30 September 2022
The ECtHR’s Coping Strategy
The European Court of Human Rights (ECtHR) is operating in an increasingly challenging political and legal environment. Even if member states have stopped short of far-reaching reforms, they have signaled their collective desire for a more restrained Court, starting with the 2012 Brighton Declaration. Governments in established democracies, like the United Kingdom, have refused to implement or dragged-out implementation of ECtHR judgments. In some countries, government officials or major politicians have suggested exiting the Court’s jurisdiction altogether. Finally, several member states have rolled back domestic rights protections for politically unpopular groups, such as criminal defendants, suspected terrorists, asylum seekers, and non-traditional families. Continue reading >>
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22 July 2022
Citizenship Imposition is the New Non-Discrimination Standard
Never before has the failure to naturalize been used by the Court against discriminated permanent residents, just as it would be unthinkable to greenlight the humiliation of Muslims by an Islamophobic government for failure to convert. The meaning of ‘discrimination’ in ECHR law has become less clear as a result of Savickis. Continue reading >>
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21 July 2022
On Osman Kavala and Turkish Judicial Failures
The Committee of Ministers of the Council of Europe, in charge of monitoring compliance with ECtHR rulings, will now deliberate as to how to handle Turkey’s now judicially confirmed failure to release Kavala. Suspension of Turkey’s membership in the Council of Europe, is an option that is on the table, at least theoretically. The Kavala case is larger than Kavala himself though. Continue reading >>
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16 May 2022
Climate Change Litigation Before the ECtHR
Verein KlimaSeniorinnen Schweiz and Others v. Switzerland is the first case of climate change litigation before the ECtHR where all domestic remedies have been exhausted. The Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber. This reinforces the potential of the case to become a landmark ruling determining the Court’s approach to climate change.
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12 April 2022
Anything Goes?
Last month, the ECtHR ruled in the case of Johansen v. Denmark on the deprivation of nationality and expulsion for terrorist offenses. It rejected the applicant’s complaint of an infringement of Art. 8 ECHR. The decision underlines the Court’s reluctance to engage with issues raised by deprivations of nationality in terrorism cases. Instead of setting out clear limits on such measures based on the rights guaranteed by the Convention, the Court does not seem to be willing to interfere with measures related to national security, no matter how drastic the consequences for the individual. Continue reading >>
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05 April 2022
A Backdoor Exit from the European Convention on Human Rights
Russia left the Council of Europe on 16 March 2022. The European Court of Human Rights declared that Russia will remain a Party to the Convention until 16 September 2022. This resolution is inconsistent with applicable termination rules. But even beyond technicalities, it reveals fundamental defects in the design of the ECHR denunciation clause. Forced withdrawal and expulsion from the Council, as mechanisms to sanction severe violations of human rights, should not have the effect of relieving the delinquent State of its conventional human rights obligations. Continue reading >>
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11 February 2022
When Is a Court Still a Court?
On 3 February 2022, the European Court of Human Rights (ECtHR) issued a judgment in the case of Advance Pharma sp.z o.o. against Poland. This is another judgment on the irregularities in the appointments of judges to the Polish Supreme Court, in which the ECtHR confirmed its previous rulings. But it also touched on several implications of its conclusions for the Polish judiciary. It suggests that they may be relevant for ordinary courts in Poland as well and that Polish authorities should ensure the possibility to reopen proceedings in certain situations. Continue reading >>
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08 February 2022
The Duty to Exhaust Remedies with Systemic Deficiencies
On 3 February 2022, the European Court of Human Rights issued its judgment in Advance Pharma v Poland and addressed the question of whether an applicant is required to exhaust domestic remedies that suffer from systemic deficiencies for the first time. While the Court does not yet give a clear answer to this particularly sensitive issue, this case is another reminder of just how difficult it is for the Convention system to engage with countries that structurally impair their judicial system. Continue reading >>
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24 January 2022
Taking European Judgments Seriously
Today ends the deadline for stakeholder consultations for the 2022 EU rule of law report. The report is a welcome addition to the EU’s rule of law toolbox but it is missing a vital element: the non-implementation of judgments of international courts, including both the Court of Justice of the European Union and the European Court of Human Rights. Continue reading >>10 January 2022