Eight Trends and Eight Challenges to the European Court of Human Rights – Paul Harvey

16 February 2016 by

Strasbourg_ECHR-300x297Introduction

The opening of the Strasbourg Court’s judicial year every January always provides an opportunity for reflection on the themes and challenges which will define the Court’s jurisprudence for the coming year. This year, the theme of the seminar held at the Court to mark that opening was “International and national courts confronting large-scale violations of human rights””. I should like to offer eight predictions as to the other themes which will define the work of the Strasbourg Court this year. Given the Court’s pending caseload is still over 64,000 cases, these predictions are necessarily impressionistic. It will be for readers to judge whether, by this time next year, they have proven accurate.

(1) Security

The Court will continue to grapple with the security situation in Eastern Europe. Foremost on its docket are the inter-state cases involving Russia and Ukraine, but the Grand Chamber will also return to the issue of jurisdiction in Transdniestria in Mozer v. Moldova and Russia, in which it held a hearing on 4 February 2015.

(2) The ethical reach of Article 3

The Court will continue to face the difficult question of determining when ill-treatment will amount to violation of Article 3 (“the Article 3 threshold”). In Bouyid v. Belgium a majority of the Grand Chamber found slaps administered by the police in detention to detainees (one of whom was a minor) met that threshold. In expulsion cases, the test continues to be whether, if expelled, there would be a real risk of ill-treatment to the applicant. This applies irrespective of the conduct of the applicant (Chahal, Saadi, etc.) but does not act as a bar to the removal of applicants who may be receiving life-sustaining medical treatment, even if they will be unable to access the same treatment when removed to their country of origin (N v. UK).

These seemingly differing approaches to Article 3 prompted one domestic court to puzzle at the “ethical reach” of the Court’s Article 3 jurisprudence. Moreover, it would appear difficult to reconcile the approach to domestic cases taken in Bouyid with the approach taken in expulsion cases such as N v. UK. There appears to be no easy way to resolve such questions when the absolute nature of Article 3 prohibits any balancing exercise and yet does not create any social rights or entitlements, and when the Court has thus far disavowed any difference of approach to domestic cases and expulsion cases (Harkins and Edwards v. UK). The Grand Chamber may return to these issues in Paposhvili v. Belgium (proposed return of an applicant with chronic lymphocytic leukaemia to Georgia).

The Court also has an opportunity in Muršić v. Croatia to clarify an issue of some direct importance for many Contracting States (and, by extension, indirectly for other Contracting States extraditing to those countries): when prison overcrowding will amount to a violation of Article 3.

Perhaps as a precursor to the growing refugee crisis on Europe’s eastern and southern borders, the Grand Chamber will consider four further immigration cases: Khan v. Germany (proposed deportation of applicant living in sheltered accommodation); Khlaifia and others v. Italy (collective expulsion from Lampedusa); and J.K. and others v. Sweden (burden of proof) and V.M. and others v. Belgium (“Dublin” returns).

(3) The relationship between Article 6 (1) and Article 6(3)

In the Court’s criminal law jurisprudence, there are two prevailing schools of thought as to the relationship between the general right to trial guaranteed by Article 6(1) and the minimum rights protected by Article 6(3) (for instance, right to a lawyer and right to examine witnesses). One school holds that the Article 6(3) rights are stand alone and capable of founding a breach in themselves; the other holds that they are merely to be taken into account in conducting a general assessment of the fairness of a trial. The text and structure of Article 6 does not make this an easy question, but it would be unfortunate if the Court did not continue its endeavours to find a middle path between both schools.

The question may arise in the Grand Chamber’s consideration of Ibrahim and others v. UK (right of access to a lawyer) and the application of the Grand Chamber’s judgment in Schatschaschwili v. Germany (refining the Al-Khawaja and Tahery judgment on the right to examine witnesses) when follow-up cases on that issue begin to come before Sections of the Court.

(4) The scope of private life

 The interpretation of ‘private life’ under Article 8 of the Convention clearly must evolve as social circumstances change and, for that reason, it would be unwise to attempt an exhaustive definition of it. However, at the same time, private life cannot be so broadly interpreted that it covers every disruption to everyday life, nor can Article 8 become a catch-all provision in the Convention. Concerns that it has become precisely that led one Justice of the Supreme Court, Lord Walker, once to entitle a lecture “the Indefinite Article 8”. Similar reservations were expressed in the separate opinions written in the Chamber’s judgment in Dubská and Krejzová v. the Czech Republic, on the prohibition in Czech law on health professionals assisting at home births. The case was referred to the Grand Chamber and may thus provide an opportunity for further reflection on whether the trend towards a broad interpretation of private life should continue. It may also allow further reflection on the related (and equally difficult) question as to whether the refusal to provide facilities to applicants touches upon the State’s negative or positive obligations under Article 8 (see paragraph 2 of Judge Lemmens’ dissenting opinion in the case).

