The discovery in flagrante delicto, the Kafkaesque fate of a Supreme judge and the Turkish Constitutional Court: The Alparslan Altan case in Strasbourg

By Emre Turkut, PhD researcher at Ghent University

On 16 April 2019, the Second Section Chamber of the European Court of Human Rights (the ECtHR) delivered a long-awaited decision in the case of Alparslan Altan v. Turkey, an application lodged by a former judge serving on the Turkish Constitutional Court (TCC) to challenge his arbitrary placement in pre-trial detention in the aftermath of the 15 July 2016 attempted coup. The application was pending in Strasbourg since 16 January 2017. In its judgment, the ECtHR found that the applicant’s initial pre-trial detention was not lawful within the meaning of Article 5/1 of the European Convention on Human Rights (ECHR) and was not based on reasonable suspicion that he had committed an offence under Article 5/1 (c) ECHR. Continue reading

Election of the ECtHR Judge in Ukraine: from bad to worse

By Kanstantsin Dzehtsiarou (University of Liverpool)

As I have predicted in my previous blog post on this issue, the campaign for election of a judge in Ukraine has already proved to be a good case study illustrating the challenges that the Council of Europe institutions have to confront. These challenges now mainly result from poor national practices which might lead to suboptimal lists of nominees which in turn have to be rejected by the Council of Europe. These rejections always lead to delays in appointment of new judges for the Court. Luckily, the ECHR does not have the rule that the judge whose term is over cannot sit on the bench. Otherwise, these delays could have been effective in sabotaging the work of the Court. In any event, it is already fair to say that the Ukrainian national selection procedure reflects very bad national practices. On 4 March 2019 the president of Ukraine established an ad hoc selection committee; last week (week commencing on 22 April 2019) it announced the competition. The details of these announcements suggest that the Ukrainian authorities aim to limit the possible pool of candidates as much as possible in order to avoid real competition. Continue reading

The mountain gave birth to a mouse: the first Advisory Opinion under Protocol No. 16

On 10 April, the Grand Chamber of the European Court of Human Right adopted its first Advisory Opinion under the new Protocol No. 16 to the ECHR, which entered into force on 1 August last year. This Protocol, which has so far been ratified by twelve States, allows the “highest domestic courts” to request the European Court to give an Advisory Opinion on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”. The objective of the Protocol is to “further enhance the interaction between the Court and national authorities and thereby reinforce implementation of the Convention, in accordance with the principle of subsidiarity.”

In this blog post, I will briefly discuss the content of this Advisory Opinion “concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother”, before turning to the question as to what lessons can more broadly be drawn from it regarding the kinds of policy choices the Court has to make when applying the Protocol 16 mechanism. Continue reading

Suspicionless Stop and Search Powers at the Border and Article 8: Beghal v United Kingdom

By John Ip, University of Auckland Faculty of Law

On 28 February 2019, the First Section Chamber of the European Court of Human Rights (ECtHR) delivered its decision in Beghal v United Kingdom, a de facto appeal from a 2015 UK Supreme Court decision concerning the question of whether Schedule 7 to the Terrorism Act 2000 was incompatible with various rights under the European Convention on Human Rights. The ECtHR concluded unanimously that the applicant’s right to respect for private and family life under Article 8 had been infringed. Continue reading

What future for settlements and undertakings in international human rights resolution?

By Nino Jomarjidze and Philip Leach

Resolving problems through settlements and by eliciting undertakings from governments has become a significant feature of the Strasbourg landscape. At the European Court of Human Rights (the Court), the use of friendly settlements (agreed confidentially between the parties) has been on the increase. So too, for ‘unilateral declarations’ (UD) which are utilised by the Court to resolve cases on terms put forward by the government, and which are deemed acceptable by the Court, even in the absence of agreement from the applicant. In 2018, more than 3,000 cases were resolved either by settlement or by UD, a 34% increase from the previous year. Within that figure, the number of priority cases resolved in this way more than doubled in the same period. Indeed, in 2019 the ECtHR is trialling a new non-contentious phase in its proceedings, which means that when a government is notified of a case, the parties will have an initial 12 week friendly settlement phase, followed by a 12 week contentious phase. More than that, the Court registry will itself usually make a friendly settlement proposal setting out suggested terms.

Such alternative forms of dispute resolution have been relatively under-explored and deserve further scrutiny. A common feature of both friendly settlements and UDs is that governments will provide undertakings to take remedial steps, which become binding under international law. Their significant potential is reflected in the fact that such undertakings can go further than the ECtHR itself would go in its judgments. But whose job is it to assess whether an undertaking has been met, and what happens when governments do not comply? The Committee of Ministers (CM) has a supervision role vis-à-vis friendly settlements, but will rarely monitor UDs – only when they are incorporated into a judgment of the Court, rather than a decision. Continue reading

Vulnerability, Rape, and Coercive Obligations: A Discussion of E.B v. Romania

By Corina Heri, postdoctoral researcher at the University of Amsterdam

Three years ago, on this blog, Lourdes Peroni wrote about the failings of the domestic response to the alleged rape of an 11-year-old girl in M.G.C. v. Romania. Today, the ECtHR is continuing to apply ‘coercive obligations’ regarding rape and sexual violence, as crystallized by that judgment. On 19 March 2019, it issued the latest in a line of cases concerning failures to protect victims of sexual violence and to put in place a system that allows for the effective punishment and prosecution of sexual offences. In this specific context, the Court has issued some of its arguably most victim-oriented and context-sensitive jurisprudence to date, relying heavily on the vulnerability of the victims. Continue reading

Election of Judges of the European Court of Human Rights: Ukraine, the Beginning

By Kanstantsin Dzehtsiarou (University of Liverpool)

Election of judges is crucially important for the legitimacy, reputation and authoritativeness of the European Court of Human Rights (ECtHR). The Court needs leading academics and practitioners not only to come up with well-drafted and reasoned judgments but also to ensure that these judgments are then embedded into the national legal systems of the Contracting Parties to the Convention. The role of the national judge therefore includes education and dissemination of the core principles and values of the Convention in their home countries. When these principles are presented by a well-respected professional, their weight increases exponentially. In order to choose the best candidates the selection procedure should be clear, transparent and based on merits of the candidates. This post is the first one of a series of posts, spread over the coming months, which will be looking at the selection procedure that commenced last week in Ukraine. In these posts, I will try to use the developments in Ukraine to illustrate the challenges that the Council of Europe and its Member States face in that regard. Continue reading