights violations in order “to realise the aims and ideals of the Council of Europe as expressed in its Statute, and to establish a common public order of the free democracies in Europe”.[17] Due to this failure, individuals needed to step in to guarantee the effective enforcement of their Conventions rights, filling the gap left by the reluctant States.[18] This might be one of the reasons why today there is such an overload of individual complaints instead of some focused inter‑State applications directly targeting the systematic failure of some States to apply the Convention.

Possible modifications of Art. 33 of the ECHR

In order to tackle structural human rights problems in certain member states, the full potential of Art. 33 of the ECHR should be realised, as this is the instrument most suited to deal with systematic disobedience. Only Art. 33 of the ECHR allows an abstract evaluation of the whole human rights situation in the respective State, which is the fundamental prerequisite for a reform proposal that could help the concerned State to dissolve its structural problem. Therefore, it is crucial that the potential of Art. 33 of the ECHR is used more often in cases of structural disobedience.

One possibility to achieve this goal would be to force States to take action in cases of systematic violations, for example, by means of a legal duty for States to use Art. 33 of the ECHR if there are enough indications of a dysfunction in a particular national system. One indication might be the number of repetitive cases pending against the respective State. Such a legal duty would push the States to give up their current reluctance based on political and economic motives. It might also motivate the States to act together. In cases of armed conflicts resulting in disastrous human rights situations, States could act together instead of leaving the complaint under Art. 33 of the ECHR to the States involved in the conflict. In the past, such actions shed a bad light on the inter-state procedure, creating the appearance of a conflict of interest.

If such a legal duty did not produce any effects, one could also think about replacing the States by more effective “human rights advocates”,[19] conferring the right of action under Art. 33 of the ECHR to someone else. One option could be to follow the successful example of the European Commission in playing a key role in the treaty violation proceedings in EU law (Art. 258–259 of the TFEU) and substitute the States under Art 33 of the ECHR with a neutral organ of the European Council.[20] Another possibility would be the conferral of this prerogative to NGOs (currently only third parties under Art. 36 of the ECHR) that have already proven themselves to be very active in “address(ing) consistent patterns of gross and reliably attested violations of all human right” under the complaint procedure to the UN Human Rights Council[21]. One could also provide the ECtHR itself with the right to act proprio motu in cases of structural violations.[22]

Alternatives

Currently, none of these modifications has been considered during the reform process, so they are far from being realized. The ECtHR hence developed some alternatives within the existing system in order to address current systematic failures to comply with the ECHR more effectively. First, it developed the pilot-judgment procedure[23] “as a technique of identifying the structural problems underlying repetitive cases against many countries and imposing an obligation on States to address those problems.”[24] Second, the ECtHR uses “individual measures”[25] to guide the Convention states in resolving their systematic problems.[26] Third, the Court wants to use its new advisory jurisdiction[27] “to adopt a larger number of rulings on questions of principle and to set clearer standards for human rights protection in Europe”.[28] This might also help in setting clear standards, which could serve as orientation for the States to restructure their national systems in line with the Convention.[29] Finally, in 2009, the ECtHR adopted a new priority policy, enabling it to deal more rapidly with “cases which disclose the existence of widespread problems”.[30]

Outlook

This creativity of the Court in dealing with structural deficiencies has been widely criticized. This critique is due to the lack of legal basis for many of the adopted measures and it is also based on the fear that the ECtHR might interfere with national sovereignty when it orders structural changes or reforms with the objective of erasing all causes for systematic violations.

For the Court, on the other hand, it is very important to show that it rises to the major challenge embodied in the systematic failure of States to apply the Convention. Systematic disobedience to the Convention is like a “credibility test”[31] for the whole system: it is only if the ECtHR shows that it can effectively deal with them that it will be able to keep its authority and legitimacy in smaller individual cases.[32] Then and only then can the purpose of the whole Convention – the realization of a “European public order”[33] – be achieved.

For the reasons outlined above, and because of repetitive cases are still blocking the Court, the most effective way to deal with serious and systematic human rights violations must be identified and promoted as soon as possible. Thus, this paper wants to trigger a discussion on how the Court could become more effective in the domain of structural human rights violations. Is the inter-state procedure (if modified) the best instrument to tackle this fundamental problem, or should we rather focus on an alternative? Our discussion needs to show that the ECtHR will overcome the challenge of structural disobediences and that the whole system will emerge from this test of credibility even stronger than before.

[1] Helfer. “Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime”, EJIL Vol. 19. no. 1 (2015), p. 125, available under: http://www.ejil.org/pdfs/19/1/181.pdf.

[2] ECtHR, Analysis of statistics 2014, http://www.echr.coe.int/Documents/Stats_analysis_2014_ENG.pdf, p. 4.

[3] Conferences in Interlaken-Izmir-Brighton-Brussels, Protocols No. 14, 15 and 16.

[4] Jahn. “Normative Guidance from Strasbourg through Advisory Opinions”, ZaöRV 2014, p. 822.

[5] ECtHR – Press Unit, Factsheet – Pilot Judgments, http://www.echr.coe.int/Documents/FS_Pilot_judgments_ENG.pdf, p.1.

[6] Ibid. This definition has to be distinguished from another interpretation of “repetitive cases” used by the ECtHR in, for example, the explanation of the Court’s priority policy, http://www.echr.coe.int/Documents/Priority_policy_ENG.pdf, p. 5, where the term only covers cases that have already been treated by the Court in a pilot judgment procedure.