 (5) The cross-border dimension to family law

The cross-border dimension to family law will continue to generate cases. For a time, the main controversy in the Court’s case-law in this field was the correct interaction between Article 8 of the Convention and the Hague Convention on the Civil Aspects of International Child Abduction. X v. Latvia appears to have settled that general question, although parents still continue to bring complaints as to its application by the domestic courts. Currently, the main question before the Court is the question of international surrogacy and the extent to which a failure to recognise surrogacy arrangements concluded abroad violates the rights of the parents and, more pressingly, the rights of the children born under those arrangements. Violations of the Article 8 rights of the children (but not the parents) were found in Mennesson v. France and Labassee v. France. The issue is before the Grand Chamber in Paradiso and Campanelli v. Italy, where a complicating factor is that the parents/applicants were found not to have any biological link with child born under the surrogacy arrangement they had made.

 (6) The balancing of rights

A perennial feature of the Court’s Article 8 and Article 10 jurisprudence is how to balance the competing rights protected by those Articles. One trend which may continue in 2016 is the shift in the Court’s judgments away from deciding itself where the balance lies in any given case towards setting out detailed criteria to be applied by domestic courts in carrying out that balancing exercise, and to finding more “procedural” violations when – and only when – domestic courts fail to apply these criteria fully. That shift appears reflective of a desire to emphasise the principle of subsidiarity, and evidence for it can be found in the Grand Chamber’s judgments in Pentikäinen, Kudrevičius and others and Couderc and Hachette. The Grand Chamber’s consideration of cases such as Bédat and Satakunnan may provide further opportunities for the continuation of that trend.

(7) Austerity

 The Court is likely to continue to receive applications challenging austerity measures taken in various Contracting States, usually by applicants who have had pensions or other social security benefits reduced, in some cases radically. The majority of such cases have been dismissed, with the Court applying the “proviso of the possible” doctrine (the doctrine, originating in German constitutional law, according to which a State cannot be forced to comply with its obligations in the framework of social rights if it does not possess the economic means to do so: see Da Silva Carvalho Rico v. Portugal at paragraph 44). The Grand Chamber will consider this issue for the first time in Béláné Nagy v. Hungary, where the Chamber judgment of 10 February 2015 found that the removal of the applicant’s disability pension by means of consecutive amendments to the eligibility criteria meant she was made to bear an excessive and disproportionate individual burden in violation of Article 1 of Protocol No. 1.

 (8) Technology

 The last six months have seen a number of important judgments concerning the implications of technological advance on human rights. Beginning and end of life issues were considered in Parrillo v. Italy and Lambert and others v. France. Surveillance was addressed in Roman Zakharov v. Russia and Szabó and Vissy v. Hungary. In future cases, perhaps the question of broadest importance is the extent to which expression on the internet can be accommodated within existing principles on freedom of speech or whether the nature of the internet is qualitatively different from other forms of expression. Early attempts to consider this question can be seen in the Court’s judgments in Delfi AS v. Estonia, Cengiz and others v. Turkey and MTE and Index.hu Zrt v. Hungary.

Conclusion

These eight trends represent eight challenges for the Strasbourg Court which most national and international courts would find difficult. However, what this brief survey reveals is that perhaps the greatest challenge for the Strasbourg Court in 2016 is that, in contrast to most other courts, it will have to decide these eight issues simultaneously. At the same time, if 2015 figures are any guide, in 2016 the Court will also be expected to deliver over 800 judgments and declared inadmissible or strike out over other 43,000 applications. In many of those 800 judgments, the Court will be required to examine complaints concerning the alleged denial of some of the most basic rights guaranteed by the Convention because domestic examination of the applicant’s complaints has been entirely absent. It will also, rather unfortunately, be required to give judgments on issues which it has repeatedly found breaches of the Convention but no remedial action has been taken at the national level.

The issues facing the Strasbourg Court are becoming more, not less, difficult. They demand a redoubling of the Court’s efforts to produce a coherent and consistent body of case law which gives real guidance to domestic courts. The question is whether the Court will be able to do that given its current case-load or whether in 2016 the time has finally come for a strategic re-thinking of the Court’s role. It is as much a hope as a prediction for 2016 that such a strategic re-thinking could finally result in a realisation that the proper role for the Court is to consider only cases of general importance or those raising allegations of human rights violations of the worst kind. That would eventually give the Court the time and resources to give these issues the consideration they deserve.

Paul Harvey is a UK lawyer in the Registry of the European Court of Human Rights.  The views expressed are personal. Comments more than welcome via paulgharvey@gmail.com or below.

8 comments


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  3. marianne says:

    What a good article and a great overview of what to expect.

    However, I find the crux of the article in its conclusion. I really hope it is a well-founded prediction that the time has come for a strategic re-thinking of the Court’s role. Wider use of pilot judgments, recent changes in the procedure and the launching of some projects raise the hopes; indeed, we are all well-aware of, for instance, the length-of-proceedings, prison conditions, or judgments’ non-enforcement standards and the Court need not spend too much time and resources on them.

