The Double-Edged ECtHR Lăcătuş Judgment on Criminalisation of Begging

Judgment: European Court of Human Rights, Lăcătuş v Switzerland 14065/15 (ECtHR, 19 January 2021), Judgment (Merits and Just Satisfaction) Section of the Court: Chamber (Third Section) Applicable Convention Rights: Article 8 echr (Right to respect for private and family life) – Violation Primary Legal Issues: Did Switzerland violate Article 8 echr by imposing a fine and subsequent imprisonment for five days for non-payment on a poor and vulnerable Roma woman for unintrusive begging? Link to Case: <http://hudoc.echr.coe.int/eng?i=001-207377>

Climate Change in Court: Overcoming Procedural Hurdles in Transboundary Environmental Cases

Climate change and its consequences will likely be the defining human rights challenge of the 21st Century. The European Court of Human Rights is well-placed to help shape the response to this looming crisis. Indeed, the first four applications concerning climate change have recently been filed before the Court. However, the applicants in these pending cases, as well as potential applicants in any future climate cases, will have to overcome significant procedural hurdles to ensure that the Court will hear their arguments on the merits. This article discusses some of the most significant issues that applicants seeking to bring climate cases will face, which include proving exhaustion of domestic remedies, establishing that the applicants have victim status, and demonstrating that the applicants face a significant disadvantage. This article considers how the Court can ensure that these admissibility hurdles do not preclude climate cases from receiving full consideration on the merits.

Makuchyan and Minasyan v Azerbaijan and Hungary: Novel Questions of State Responsibility, Presidential Pardon, and Due Diligence of Sentencing Transfer Meet in a Rare Case of the Right to Life

Judgment: European Court of Human Rights, Makuchyan and Minasyan v Azerbaijan and Hungary 17247/13 (ECtHR, 26 May 2020) Judgment (Merits and Just Satisfaction). Section of the Court: Chamber (Fourth Section). Applicable Convention Rights: Article 2 echr – violation of procedural obligations by Azerbaijan, no violation of substantive obligations by Azerbaijan, and no violation of procedural obligations by Hungary. Article 14 echr and Article 2 echr – violation by Azerbaijan. Article 38 – no violation by Azerbaijan or Hungary. Primary Legal Issues: Did Azerbaijan acknowledge and adopt the conduct of R.S. in question as its own, and does that violate substantive obligations under Article 2 echr; Did Azerbaijan violate the procedural limb of Article 2 by pardoning and releasing R.S. following his transfer from Hungary to Azerbaijan to serve the prison sentence; Did Hungary violate the procedural limb of Article 2 because of failing to secure specific diplomatic assurances that Azerbaijan will not release R.S. upon his transfer. Link to Case: <http://hudoc.echr.coe.int/eng?i=001-202524>.

The Council of Europe’s Responses to the Decay of the Rule of Law and Human Rights Protections: A Comparative Appraisal

This article introduces the Special Issue on ‘The Responses of the Council of Europe to the Decay of the Rule of Law and Human Rights Protections’. The Council of Europe (CoE), a unique international organisation with its commitment to protect and promote human rights, the rule of law, and democracy, has been severely tested by the spread and consolidation of trends posing systemic threats to its foundational goals. The authors of this Special Issue assess how the European Court of Human Rights, the Venice Commission, the Parliamentary Assembly, the Committee of Ministers, and the office of the Secretary General have addressed systemic threats to the foundational principles of the organisation in the last decade. The Special Issue finds that the respective legal-institutional features and capacities of the CoE organs as well as the constraining influence of the broader political context in Europe on them vary significantly, hampering the CoE’s ability to produce timely, consistent, and co-ordinated responses against systemic threats.

The Venice Commission and Rule of Law Backsliding in Turkey, Poland and Hungary

How did the Council of Europe cope with its member states that engaged in rule of law backsliding? This article analyses the responses of the Venice Commission, the Council of Europe’s expert body on constitutional matters, to Turkey, Hungary, and Poland as their governments eliminated key checks and balances on their power, curtailed judicial independence, and undermined political pluralism and civil society. It finds that the Venice Commission managed to address a set of particularly vital issues that get to the heart to rule of law backsliding in these countries. Despite the breadth of the Venice Commission’s forthright involvement, these case studies display the limitations on the part of other Council of Europe bodies in forming a coordinated approach and response to rule of law backsliding.

The Former Secretary General of the Council of Europe Confronting Russia’s Annexation of the Crimea and Turkey’s State of Emergency

This article investigates the influence of the former Secretary General of the Council of Europe (CoE), Thorbjørn Jagland, on the responses of other CoE bodies to the systemic breaches of the core principles of other CoE bodies to the systemic breaches of the core principles of the CoE in the context of two critical events: Russia’s annexation of the Crimea in 2014 and Turkey’s state of emergency that followed the attempted coup in 2016. Specifically, it examines the influence of the Secretary General’s policy preferences on the Parliamentary Assembly of the CoE and the European Court of Human Rights. The article argues that Jagland’s policy preferences in the context of these two events prioritised political expediency to the detriment of the CoE’s normative mission. The article finds that the Secretary General played a crucial role in facilitating the reversal of the sanctions imposed by the Assembly against Russia and the postponement of the processing of Turkey’s post-coup cases by the Court.

Time for the Gloves to Come Off?

The Parliamentary Assembly of the Council of Europe has limited tools to respond to rule of law backsliding by member states. Sanctions have never been used for this purpose, and the Assembly’s monitoring procedure—the most significant tool of scrutiny—presents a mixed picture. This article focuses on four states exhibiting severe rule of law backsliding: Hungary, which has evaded the procedure; Poland, which was placed under monitoring in 2020; Turkey, which in 2017 became the first state to have monitoring reopened; and Azerbaijan, which has been under monitoring since 2001. Through a first-ever analysis of debates, voting patterns, and tactics used in the Assembly, the article elucidates how proponents and opponents of monitoring have framed their arguments in the battleground of ideas about democracy and the rule of law in Europe. It concludes that the Assembly should fundamentally reappraise monitoring—and the possible use of sanctions—to meet the severity of the challenge.

How Loud Do the Alarm Bells Toll? Execution of ‘Article 18 Judgments’ of the European Court of Human Rights

This article investigates whether Article 18 judgments of the European Court of Human Rights, indicating that the state authorities pursued ulterior and illegitimate motives when violating the Convention, receive the seriousness and the urgency that they call for at the execution phase. By way of an analysis of the responses of the Committee of Ministers and states on the receiving end of Article 18 judgments between 2004 and June 2021, this article finds that the collective responsiveness of the Committee of Ministers to Article 18 judgments has increased over time, especially with respect to individual measures required to implement Article 18 judgments. So far, the responsiveness of individual states to their Article 18 judgments does, however, vary significantly, ranging from taking concrete steps to implement the judgments to outright resistance and no response, posing a significant risk to the Convention system’s ability to respond to the decay of rule of law.