[7] Prebensen. “Inter-state complaints under treaty provisions – The Experience under the European Convention on Human Rights”, in Alfredsson, et al. (eds.) International Monitoring Mechanisms – Essays in Honour of Jacob Th. Möller, 2009, p. 460.

[8] Un véritable „contrôle abstrait de légalité“ : Labayle, in Pettiti/ Decaux/ Imbert (eds.) La Convention européenne des droits de l’homme – Commentaire article par article, Paris 1995, Art. 24 CEDH, p. 576 ; Zwaak, Chapter 1, in Van Dijk, van Hoof, van Rijn, Zwaak (eds.) Theory and Practice of the European Convention on Human Rights, 2006, p. 48.

[9] ECtHR, No. 5310/71, Ireland v. United Kingdom, 18th January 1978, para. 159: “A practice incompatible with the Convention consists of an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system; a practice does not of itself constitute a violation separate from such breaches”.

[10] Pettiti. Le recours interétatiques dans le système de la convention européenne des droits de l’homme, in Bardonnet (ed.), Le règlement pacifique des différends internationaux en Europe : perspectives d’avenir, 1991, p. 333.

[11] ECtHR, No. 25781/94, Cyprus v Turkey, 12.05.2014, Dissenting Opinion of Judge Karakaş, p. 51, Nr.1 (pdf). This denotation is also used in the literature, e.g. by Frowein. “The European Convention on Human Rights as the Public Order of Europe”, in Academy of European Law (ed.) Collected Courses of the Academy of European Law, Vol. 1, Book 2 (1990), p. 281: “guarantors of the European public order”.

[12] Preamble of the ECHR, last recital.

[13] ECtHR, Nos. 176/56, 299/57, 788/60, 3321/67, 3322/67, 3323/67, 3344/67, 4448/70, 5310/71, 5451/72, 6780/74, 6950/75, 8007/77, 25781/94, 9940/82, 9942/82, 9944/82, 9941/82, 9943/82, 34382/97, 13255/07, 38263/08, 61186/09; 20958/14, 43800/14, 49537/14, and 42410/15.

[14] ECtHR, Nos. 6780/74, 6950/75, 8007/77, 25781/94, Cyprus v. Turkey,

[15] ECtHR, Nos. 13255/07, 38263/08, 61186/09, Georgia v. Russia.

[16] ECtHR, Nos. 20958/14, 43800/14, 49537/14, 42410/15, Ukraine v. Russia.

[17] ECtHR, No. 788/60, Austria v. Italy, 11th January 1961, p. 18 (pdf).

[18] The individual complaint procedure became the “royal way” of enforcement: Matscher. Kollektive Garantie der Grundrechte und die Staatenbeschwerde nach der EMRK, in Funk et al. (eds.) Der Rechtsstaat vor neuen Herausforderungen – Festschrift für Ludwig Adamovich zum 70. Geburtstag, 2002, p. 420.

[19] Ermacora. Über die Staatenbeschwerde in Fragen der Menschenrechte, in Mélanges Marcel Bridel- Recueil de travaux publiés par la Faculté de droit, Lausanne 1968, p. 184; Khol. Fragen der Systeme internationaler Verfahren zum Schutze der Menschenrechte und ihrer Konkurrenz, in Mitteldeutscher Kulturrat e. V. (ed.) Deutschland, Europa und die Menschenrechte: zum Internationalen Jahr der Menschenrechte, 1968, p. 166.

[20] Which organ (e.g. the High Commissioner for Human Rights, the Parliamentary Assembly) is most suitable is still vividly discussed: Ermacora. Über die Staatenbeschwerde in Fragen der Menschenrechte, in Mélanges Marcel Bridel- Recueil de travaux publiés par la Faculté de droit, 1968, p. 191; Wittinger, Der Europarat – die Entwicklung seines Rechts und der ”europäischen Verfassungswerte”, 2005, p. 460.

[21] Formerly the 1503 procedure, now Art. 85 ff. Resolution 5/1, Human Rights Council “Institution-building package” (2007).

[22] Kamminga. “Is the European Convention on Human Rights Sufficiently Equipped to cope with Gross and Systematic Violations?”, NQHR 1994, p. 164: drawing a parallel to the American Human Rights Commission and the UN Committee Against Torture (CAT).

[23] Art. 61 Rules of the Court.

[24] ECtHR – Press Unit, Factsheet – Pilot Judgments, http://www.echr.coe.int/Documents/FS_Pilot_judgments_ENG.pdf, p.1.

[25] More on this topic: Jahn. “Ruling (In)directly through Individual Measures? Effect and Legitimacy of the ECtHR’s New Remedial Power”, ZaöRV 2014, p. 36.

[26] E.g. ECtHR, No. 40167/06, Sargsyan v. Azerbaidschan, 16th June 2015, para. 238; ECtHR, No. 13216/05, Chiragov and Others v. Armenia, 16 June 2015, para. 199.

[27] Protocol No. 16 (not yet in force).

[28] ECtHR, Reflection Paper on the Proposal to Extend the Court’s Advisory Jurisdiction, available under  https://www.coe.int/t/dgi/brighton-conference/Documents/Court-Advisory-opinions_en.pdf, para. 5.

[29] Jahn. “Normative Guidance from Strasbourg through Advisory Opinions”, ZaöRV 2014, p. 836 f.

[30] ECtHR, The Court Priority’s Policy, available under: http://www.echr.coe.int/Documents/Priority_policy_ENG.pdf.

