Protocol 14 to the European Convention on Human Rights entered into force today

The long history of Protocol 14 to the ECHR has come to an end today.

The Protocol that amends the European Convention of Human Rights (ECHR) has taken a long way until its ratification - see some of my posts on the topic here, here, here or here.

With the entry into force of the Protocol, the work of the European Court of Human Rights (not to be confused with the EU Court!), which is overloaded with cases, will be reformed so that inter alia admissibility checks can be done more easily, speeding up the judicial process and freeing resources for those cases that are actually admissible.

Protocol 14 is also important for the EU, because it allows the accession of our Union to the human rights convention and the jurisdiction of the human rights court. I've covered the respective EU procedure in several posts.

In this sense, today is a good day for human rights in Europe and hopefully also for both the European Court of Human Rights and the European Union.

Protocol 14 finally ratified

According to Jaanika, the Russian upper chamber has followed the Duma approval and finally ratified Protocol 14 to the European Convention on Human Rights.

This ratification will allow the reform of the European Court of Human Rights and the accession of the EU to the European Convention of Human Rights.

Also on the issue: Le Taurillon

Russia and the ratification of Protocol 14 (Update)

Finally: The New York Times reports that Russia is going to re-enter into the ratification process of Protocol 14 to the European Convention on Human Rights (ECHR) today.

The ratification will allow the long awaited reform of the European Court of Human Rights as well as open up the legal path for the EU to accede to the ECHR, which is stipulated by the Lisbon Treaty. (Update (noon):) The Council of Europe, the mother organisation of the ECHR, welcomes this move in a freshly published press release.

I wrote about the both, the indications that this might happen as well as the EU's work regarding the legal steps to join the ECHR, which you can find under the label "ECHR".

I am glad to see these developments, because like with the ratification of the Lisbon Treaty, Protocol 14 will not solve all the problems but it will allow to look ahead - and that is already a success after such a long stalemate.

Supplement: The ECHR Blog also quotes ITAR-TASS reporting the ratification of Protocol 14 today.

Update: The ECHR Blog has updated its post with the result of the Russian Duma vote - 392 of 450 - and the European Court of Human Rights issued a statement relief, although warning that Protocol 14 will not solve all the problems related to the heavy case load of the ECtHR.

Protocol 14 to the European Convention on Human Rights closer to ratification

I have to admit that I had serious doubts that Protocol 14 to the European Convention on Human Rights - the reform of the European Court of Human Rights - would ever enter into force, but now it seems as if a solution was near.

The reform of the overloaded European Court of Human Rights has been halted by the refusal of the Russian Duma to ratify Protocol 14, and there has been a deadlock for over three years - since Norway ratified the document as country 46 out of 47 (at the time 45 out of 46 at the time) in October 2006.

In order to reduce the case-load, an interim protocol - Protocol 14bis - had been put into place after the ministerial meeting in Madrid in May (declaration) and became active in July. Nevertheless, the future of human rights protection in the light of the non-ratification of Protocol 14 was still unclear and is supposed to be discussed at a special conference in Interlaken in 2010.

Now, according to a Council of Europe press release (UPDATE: the press release has been deleted, see my follow-up post), the Russian Duma has finally indicated its approval to the ratification of the document. This move followed a decision by the Committee of Ministers' Deputies (= the CoE's COREPER) last week, which followed a non-public letter sent by Russia in early November (see the last agenda item of the CoE-meeting from 6 November 2009), as we learn from Itar-Tass.

Council of Europe Secretary General Jagland (who is also the Nobel Peace Prize Committee Chairman) is on a visit to Russia right now, probably discussion this issue.

And despite the general urgency of the reform of the European Court of Human Rights, the ratification of Protocol 14 would also allow the EU to join the European Convention of Human Rights as I have discussed in a previous post.

I am still hesitant to applaud but since the ratification of Protocol 14 looks as close as never before in the last three years, I see a light on the horizon and I am hoping that Russia will proceed quickly with the necessary steps to ratify the Protocol.

Blogging and the legal mess before and after Lisbon: ECJ, ECtHR, and Protocol 14bis

The beauty of blogging does not lie in the superficial debates on topics of obvious urgency but in the minor but messy issues that are irrelevant to most and thus for the mainstream media (making them even less relevant for most).

Although the former is necessary in the EU case because of the obvious lack of relevant public debates, taking a look at minor issues and debating them often seems to make up the real added value of using social media to advance one's understanding of the world.

Like the following:

When I recently wrote about the foreseen accession of the EU to the European Convention on Human Rights (ECHR), I highlighted the legal provisions set by the Lisbon Treaty and the fact that I expect a long bargaining process before the EU accessing the ECHR will become reality.

