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Expert on human rights law discusses recent European cases

By Clarissa Sansone

The European Court of Human Rights (ECtHR) has a backlog of 155,000 cases, which means a non-priority case brought before the court wouldn't be heard until 2022. The ECtHR is "sinking under the number of cases that are pending before it," said litigator Nuala Mole at the International Law Worskhop (ILW) presentation she gave October 31.

Nuala MoleMole, founder and director of London's AIRE (Advice on Individual Rights in Europe) Centre, has litigated more than 70 cases, many of them before the ECtHR. Professor Steve Ratner introduced Mole to an audience of 45 as "one of the continent's, and indeed the world's, leading practitioners of international human rights law."

Mole gave some background about the ECtHR and its recent reforms, and discussed current cases dealing with prisoners' voting rights, the question of "jurisdiction" of member states, and the Dublin Regulation (which concerns asylum seekers in the EU) in her talk on "2011's Hot Topics from the European Court of Human Rights."

The reform of the ECtHr, Mole said, has been "an ongoing exercise for more than 10 years." Steps have been taken to reduce and order the court's enormous caseload. "Priority criteria" have been established, whereby cases concerning the welfare of children and individuals deprived of liberty are heard first.

The proposed accession of the European Union to the ECtHR, however, would increase the court's caseload. Although the accession addresses the "great concern…that institutions of the EU were not sufficiently accountable" to cases of human rights, said Mole, "the legal conundra are multiple." Mole admitted, "I don't really think it [the accession] is going to have very much effect."

The EU, which has a Commission, Council of Ministers, European Parliament, and CJEU (Court of Justice of the European Union) is distinct from the Council of Europe—the host institution for the European Convention on Human Rights (ECHR) and the ECtHR.

A recent instance of crossover between EU regulation and ECtHR involvement is the application of the EU's Dublin Regulation, which states that asylum seekers need to apply for asylum in their EU country of entry. The regulation, said Mole, is "predicated on the gross fiction that the system for processing asylum applications is the same in every country" of the EU. This "nonfunctioning of an EU-wide system," said Mole, necessitated the involvement of the ECtHR because it constituted "degrading conditions" for the applicants. In MSS v. Belgium and Greece, the court's Grand Chamber ruled that Greece was in violation of obligations to the ECHR, and Belgium was in violation for sending applicants back to Greece.

The issue of jurisdiction came up in the cases Al-Skeini and others v. the United Kingdom and Al-Jedda v. the United Kingdom, which dealt with Iraqi civilians killed by British officers. The question before the court was whether the individuals involved were within the jurisdiction of the UK. "The answer of the European Court of Human Rights was emphatically yes," said Mole. She explained how the Al-Skeini ruling could impact the outcome of other cases dealing with jurisdiction, namely, that of the inhabitants of the Chagos archipelago (British Indian Ocean Territory), to which Diego Garcia—the island that currently houses a large U.S. military base—belongs.

Mole also discussed cases that have impacted the prisoners' voting rights. In Hirst v. UK, the court ruled that a "blanket ban on voting was disproportionate." Although this was "a binding judgment in international law," said Mole, the UK was slow to comply; in Greens and MT v. UK, the court gave the UK six months to comply to the Hirst ruling. In Frodl v. Austria and Scoppula v. Italy, the ECtHR established that a "logical relation" had to exist between a crime committed and voting disenfranchisement.

Mole answered questions from the audience after her ILW presentation, then spoke to students about careers in human rights law. Nearly 40 MLaw alumni have participated in externships and internships at the AIRE Center.

Watch a video of Nuala Mole's presentation.

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