Month: May 2021

The impact of infringement proceedings in the Mammadov/Mammadli group of cases: a missed opportunity

Guest Blogger Committee of Ministers, Infringement proceedings, Mammadov v. Azerbaijan, Remedies

Toby Collis, Lawyer at the European Human Rights Advocacy Centre (EHRAC)[1]

Infringement proceedings are a relatively new measure designed to deal with a state’s failure to implement a judgment of the European Court of Human Rights (ECtHR, the Court). Introduced by Protocol No. 14 in 2010, and contained in Article 46(4) of the Convention, the measure is triggered only after serving formal notice on the state concerned, and (which more difficult to achieve) securing a two-thirds majority of votes of the Committee of Ministers (CM). After this, the case is referred to the Court to determine whether the state has, in fact, failed to abide by the judgment. If such a failure is found, leading to a violation of Article 46(1) of the Convention, the case is then returned to the CM to consider any further measures that need to be taken. The CM cannot issue fines, but further measures could include adopting ‘strongly worded’ resolutions or decisions, convening meetings, and (in theory but not in practice) the state’s suspension or expulsion from the Council of Europe.

The infringement procedure was viewed by commentators as unlikely to ever be used. Then, along came the case of Azerbaijani opposition politician Ilgar Mammadov, who was imprisoned in circumstances the Court found had been designed to silence or punish him, and who remained imprisoned despite the CM repeatedly calling for his release. Perhaps because of this outrageousness, and perhaps because the stars aligned making it politically possible to gain the required number of votes in the CM, this case was the first and so far only example of infringement proceedings to be launched.

Now that a number of years have passed since these infringement proceedings were initiated, the purpose of this blog is to assess their impact–both on the situation of Ilgar Mammadov, and on that of several Azerbaijani politicians, human rights defenders and civil society activists who, like Mammadov, won a case in Strasbourg and are waiting for their judgments to be fully implemented. In cases such as these, where a number of judgments raise common issues, the CM will group them together and examine them jointly. The CM has therefore been supervising the execution of all these cases under the Mammadov (now Mammadli) group. We will see that the narrow terms of the infringement procedure—relating only to Mammadov and not the other applicants in the group, and not applying to general measures—led to a missed opportunity to generate meaningful impact.

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What Future for Human Rights? Decision-making by algorithm

Guest Blogger Admissibility, Algorithmic decision-making, Procedure

Veronika Fikfak is an Associate Professor at the University of Copenhagen, where she is leading the ERC Project Human Rights Nudge team (ERC 803891), which looks at how and when states change their behaviour in response to ECtHR judgments. We use computational methods to analyse large datasets of ECtHR case law and follow up processes before the Committee of Ministers. We then apply behavioural insights to understand behaviour of individuals, institutions and states.

The President of the European Court of Human Rights, Robert Spano, recently announced that the Court was looking into introducing algorithmic decision-making to help with new applications coming to the Court. In a speech to the German Marshall Fund of the United States, Spano said:

We have throughout the last decade been introducing reforms and one of them, certainly, is the use of information technology. We are now in a phase where we are looking at to what extent we can, for example, at the registration phase introduce algorithmic or automated decision making so as to try and reduce the extent to which this classical registration phase has to all be done manually. … When it is done, we can use the data introduced into the system in a more effective manner. But I do think moving to the future a mass, a bulk case court like ours will slowly start introducing algorithmic tools to facilitate its tasks.

(see min. 16 and onwards)
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Do human rights go on holiday? The blackout in the Court’s processing of Rule 39 requests for interim measures

Guest Blogger Human Rights Protection vacuum, Interim Measures, Rule 39

Francesco Luigi Gatta, Research Fellow, UCLouvain, EDEM

Thursday 13 May 2021 is a holiday in France, celebrating the Ascension. As a consequence, various offices and services are closed. The European Court of Human Rights makes no exception in this respect. The Court is also remaining closed for the following day, Friday 14 May. 

Nothing strange, so far. Until Monday, 10 May, when this announcement was published in the home page of the Court’s website:

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Feilazoo v. Malta: Immigration detention in the context of the Covid-19 pandemic and beyond and the right of individual petition

Guest Blogger Covid-19, Feilazoo v. Malta, Prisoners

By Dr. Aristi Volou (Post-Doctoral Researcher at the Centre for Fundamental Rights, Hertie School and Associate Editor of Oxford Reports on UN Human Rights Law)

Introduction

On 11 March 2021, the First Section of the European Court of Human Rights (hereinafter the ‘Court’) delivered a highly anticipated judgment which concerned issues related to the Covid-19 pandemic. More precisely, in Feilazoo v. Malta, the Court was called upon to decide on the applicant’s immigration detention next to new arrivals in Covid-19 quarantine, as well as on the conditions and the lawfulness of his immigration detention and on issues related to the right of petition before the Court.

Although we can praise the Court for its balanced approach to the question of access to medical treatment, other aspects of its decision on the conditions of detention are disappointing. First, the Court did not seize the opportunity to develop clear and adequate standards in the context of the deprivation of liberty during the Covid-19 pandemic and thus clearly failed to live up to expectations that it would play an active role in safeguarding the rights of those most affected by the pandemic such as detainees and prisoners. Second, the Court failed to consider all available evidence which would enable it to hold the respondent State accountable for overcrowding in detention.

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Grandma take me home! Visiting rights of (grand)parents and Roma discrimination in Italy: two systemic problems? – Terna v. Italy

Guest Blogger Right to Respect for Family Life, Roma discrimination, Terna v. Italy

Francesco Luigi Gatta, Research Fellow, UCLouvain, EDEM

The case Terna v. Italy (application no. 21052/18) concerns the non-enforcement of a grandmother’s right of access to her granddaughter, who belongs to the Roma ethnic group. It touches upon two serious issues in Italy: visiting rights and Roma discrimination. With the judgment delivered on 14 January 2021, the European Court of Human Rights (ECtHR) found a violation of Article 8 of the European Convention on Human Rights (ECHR) due to the national authorities’ failure to ensure the grandmother’s visiting rights. Going beyond the specific case, moreover, the Court explicitly acknowledged the existence of a systemic problem, since Italy has a long history of delays, disorganisation and judicial decisions left unexecuted when it comes to family issues and access rights. Terna only represents the tip of the iceberg. 

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