I didn't write about more details, thinking that this would be enough for the moment.

Yet, a few days later, the Adjucating Europe blog raised questions on the same issue, probably almost unnoticed because this was in an article on a specific case at the European Court of Justice (ECJ):

"This accession – if done in hurry – might lead to an unprecedented mess. A mature reflection is in fact needed.

What would be the exact scope of the Strasbourg Court’s competence? I am curious to see how the Strasbourg Court will deal with increasing litigations involving EU citizens’ rights, residence rights or provisions of the EU Charter of Fundamental Rights not explicitly enshrined within the ECHR?"

More interesting than these questions is the short discussion in the comments to that post in which we learn that not only is the European Court of Justice already referring to judgements of the European Court of Human Rights (the ECtHR in Strasbourg oversees the ECHR), but that even the Strasbourg court has already been using ECJ jurisprudence for his own judgements.

Still, it is not clear to us how their relation will be in the future and how the ECtHR might even use the Charta on Fundamental Rights and Freedoms (as part of EU law) for its judgements once the EU as an institution joined the ECHR.

And then, yesterday, the ECHR blog took a look at the matter, and while at first sight it just seems to quote a press release of the Parliamentary Assembly of the Council of Europe (PACE), the post closes with a hint to the debate around the ratification of Protocol 14 to the ECHR.

This Protocol was developed to reform the overburdened ECtHR, which adjudicates on human rights in 47 countries on the whole European continent, but since Russia has signed it but refuses to ratify, it hasn't entered into force yet (which is why it has been replaced ad interim by the so-called Protocol 14bis).

Why is this relevant? Because Protocol 14 to the ECHR also adds a little sentence to the ECHR that reads: "The European Union may accede to this Convention."

What does this mean? It means that even Russia is now an integral part of the debate.

From the 1st of December, the EU, through the Lisbon Treaty, will have the right (and duty) to join the ECHR, but a Protocol that makes this possible legally on the ECHR side is not ratified by Russia that is afraid that this Protocol could make the Human Rights Court more effective and thus would show even more how ignorant Russia is when it comes to human rights.

Kind of complex matter isn't it? Any journalists writing about that mess? Would be glad to see that. But for now, it's just in the blogs.

Oh, and speaking of journalists and blogs in this matter, one could even point to other stories, like the one where the European Court of Human Rights is confused with the EU's European Court of Justice by journalists, which happens quite frequently (see these recent posts by bitmorecomplicated, The European Citizen and Jon Worth) - but that would be to much, wouldn't it?

The EU's accession to the European Convention on Human Rights (ECHR): Waiting for controversies...

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Follow-ups to this article: here, here & here.

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With the Lisbon Treaty entering into force next month, one particular issue that has been part of legal and political discussions for years will become pertinent: The EU's accession to the European Convention on Human Rights (ECHR).

All EU member states have ratified the Convention and most have also signed and ratified the additional protocols to the convention (including the protection of property rights and free elections [Protocol 1] or the prohibition of the death penalty under all circumstances).

The rights guaranteed by the ECHR are supervised by the European Court of Human Rights (ECtHR) in Strasbourg. Since through its member states the legal traditions of the ECHR are also informally part of the EU's legal traditions, the European Court of Justice (the EU's court) is already taking into account rulings of the European Court of Human Rights, but so far there is no legal obligation for the Union to follow the Human Rights Convention's provisions.

However, now that the Lisbon Treaty will enter into force, the EU is getting legal personality and is thus able to join international agreements outside the scope of the former European Community, including the ECHR.

And, for those who did not have time yet to read the Lisbon Treaty, the document explicitly foresees that the EU will join the European Convention on Human Rights (which might mean that the EU institutions will be subject to rulings of the non-EU ECtHR). It deals with this matter in Article 6 of the Treaty on European Union (TEU) and in the Article 218 of the Treaty on the Functioning of the European Union (TFEU) as well as in the Protocol 8 and the Declaration 2 to the Lisbon Treaty.

In short, these provisions foresee that the EU shall in fact join the ECHR, but only after the EU and the member states have agreed on how the EU's legal and practical relations with the different control bodies of the convention will be and after it is clear how one will differentiate between law suits against the EU and those that would go against a member state (which could become difficult when it comes to the execution of EU law in the member states).

In the end, the Council needs to decide unanimously on the accession to the ECHR, and all member states will have to agree individually according to their constitutional provisions.