[31] Macdonald.Protecting human rights in emergency situations: Making Article 15 work”, Protection des droits de l’homme : la perspective européenne – Mélanges à la mémoire de Rolv. Ryssdal, 2000, p. 817; Ergec, Les droits de l’homme à l’épreuve des circonstances exceptionelles, 1987, p. 171 : „précieux gage de sa crédibilité“.

[32] Janis, Kay, & Bradley. European Human rights Law- Text and Materials, 2008, p. 66.

[33] ECtHR, No. 15318/89, Loizidou v Turkey (preliminary objections), 23 March 1995, para.75.

The Illegitimacy of European Consensus

Elina Pekkarinen, Doctoral student, University of Tampere

Introduction

The question of whether consensus as an interpretative principle of the ECtHR can be regarded as legitimate depends significantly on how we perceive the relationship between consensus and the idea of objective moral elements in legal action and jurisprudence. Consequently, the question of legitimacy does not solely relate to the ECtHR and the member States of the Council of Europe. Instead, the question of whether consensus is a legitimate interpretative tool relates to a wider issue of morality and law. To examine the legitimacy of consensus principle we have to first editorialize what kind of relationship morality and (European) human rights have. I argue in this paper that morality is objective, human rights are moral rights, and because human rights are objective moral rights, consensus as a sole interpretative principle is insufficient to legitimize the interpretation of the ECtHR. However, before approaching my main thesis, which is linked to the objectivity of universal moral human rights, it is justifiable first to examine briefly how consensus as an interpretative principle of the ECtHR has been perceived. I am not aiming to exhaustively define consensus as an interpretative principle of the ECtHR, because the definition itself is an ambiguous one and therefore the definition alone would exceed my remit.

The preliminary definition of consensus

As I mentioned, the definition of consensus is ambiguous. However, it can be generally said that the consensus principle refers primarily to commonly accepted values and procedures that the ECtHR has acknowledged.[1] This preliminary definition raises more questions than it answers. The main questions relating to consensus are the following:

  1. Can all rights be subjected to consensus evaluation?
  2. From whose viewpoint does consensus stem from?
  3. How has consensus changed in the history of the ECtHR? It is crucial to acknowledge that consensus cannot be successfully conceptualized without the margin of appreciation, because – among other interpretative principles – consensus is a concrete tool that brings the margin of appreciation forward. The significance of the margin of appreciation can be understood as a systemic objective[2] that attaches national courts to the Convention regime and obligates national courts to commit to the ways of evaluation the Convention regime requires.[3] It has been argued, however, that the margin of appreciation is a threat to the rule of law and also to the protection of human rights.[4]
  4. The questions presented above cannot be answered in this context. Their main point is to illustrate the complexity of evaluating consensus. It is evident that the consensus principle – as the ECtHR has constructed it – is rather fluid, and as such, it is not formulaic. Consensus nevertheless should include not only the consensus identification itself, but also a comprehensive evaluation of the factors that are linked to the recognition of consensus. This is substantive because evaluating consensus is not something passive, but rather an active choice that is closely connected to the ECtHR’s interpretive ethic.

Human rights and objective morality

The idea of a European consensus seems at least intuitively a relativist way of perceiving human rights. I defend the idea that human rights are universal even though universal human rights necessarily contain a relativist element. This relativist element is attached fixedly to the question of multicultural universality. According to Jack Donnelly, one of the main purposes of universal human rights is to protect the free choices of free individuals and justify as well as apply in practice these rights in the way in which they are rooted to the histories and experiences of individuals.[5] Human rights should also include elements of these cultures. This relativist element, however, does not make human rights relativistic in a doctrinal sense.[6] The discussion between universalism and relativism is intertwined with the idea of morality.

Alexy claims that human rights are by nature moral, universal, fundamental abstract rights that take priority over all other norms.  From my point of view, it seems that in order for human rights to be at the same time moral, universal, fundamental, abstract, and prior rights, the morality that is embedded in these human rights has to be objective by nature. In my view, the moral objectivity of human rights stands for the endeavour to achieve the utmost truth and correctness, and therefore it does not necessarily mean that there is an unequivocal conceptual and substantive understanding of these rights.

Alexy highlights that the precondition for rights to exist is the validity of the aforementioned rights. Alexy also argues that moral rights are only valid if they are justifiable. Hence, the existence of human rights as moral rights is dependent on their justifiability.[8] Thus, according to Alexy, rights only exist when they are valid, and in the case of human rights, validity requires justifiability. If rights are not justifiable, they are not valid. If rights are not valid, they do not exist. Therefore, it can be concluded that only moral rights can exist, because rights of a non-moral nature do not meet the criteria of justifiability and validity.

The justifiability of norms is nevertheless often contested, and as I see it, the problematic relationship of consensus and objective moral norms is closely linked in particular through the idea of the justification of rights. The relationship between these two concepts is problematic because the assessment of consensus is to a large extent also a balancing act.