    Same cannot be said about other matters such as the right to a remedy under Article 5 (4) (should a detainee be taken to court immediately after the arrest or some time is allowed?), the prisoner’s right to transfer (is it protected under Article 6, Article 8, or at all?), what does it mean “a tribunal established by law” ( see Miracle Europe KFT v. Hungary), the home birth (and, yes, I refer exactly to the indefinite scope of Article 8 and the correlated burden on the states to regulate an indefinite number of issues), the right to access to information (to be or not to be under Article 10?), the double jeopardy provision, etc. Also, whereas “the exceptional circumstances” of a case may be an important factor when reaching a ruling, turning it into a decisive one on a somewhat regular basis may prove counterproductive.

    It would be in everyone’s interest if the Court’s intellectual capacity is channelled into dealing with controversial issues of greater importance, ensuring coherence, consistency, and clarity of the case-law. These goals do not always coincide with one’s personal views or beliefs. In such situations, it is good to remember the words of the late Judge Scalia: “If you are going to be a good and faithful judge, you have to resign yourself to the fact that you are not always going to like the conclusions you reach. If you like them all the time, you are probably doing something wrong.”

    I believe the Court has the energy and capacity to find its proper role. Articles as the one above only support my conviction.

  4. sarah says:

    This is indeed a very helpful post, thank you.

    While undoubtedly the list above contains topics of major importance and despite the fact that the interpretation of Article 4 of Protocol No. 7 is not stricto sensu a UK concern, I would still add to the list the awaited judgment of the Grand Chamber in the case of A and B v. Norway, no. 24130/11 (hearing was held in January 2016).

    The case brings back the Court to the controversial issue of the practical implications of the ne bis in idem principle; however, this time the Court will be reflecting upon the so-called “parallel proceedings” and their compliance with Article 4 of Protocol No. 7.

    It is well-known that the Court’s case-law on the meaning and application of the principle has had a significant impact on the legislation and jurisprudence in a number of Contracting States, sometimes causing confusion and leading to practical difficulties when balancing between the proclaimed prohibition and the public interest in prosecuting criminal offences. It will be very interesting to find out whether the Court will go even further and raise the standard, leaving yet narrower margin for the States to maneuver.

    In this line of thinking, I couldn’t but agree with the concept of “redoubling of the Court’s efforts to produce a coherent and consistent body of case law which gives real guidance to domestic courts.”

  5. batesed says:

    Reblogged this on ukstrasbourgspotlight and commented:
    This is a fantastic blog post on some of the key jurisprudential challenges facing the Court in 2016.

  6. batesed says:

    Thank you very much indeed for this very informative blog post.

    It is extremely valuable to have this insider’s perspective on some of the key issues of Convention law that lie ahead for resolution by the Court over the next year (it is almost impossible to gain this level of insight from the outside). The issues are of profound significance for human rights law.

    At the same time your concluding comments provoke further thoughts on what is realistic for the Court to do, and to expect of it, given the pressures being placed upon it.

    ‘Further thoughts’ – for the CDDH Report on the Long-term Future of the Convention system confidently (or so it seems) maintains that, without further amendment of the Convention, ‘the Court [currently] has the capacity to adjudicate individual cases and, while doing so, to focus on the interpretation of the Convention providing a more general interpretive guidance that may be applied to other situations than the particular case’ (para 94).

    If that is the deal, so to speak, it seems that the Court will have no other option but to make further hard choices as it seeks an appropriate trade-off between dealing with numerous ordinary well-founded applications reaching it, and ensuring that it has the appropriate (thinking) time and space to address cases that typify the eight challenges you refer to. When resolving those questions/ challenges the importance of the Court retaining a reputation for intellectual rigour cannot be underestimated – it is surely a key factor that enables it to retain its authority.

    Ed Bates.

  7. Well, in my opinion, the major challenge for the Court will be to establish a sound coorporation with the Luxembourg Court of the European Union in the aftermath of Opinion 2/13. The relationshop between EU law end ECHR has become extremely complex after Opinion 2/13 and I could fear a competition between the two Courts as to who is the master of fundamental rights. If this happens, then the citizens of Europe will have a hard time figuring out how their actual fundamental rights is defined.

  8. Miroslav Baros says:

    It is interesting that there is no mention of Article 5 ECHR among these eight challenges. In Lokpo and Touré v Hungary (Application No. 10816/10; final on 08/03/2012), Abdelhakim v Hungary (Application No. 13058/11; final on 23/01/2013), and Said v Hungary (Application No. 13457/11; final on 23/01/2013), the Court found Hungary’s detention of asylum seekers to be in violation of Article 5(1). I would put Article 5 on the very apex of the challenges.
    Article 31(2) the 1951 Geneva Convention requires that any restrictions imposed on refugees are deemed ‘necessary’ by the Contracting State. In addition, Article 8(2) of the Reception Conditions Directive (recast) (“RCD recast”) provides that Member States may only detain an asylum seeker ‘when it proves necessary’. Considering the current circumstances I am pretty sure this issue will dominate in the years to come.

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