Although this is now clearly prescribed by the Lisbon Treaty, this is still going to be a very difficult legal and political process, not least seeing the debates around the Charta on Fundamental Rights and Freedoms in some member states or the latest "outrage" in Italy against the Crucifix judgement by the ECtHR.

And so even though the Council of Europe - the international organisation built around the European Convention on Human Rights - is already starting to pressure on the EU start its accession procedures, this could take some time until the EU has ruled out all complex legal and practical problems related to this accession.

Therefore, I expect the process to be quite controversial already between the EU member states and EU institutions (including its legal services), but also between the EU and the Council of Europe (including the other 20 signatory states to the European Convention on Human Rights) - and the result will probably be an unprecedented case of legal interdependencies between two different supranational regimes.

Creating the European Public Sphere: Some remarks on the European Court of Justice Blog by Allard Knook

Allard Knook is writing a blog in which he summarises European Court of Justice rulings and on which I would like to briefly comment.

I intended to write these comments on his blog, but there the function is deactivated and a contact address is not to be found, either. So I'll comment here.

First, as a representative example, take a look at the latest post on the Court judgement Case C‑558/07, S.P.C.M. and others.

The first thing you will notice is that there is no link to the original judgement, so if you want to read the full text on your own, you have to go to the Court's website and research on your own. [Overlooked the link at the end of the posts; JF]

The second thing is that the introductory clause summarising the judgement is really short while the post is rather long and written in a very juridical style.

So while going through my RSS feeds, I usually go through Allard's posts just reading the first sentence, which always feels very unsatisfactory because I think it would be worth following the ECJ's decisions more closely.

But Allard is apparently writing for a distinct legally interested audience, focussing on "broadcasting" and passive consume of his texts with the comment function deactivated.

This is a pity, because he is doing an important work which could have a much broader effect outside the judicial world.

For comparison, look at this article on the European Court of Human Rights blog and the final paragraphs of the post:

" [...] Although again the Court does not formulate a general right to access to documents, what it does clarify is that once access on the national level is ordered (in this case by a court), such access should be effective and be given within a reasonable time. In this case, the authories had been so obstructive, that the European Court did not shy away from calling their behavior arbitrary.

A case for the history books - and for Court watchers too, of course!"

This puts into understandable words how important/ relevant/ interesting this judgement is in a wider context, and the whole article is rather written with the intention to explain the ruling than to produce a judicial summary.

In fact, the ECJblog would not have to change much. There is no need to change in style if this is what the main audience needs and wants.

But with a slightly longer "citizens' summary" (2-3 sentences) at the beginning, shortly explaining the importance and range of a judgement for the Union as a whole or for a certain policy area (e.g. in comparison to previous judgements), Allard's blog could have enormous effects into the wider European public.

I hope Allard will read these comments - my interest is in raising public awareness for European policy-making and law-shaping, and we should combine sources and resources to come closer to this goal!

Ukraine without ECtHR judge

Through Antoine from the ECHR blog I just learned that Ukraine does not have a judge at the European Court of Human Rights (belonging to the Council of Europe which I covered earlier this week) these days:

"A procedural battle is being waged about the appointment of a new Ukranian Judge at the Court. [...]

The origin was the fact that in 2007 one of the three candidates on the list submitted to Ukraine withdrew. Thusfar, the authorities refused to submit a new third candidate. Instead they have submitted a completely new list, without even justifying such a move with a reference to exceptional circumstances. [...]"

How can it take two years to resolve such an issue when the ECtHR is chronically understaffed and could need every judge it can get...?

Parliamentary Assembly debates next Secretary General of the Council of Europe and celebrates the CoE's 60th anniversary

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Update (29. April 2009)

Parliamentary Assembly rejects shortlisting of only two candidates for the post of Secretary General by the governmental side.
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No, the Council of Europe is not the Council of the European Union, the Council of Europe is an independent international organisation with 47 member states from all over the European continent.

The Council of Europe is a European Union light, it is like the intelligent older brother who was expected to become the pride of the family, but the younger brother studied business, became rich (steel and coal business), was able to buy presents for everyone, and thus became the preferred child of the family. The older brother studied philosophy, he always had more true friends, wrote the better books, new the better answers and was respected among his colleagues and everyone who knew him personally.

This older brother, the Council of Europe celebrates its 60th anniversary this year.

This week, the Parliamentary Assembly of the Council of Europe (PACE) - a body that is similar to the Consultative Assembly, the predecessor of the European Parliament - meets for the second of four annual sessions. Parliamentarians from the 47 member states' parliaments discuss issues of relevance and urgency.