”A mere consensus between the signatories of the European Convention on Human Rights is not principally adequate proof of the universality of the human rights standard that has been set”

International treaties concerning human rights contain moral values that drive the execution of human rights in a certain direction. This direction is – as I see it – a more correct human rights standard. A mere consensus between the signatories of the European Convention on Human Rights is not principally adequate proof of the universality of the human rights standard that has been set. In this respect, the idea that national authorities are better placed to decide questions that relate to morals is difficult to legitimize, especially when having to take into account the moral duty of the ECtHR as the protector of human rights. Letsas notes that piecemeal evolution of the ECtHR standards – that is, based on consensus – “according to how many States have abandoned moralistic preferences in the different areas of national law deeply offends the values of legality and equality”.[9]

Consensus, the right to interpret, and the legitimacy of the interpretation

As I noted above, universality is not a synonym for consensus. Therefore, questions on the authority of the ECtHR cannot be the explaining factor of consensus and the legitimacy of the court’s case law. The court’s authority and the legitimacy of its case law should arise from the act of joining the Convention rather than from the sovereignty of the member States.[10]

”the reasons that lie behind the consensus argumentation and its sources should be explicitly shown”

If consensus is to be used as a justified interpretative principle of the court, it is not enough to assess whose consensus is in question. From the point of view of fundamental moral human rights, the reasons that lie behind the consensus argumentation and its sources should be explicitly shown. This is especially important because the assessment of consensus is not something implicit or given, but an active choice of the court. The restriction of a right cannot be justified just because there is no a uniform European conception about its extent. It is crucial to note however, that I am not implying here that consensus would be the only aspect being assessed in the reasoning of the court. Nevertheless, the main problem with using consensus as a way to indicate the extent of the margin of appreciation is the moral reading of the Convention rights that the assessment of consensus often lacks. Even though the choice to use consensus as an interpretative tool of the court is always an active one, the fluidity of the consensus principle makes it difficult to legitimize. Brauch criticizes consensus because it offers little analytical precision.[11] He also claims that consensus is not an effective predictor of how the court will resolve any particular case.[12]

I mentioned above that it has been reasoned that the margin of appreciation attaches national courts to the Convention regime and obligates national courts to commit to the ways of evaluation required by the Convention regime. However, what ways of evaluation should national courts tie themselves to? Let us turn to Alexy’s conception of human rights: they are moral, universal, fundamental abstract rights that take priority over all other norms. Which interpretational principles would in the best and most correct way secure the fulfilment of human rights? It would seem intuitively justifiable to argue that the abstractness of both human rights and the moral foundation of such rights demands concrete interpretational principles that originate directly from the national legal States themselves. This argument would support the idea that consensus, as an interpretative principle, should act as a legitimizing tool for the ECtHR’s case law. However, concrete interpretational principles that are strongly based on the national legal States and their human rights standards cannot form a solid basis for human rights, and their moral foundation is inherently abstract. Human rights are abstract, so the interpretation of these rights should be based on abstract moral arguments, because factual interpretation should always be justified with a non-factual explanation.[13] In this respect, consensus cannot act as a legitimizing principle for the ECtHR.

 

[1] Dzehtsiarou, Kanstantsin. “European Consensus: a way of reasoning?” University College Dublin Law Research Paper No. 11/2009, 28th May 2009.

[2] Spielmann, Dean. “Whither the Margin of Appreciation?” UCL Current Legal Problems lecture, 20th March 2014, p. 1.

[3] Ibid., p. 12.

[4] See Brauch, Jeffrey A. “The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law”, Columbia Journal of European Law, Vol. 11, 2005, pp. 113–150.

[5] See Donnelly. Jack. Human Rights in Theory and Practice. Cornell University Press. Ithaca 2013, p. 104.

[6] See, for example, Donnelly, Jack. Human Rights in Theory and Practice. Cornell University Press. Ithaca 2013, p. 115.

[7] See Alexy, Robert. “Law, Morality and the Existence of Human Rights”, Ratio Juris, 25 (1), March 2012, pp. 2–14 (p. 10).

[8] Ibid.

[9] Ibid., p. 124.

[10] About the discussion between different types of legitimacy, see Letsas 2009, pp. 15–17.

[11] Brauch, Jeffrey A. “The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law”, Columbia Journal of European Law, Vol. 11, 2005, pp. 113–150 (p. 138).

[12] Ibid.

[13] Letsas, George. “Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer”, The European Journal of International Law, 2010, pp. 509–541 (pp. 534–535).

[MJ1]Please confirm that the article came from the inserted journal (highlighted). If it did not, please include the correct journal.

How far can the “living instrument” evolve?

How far can the “living instrument” evolve?

Dmitrij Lisovskij, Doctoral Student, Universitat Pompeu Fabra, Spain

The Convention system has experienced enormous success during the past decades; the prestige and the powers of the ECtHR have expanded exponentially. These achievements are mostly due to the recourse to the “living instrument” doctrine, which not only allowed the court to influence national legislations and improve human rights protection levels in many contracting States while delivering individual justice, but has also permitted the court to claim its constitutional functions for the European public order by establishing pilot‑judgment procedures. Nevertheless, the “living instrument” has encountered important limits, some of which are summarized in the present paper. The sound development of the Convention system in the future is mainly dependent on the clear, coherent, and collaborative guidance assumed by the court on the capacity to enable appropriate mechanisms for the reception of the ECHR into domestic law and practice, and on the States’ efforts to collectively enact efficient enforcement mechanisms, especially concerning the adoption of the measures of a general nature meant to prevent future violations.

”The key point here is the closer cooperation and dialogue between the ECtHR and the domestic courts.”

In order to develop and put into practice the “living instrument” doctrine, the ECtHR has created a series of methods and principles constantly employed in its case law. The difficulty of defining the functioning of these legal instruments with precision represents one of the limits to the future harmonic development of the protection mechanism, as their employment fails to deliver a high degree of foreseeability and predictability in the court’s orientation and judgments.[1] The ECtHR as the sole relevant guardian and interpreter of the Convention has reached its physical capacity; the overload of the pending applications may deprive of meaning the protection mechanism set up by the Convention. Thus, the subsidiary function, set forth in Article 13 of the Convention, plays a crucial role in maintaining the system’s viability. The key point here is the closer cooperation and dialogue between the ECtHR and the domestic courts. The domestic courts should serve as a filter for the Convention mechanism, but the guidance assumed by the ECtHR must be clear and highly cooperative. The introduction of advisory opinion procedures in Protocol No. 16, even if of a non‑binding character, may also ease the cooperation between the courts. The development and employment of a set of coherent principles in the case law is essential to safeguard the court’s authority and to maintain the perception of the legitimacy of its judgments not only by local judges, but also by institutions and individuals. Balanced interaction between national courts, the representative institutions of the States, and the ECtHR is crucial, especially taking into account the cases involving highly sensitive moral and ethical issues dividing contemporary societies. The ever more extensive recourse to the “living instrument” doctrine brings the court to adjudicate on the most advanced and controversial moral and ethical issues dividing contemporary societies. The further the court becomes involved in such issues, the more it will risk delivering ideologically driven judgments. A preeminent role should be recognized for the legitimate representative institutions of the States in some specific cases, therefore the drawing of more transparent borders of recourse to the margin of appreciation doctrine is essential. Not only is the overload of complaints threatening the functioning of the court, but the ever extensive use of the “living instrument” doctrine without appropriate domestic legitimacy may threaten the voluntary participation of the States in the Convention system.[2] If the judgments of the court are perceived to be lacking in legitimacy, the greater becomes the risk that the States will regard it the ECtHR’s decisions as an intrusion into their sovereignty. The Convention system should be perceived as an organic body comprising the national and supranational levels that serves a common interest. The “new rights” derived from the provisions of the Convention by employing the “living instrument” approach may acquire full content only after the appropriate reception in the national constitutional system; otherwise, to the consequence will be a proliferation of weak rights.[3]

”A greater political unity between contracting States is needed in order to enact more appropriate and effective enforcement mechanisms concerning general measures”

Another important limit to the successful development is structural. The fact that a constitutional system of 47 European States does not exist in reality[4] puts the Convention system in a delicate position. One of the ECHR mechanism’s limits is the restrained reach of individual justice. Individual justice had proved to be efficient only in those States that take seriously their responsibility to align national legislation in accordance with ECtHR jurisprudence and have developed the appropriate means to do so. Even if the Court has clarified that the judgments execution mechanism established by Article 46 contains the obligation, if necessary, to adopt general measures[5] in order to prevent future violations, this objective obligation is rarely performed for different reasons. In cases where the general measures are not adopted, the price for some contracting States to remain in the club becomes ridiculously low – a few hundreds of just satisfactions per year. The following dilemma arises: from the one hand, individual justice is a limit to the further development of the Convention system, but on the other hand, constitutional justice is limited by the weak political structure. The new constitutional role of the ECtHR, recently expressed by the adoption of pilot judgments, has encountered its limit in the weak political organization of the Council of Europe. A greater political unity between contracting States is needed in order to enact more appropriate and effective enforcement mechanisms concerning general measures. The price of being a member of the most prestigious HR protection system should not be limited to the satisfaction of individual complaints; the system should be able to deliver greater HR protection to the population of the member States of the Council of Europe. Participation in the Convention system has inevitably a strong political character in the field of international relations. Thus, major political pressure might be exercised in order to create appropriate mechanisms necessary to support the constitutional justice delivered by the court.

The definition of precise obstacles to the development of the “living instrument” is an important task, as stepping beyond the limits may undermine the fragile framework of the ECHR protection mechanism. The “living instrument” can evolve further, and the ECHR can become a constitutional instrument of European public order if grounded on coherent case law, well-balanced interaction between national and supranational judicial and representative bodies, and the political will of the contracting States.

[1] The lack of foreseeability of the Court’s judgments has been denounced by many scholars. For example, in the case of Lautsi v. Italy, which related to the removal of crucifixes from the classrooms of Italian public schools, the second section of the Court unanimously held that there had been a violation of the Article 2 of Protocol No. 1, taken together with Article 9 of the Convention. Afterwards, the Grand Chamber reversed the unanimous second section’s decision by 15 to 2. The question must be asked: what violation did seven judges see that 15 judges did not?

[2] Officials from the United Kingdom have expressed their concern and have on different occasions mentioned the possibility of withdrawing from the ECHR.

[3] Some scholars are speaking about current crisis of fundamental rights as a consequence of the impact of the ECtHR on national legal systems. See Diletta Tega, “Il diritto costituzionale e i diritti in crisi” in Etica & Politica / Ethics & Politics, XV, 2013, 1, pp. 146–173.

[4] The member States of the Council of Europe do not form a cohesive political community: the legislative and executive functions of the organization are nearly non‑existent.

[5] The case of Verein gegen Tierfabriken Schwitz (VgT) v. Switzerland (No. 2) (App. no. 32772/02), Judgment of 30th June 2009, Par. 85.

THE RELATIONSHIP BETWEEN INTERNATIONAL HUMANITARIAN LAW AND THE EUROPEAN CONVENTION OF HUMAN RIGHTS, AND THEIR EVOLUTIVE APPLICATION IN THE CONTEXT OF ARMED CONFLICTS

Kristiina Honko, PhD Student, University instructor, University of Tampere

Introduction

This paper focuses on the relationship between International Humanitarian Law (IHL) and the European Convention of Human Rights (ECHR) and the evolution of their application in times of armed conflict. It particularly examines the recent case law of the European Court of Human Rights (ECtHR or Court) in order to ascertain its view on the interaction between ECHR and IHL. The application of IHL in the ECtHR in the context of armed conflicts is marked by an unstable evolution. The paper examines how the ECtHR’s case law has recently evolved following the Court’s more receptive approach and explicit use of IHL.