For sure, the anniversary of the Council of Europe plays an important role at this session. In his speech on these last 60 years - a history summarised in this video, Lluís Maria de Puig, the President of the Parliamentary Assembly, summarised the work of the Council of Europe like this:

"The Council of Europe is primarily a moral force. This force is exercised in manifold ways to the same end, through the judgments of the European Court of Human Rights which is celebrating its 50 years of existence this year, the Committee of Ministers representing the governments, the institution of the Commissioner for Human Rights, the Venice Commission and the European Youth Centre to name but a few, and of course through this Assembly which conveys the voice of 800 million Europeans via their elected representatives."

The important topics of this week will be the three urgent debates on

• the situation in Moldova;
  
• the non-ratification of Protocol 14 to the European Convention for Human Rights; and
  
• the election of the next Secretary General of the Council of Europe.
  

For frequent readers of this blog, the reason for the first topic is very clear (see for example here and here).

The second topic is an "old" history, ongoing for four years already: 46 out of 47 member states (and thus signatories to the European Convention for Human Rights (ECHR)) have signed and ratified Protocol 14 to the ECHR, for years already. Only Russia, which has signed it, refuses to ratify this Protocol that would change and ease the working procedures of the European Court of Human Rights, which is overloaded with cases and which needs better and quicker working methods to fulfil its functions. But since Russia would not benefit from more cases (against it) at the European Court for Human Rights, it is blocking the reform that can only enter into force after all 47 members have ratified the Protocol.

The third topic might have been unnoticed by most of you. This year, the Council of Europe will get a new Secretary General. The old one, Terry Davis, is not allowed to be re-elected, and so member states were asked to present candidates.

According to several sources (like this one and this one), there were four candidates (the deadline for submission of proposals was closed in March) of which, after an internal vote (unconfirmed results published here) at diplomatic level last week, only the first two have been shortlisted and will be proposed to the Assembly at its next session in June for a final vote.

The candidates are (and were):

• former Polish Prime Minister Włodzimierz Cimoszewicz;
  
• former Norwegian Prime Minister and President of the Parliament Thorbjorn Jagland;
  
• former Head of the Flanders Government (Belgium) and present president of the Committee of the Regions of the EU, Luc Van den Brande;
  
• Hungarian MP Mátyás Eörsi.
  

According to the final agenda, the debate on the next Secretary General will start on Wednesday at 3 p.m.; the debate on Moldova will follow this agenda item. Protocol 14 will be discussed on Thursday. The full sessions are broadcasted via livestream.

This seems to become an interesting week, which will include speeches by Mrs Tarja Halonen, President of Finland, and Mr José Luis Rodríguez Zapatero, President of the Government of Spain.

So I have a pledge: I know that the Council of Europe is ignored by most and disregarded by some, but the topics it discusses and the range of country it covers, makes it one of the three main European organisations, besides the European Union and the OSCE, and I can only recommend noticing what is going on in its institutions, because the political impact might not always be visible - but in many cases, especially in eastern and south-eastern Europe, and whenever the Court of Human Rights issues a judgement, it plays a central role for the core values of this continent, especially regarding the protection of human rights.

I therefore wish you happy birthday, old brother Council of Europe, and good luck for the future!

(This is the 500th post of this blog. I think it is only consequent to dedicate it to a pan-European organisation older than the European Union, mother of the European flag and the European anthem, reaching out to almost all parts of this continent, and dedicated to the values that guide my personal, political, and professional work: Human rights, democracy, and the rule of law.)

The scope of media freedom in Europe expanded by ECHR and ECJ

Contentandcarrier have analysed two recent judgements of European courts:

• one by the European Court of Human Rights (which belongs to the Council of Europe, is based in Strasbourg, and covers the whole European continent minus Belarus, Kosovo, Holy Sea)
  
• and one from the European Court of Justice (which belongs to the European Union, covers EU institutions and the 27 member states, and is based in Luxembourg)
  

on the role and freedom of media. The conclusions from contentandcarrier are:

"ECJ and ECHR have clearly moved to grant traditional press freedoms not only to traditional media, but also to SMS-information services (and, if implicitely, bloggers!) and NGOs engaged in 'the creation of forums for public debate'."

If these rulings are confirmed in the future and if the courts of the member states apply the rulings properly, this could move forward the role of new media based journalism in the future.

I'd hope that this would be the case!

The European Court of Human rights tests online application in Swedish and Dutch

Interesting experiment in Strasbourg: The European Court of Human Rights is testing an online application procedure in Swedish and Dutch.

It will be interesting to see whether this experiment will work out and whether it will be extended to other countries and languages.

This could then become human-rights-online.int