Case law

The ECHR clearly applies in times of armed conflict.[1] The ECtHR has had opportunities to apply the ECHR in the context of armed conflicts several times.[2] In spite of its increased involvement with cases relating to armed conflicts, the ECtHR has, until recently, shown a notable reluctance to clarify the relationship between the ECHR and IHL. The Court has, however, not had any insurmountable legal obstacle to the application of IHL, and the reasons for the Court’s reluctance to refer to IHL has not been clear.[3] It is claimed that the Court’s approach is at least partly rooted in political reasons, and explicit application of IHL to certain confrontations could be considered as an exacerbation of the situation.[4]

Recently, the ECtHR has been more receptive in its case law than in the past. In the case of Korbely v. Hungary, the ECtHR already used common Article 3 of the Geneva Convention as a basis for its reasoning.[5] This was a notable change from previous case law, which was marked by indirect references to the IHL framework.[6] In the cases of Al-Jedda v. the UK[7] and Hassan v. the UK,[8] the ECtHR seems to continue this development. Both cases address the UK’s human rights obligations during the British military operation in Iraq and discuss the interplay between the ECHR and IHL.

In the case of Al-Jedda, the ECtHR found the UK to be in breach of Article 5 of the ECHR, on the right to liberty and security of the person. The case has specific significance because for the first time, the ECtHR directly interpreted specific IHL treaties. The Court’s implicit finding in relation to IHL was that the provisions of the Fourth Geneva Convention did not constitute a valid legal basis for detention in international armed conflict. This finding was based on the ECtHR’s conclusion that the Fourth Geneva Convention does not impose an obligation of internment on parties to such conflicts. It interpreted Article 43 of The Hague Regulations not as an obligation of the Occupying Power to use internment but as a measure of last resort.[9]

Hassan v. the UK, in turn, reflects an extremely important turning point in the ECtHR’s history. For the very first time, the Court was explicitly requested by a Member State to “disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law”.[10] The case concerned the deprivation of liberty of a young male during active hostilities, and the question before the Court was whether the internment could be considered consistent with Article 5 of the ECHR despite the absence of any derogation by the UK.

The Court’s interpretation of the ECHR left room for the broader powers that States have under IHL. Relying on Article 31 of the Vienna Convention,[11] the majority of judges stated:

…by reason of the co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions.[12]

The ECtHR used three major arguments to come to this conclusion.

  1. State practice used as a tool for interpretation under the Article 31, § 3(b) of the Vienna Convention with regard to the deprivation of liberty during international armed conflict. The Court found that States have not derogated from Article 5 of the ECHR pursuant to Article 15 of the ECHR when engaged in international armed conflicts or when occupying enemy territory. It stated that this constant practice reflected an agreement amongst States that when parties in conflict lawfully rely on Geneva Convention III & IV to intern individuals and adhere to the safeguards against arbitrariness provided therein, the deprivation of liberty cannot simultaneously violate the right to liberty under the ECHR, and there would be no need to derogate.[13]
  2. Interpretation of the ECHR in harmony with other rules of international law, including IHL in line with Article 31, §3(c) of the Vienna Convention and the case law of the International Court of Justice.[14] The Court ruled that “the lack of a formal derogation under Article 15 does not prevent the Court from taking account of the context and the provisions of international humanitarian law when interpreting and applying Article 5 in this case”.[15]
  3. A symbiotic approach, which accommodates both bodies of law by applying human right’s law through the lens of IHL. The Court stated that “the safeguards under the Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law”.[16] It also declared that “by reason of the co‑existence of the safeguards provided by international humanitarian law, the grounds of permitted deprivation of liberty of Article 5 § 1 should be ‘accommodated, as far as possible’, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions”.[17]

EVALUATION
Overall, the Court’s approach to IHL has been inconsistent. While the ECtHR has been of the view that ECHR continues to apply in armed conflicts, it has been unwilling to take any traceable position on whether or not the Court can and should use IHL to interpret the ECHR or directly find violations of IHL.[18]

Therefore, perhaps the most important issue in the case of Hassan is that the Court finally offered its view and clarified its position on the interplay between IHL and ECHR. The Court also rejected the UK’s principal argument that IHL, as the lex specialis, precluded jurisdiction arising under Article 1 of the ECHR.[19] If the Court had accepted such arguments, it would have displaced the entire ECHR where IHL applies. Instead, the Court made the concurrent application of both regimes possible and developed a more nuanced, case-by-case approach that looks at the specific right at issue as well as specific circumstances of each case.[20] By doing so, the Court also prevented the scenario in which the ECHR would, in turn, completely overrule IHL. It also guaranteed that the ECHR remained relevant in armed conflict situations and left room for military necessity to meet the specific military and security challenges that arise during armed conflict.[21]

The debate on the interaction between international human rights law and IHL in armed conflicts is the one of the responses of our time to the dynamics of war and law. There is a growing awareness of what is right and wrong in the context of armed conflicts, and nowadays it can only be identified by reference to both IHL and international human rights law.[22] At the same time, the concepts of war and peace have become blurred by the changing characteristics of warfare. Furthermore, the more complex, changing character of warfare raises the need to take into account the application of both IHL and international human rights law. Hence, it can be argued that it was about time the ECtHR adopted a more receptive approach on IHL in order not to be disconnected from reality. Even if the situations of armed conflicts are sensitive and the Court acts under major political pressure, the Court should not abandon IHL in its reasoning. After all, IHL has been conceived by States specifically to regulate armed conflicts. However, development in law, policy, state practice, and jurisprudence also confirm that human rights law has a significant role in regulating armed conflict situations.

ECHR and IHL are both constantly evolving, and in the demands of modern warfare therein probably lies their value. The Court should develop its jurisprudence to use these two bodies of law together so that they complement and strengthen each other. Therefore, flexibility and adaptability are still needed by the Court for a more receptive and dynamic approach to the interpretation of IHL in ECHR to ensure the law is used to protect those who are influenced by armed conflicts.

[1] It is widely accepted that human rights law and IHL are complementary in the sense that they are both applicable in situations of armed conflict. However, in times of war or other public emergency, Contracting States can enter a derogation under Article 15 of the ECHR to limit their obligations under the ECHR. See, for example, Lawless v. Ireland 1st July 1961.

[2] For example, Loizidou v. Turkey (1995); McCann and Others v. the UK (1995); Kurt v. Turkey (1998); Bankovic and Others v. 17 NATO countries (2001); Ilascu and Others v. Moldova and Russia (2004); Isayeva, Yusupova and Bazayeva v. Russia (2005); Markovic and Others v. Italy (2006); Al-Skeini and Others v. the UK (2007), Al-Jedda v. the UK (2008); Korbely v. Hungary (2008); Kononov v. Latvia (2010); Medvedyev and Others v. France (2010); Al-Saadoon and Mufdhi v. the UK (2010), Hassan v. the UK (2014); and Jaloud v. the Netherlands (2014).

[3] See, for example, Gioia, Andrea, The Role of the European Court of Human Rights in Monitoring Compliance with Humanitarian Law in Armed Conflict (Oxford 2011) pp. 245-249, and Droege, Cordula, “The Interplay between International Humanitarian law and International Human Rights Law in Situation of Armed Conflict”, Israel Law Review, Vol. 40, No. 2 2007, pp. 310–355.

[4] Forowicz, Magdalena, The Reception of International Law in the European Court of Human Rights (Oxford 2010) p. 348.

[5] Korbely v. Hungary (2008).

[6] Forowicz, Magdalena, The Reception of International Law in the European Court of Human Rights (Oxford 2010) p. 347.

[7]Al-Jedda v. the UK (2011).

[8] Hassan v. the UK (2014).

[9] Al-Jedda v. the UK paras 42–43 and 107.

[10] Hassan v. the UK para 99.

[11] Vienna Convention on Law of Treaties, 1969.

[12] Hassan v. the UK para 104.

[13] Hassan v. the UK para 101.

[14] Hassan v. the UK para 102.

[15] Hassan v. the UK para 103.

[16] Hassan v. the UK para 104.

[17] Ibid.

[18] Lubell, Noam, “Challenges in applying human rights law to armed conflict”, International Review of the Red Cross Vol 87 No 860 2005. See also Orakhelashvili, Alexander, “The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?” The European Journal of International Law Vol. 19 no. 1 2008.

[19] Hassan v. the UK para 77.

[20] See Hill-Cawthorne, Lawrence, “The Grand Chamber Judgment in Hassan v. UK”, Blog of the European Journal of International Law, 16 September 2014.

[21] However, the decisions of Al-Jedda and Hassan are also criticized. See, for example, Pejic, Jelena, “The European Court of Human Rights’ Al-Jedda judgment: the oversight of international humanitarian law”, IRRC, Volume 93 Number 883 September 2011 p. 851; Ekins, Richard, Morgan, Jonathan, and Tugendhat, Tom, “Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat”, Policy Exchange 2015; and Bernard, Frederic, “Deprivation of liberty in armed conflicts: the Strasbourg Court’s attempt at reconciling human rights law and international humanitarian law in Hassan v. UK”, ECHR Blog 2 October 2014.

[22] Oberleitner, Geir, Human Rights in Armed Conflicts, Law, Practice, Policy (Cambridge 2015) p. 360.

How to systematize case law: Examples from the green jurisprudence of the European Court of Human Rights

Heta Heiskanen, Doctoral student, University of Tampere

Criteria for case selection: What should be taken into account and how should one systematize the cases?

The traditional selection of cases is based on their significance. This classification has been based on two criteria. Firstly, cases decided by the Grand Chamber (GC) have been given higher value than judgments given by a lower section. The logical reason for this is that the GC judgments involve a greater number of judges, thus representing a wider view. However, between 2013 and 2014 the Grand Chamber has issued fewer than 30 judgments and decisions.

In addition, the publication of case reports has also indicated which cases are regarded as significant. However, in past two years, the number of published judgments and decisions has totalled just 56 (28 judgments and 28 decisions). Results from both the Grand Chamber cases and the case reports narrow the overview of the jurisprudence of the European Court of Human Rights (ECtHR).

”case selection should be representative”

Secondly, in addition to the traditional selection criteria, the selection process can be reflected in the light of the general aim of research and science, namely to achieve objective results. In addition, the purpose is to reveal developments that have not been recognized in earlier research. These two aims set the basis for case selection criteria. The objectivity of research is connected to its coverage and repeatability, and as a result, case selection should be representative.

In pragmatic terms, the search engines of Human Rights Documentation (HUDOC) and the review of the research will result in an insufficient amount of cases. However, in the context of environmental cases, for example, there is no clear understanding or definition of what constitutes an environmental case. The definition may vary across research papers, and the search engines do not provide completely reliable data. There is a fact sheet available listing a wide range of cases providing guidance in this respect. Nevertheless, the definition of an environmental case is not stable. Consequently, researchers should be clear to spell out what is meant by an environmental case in order to ensure consistency in selecting cases that fulfil the criteria.

In my doctoral dissertation, for example, the adopted definition for an environmental case is a case making reference to the environment as a threat to life or health, a protected interest in society, a competing interest used in a balancing test, or as subject to the right to information and access to court. The environment is seen as a factor in a balancing test related to the economy, but also in relation to minority rights, such as Roma rights. The coverage of environmental issues is wide, including human-caused nuisances, natural disasters, city planning, and internal environmental hazards, such as asbestos-related problems. City planning also has connections to the rights of indigenous peoples.

In addition, case selection is connected to the aim and the target audience. It may be that the aim of the research is not provide a holistic picture of the overall development of cases, but rather to focus on departures from case continuums. To achieve the aim, the selected cases should focus on reflecting the shifts in jurisprudence rather than on every relevant case. Alternatively, the aim of the research may be to introduce doctrinal developments. In this case, the selection criteria is narrower. Despite the narrow scope, representativeness should be guaranteed. Focusing on only a few cases may produce misguided results.

”the development of a substantive area such as environmental cases has not occurred in a legal vacuum; it has been impacted by other cases and doctrines”.

Furthermore, the development of a substantive area such as environmental cases has not occurred in a legal vacuum; it has been impacted by other cases and doctrines. Thus, despite the environmental focus of the research, it is necessary to use cases that are not environmental in nature. The selection of these cases is based on the assumption that they are so-called landmark cases that illustrate a significant doctrinal development. Identification of these cases is mainly based on the frequency with which the ECtHR itself and the scientific community refers to them. For example, the Demir and Baykara v. Turkey case illustrates the use of international trends. However, one should not blindly follow others, as there is a risk that potentially significant cases may be left unrecognized.

”an audience that does not have prior knowledge should be provided with the relevant cases in order to a build basic understanding of the case continuums”

The aim of the research and selection of cases is also connected to the target audience. Audiences specialized in specific set of cases will be interested in the latest cases. Conversely, an audience that does not have prior knowledge should be provided with the relevant cases in order to a build basic understanding of the case continuums. Otherwise, for readers without a holistic picture of the case-continuum, recent developments may give a false impression, for example, that the area of environmental jurisprudence is not an already well-established body of case law.

The main lessons from environmental ECtHR case systematization

”If case selection is not conducted carefully, there is a risk of emphasizing some cases over others.”

If case selection is not conducted carefully, there is a risk of emphasizing some cases over others. The reason might be the negligence of the researcher in searching through all the relevant cases. Alternatively, the researcher’s case systematization may have restricted views, so the results are not fully representative. Current ECtHR research has, for example, referred actively to the Hatton v. United Kingdom and Kyrtatos v. Greece cases, which represent the restrictive interpretation of the ECtHR. In parallel, such progressive cases as Mangouras v. Spain have not been the centre of attention, even though the latter case represents a more recent decision from the Grand Chamber than the Hatton case.

Case systematization strategies have contributed to this problem. For example, focus on Article 8 cases does not make visible the progressive development under Article 2 and 6.

At the same time, the systematization strategy of environmental jurisprudence has not interacted with the traditions of the systematization of the domestic environmental law cases. The basis for environmental regulation is that the norms govern a specific part of the environment, nature or environmental harm. In ECtHR research, mainly noise/nuisance has served as a basis for the systematization of cases. The rational explanation might be that for a long time, there were few cases per environmental problem. However, nowadays there are sufficient cases to be systematized by the nature of the environmental harm. Such a systematization strategy would help to communicate the developments for traditional environmental lawyers, and this would especially be the case when the systematization strategy is connected to domestic discussion. For example, in Finland, the green ECtHR development has not been adopted in domestic case law or environmental law literature, even though there have been cases against Finland.[1]

In addition, there would be more room for more theoretically oriented or concept-based study in the field of green ECtHR research. It would be interesting to identify the key environmental concepts the ECtHR has used and to determine how these concepts interact with the definitions of other institutions. Furthermore, there has been little research assessing how the environmental cases have contributed to the development of the general doctrines of the ECtHR. These doctrines include positive obligations, consensus, and international trends. For example, research focusing on consensus could assess environmental cases such as Fredin v. Sweden, Uuhiniemi v. Finland, Huoltoasema Matti Eurén Oy and Others v. Finland, Fägerskiöld v. Sweden, and Vilnes and Others v. Norway.

Conclusion

”More transparent criteria for the selection of cases will increase the legitimacy of the results.”

Currently, journal articles on the ECtHR rarely explain the methodology of the research. Indeed, the selection of cases may not be explained at all. More transparent criteria for the selection of cases will increase the legitimacy of the results. Furthermore, the conclusions will be easier to verify and academia and funders will have a clearer understanding of the objectivity of the research. In addition to the selection of the cases, the strategy of systematization could be made clearer specifically in order to create academic discussion on the benefits and limitations of such a systematization. The awareness of the risks and benefits of certain systematization strategies might increase the quality of the research even further. In addition, for students, the discussion of case selection and the analysis of systematization strategies would provide a clearer understanding of “architypes” when conducting legal dogmatic analysis on ECtHR cases.

[1] See, for example, Uuhiniemi v. Finland (App. no. 21343/93), Huoltoasema Matti Eurén Oy and Others v. Finland (App. no. 26654/08), 19th January, 2010 para 3, and Alatulkkila and Others v. Finland (App. no. 33538/96), 28th July 2005, para 68.