The recent cases of Yoh-Ekale Mwanje v. Belgium and Popov v. France illustrate how a ‘less stringent measures test’ is entering the Court’s reasoning under Art. 5 § 1 ECHR in migration detention cases. The Court appears to be slowly moving away from its deferential approach in Saadi v. The United Kingdom. This might result in the overruling of Saadi by the Grand Chamber in the near future.
Competing Interests in Paternity Cases: Iyilik v. Turkey
Facts
The recent judgment of Iyilik v. Turkey concerns competing interests of an applicant and his (legal) daughter in a paternity case. The wife of the applicant, Mr. Iyilik, had given birth to a daughter in 1966. Mr. Iyilik denied being the biological father and a year later the couple divorced. Mr. Iyilik then brought proceedings to contest his paternity. Blood tests, the only available tests at the time, were taken. The results showed that Mr. Iyilik could be the father, just as any other man with the same blood type could be. The domestic courts consequently denied his request for contestation of paternity. In 2002, Mr. Iyilik submitted a new complaint, requesting reopening of the file and re-examination of his paternity in light of new scientific developments, i.e. the possibility of undergoing a DNA test. In pursuing his new claim, Mr. Iyilik relied on a specific article of the Turkish Civil Procedural Code which allowed for reopening of any civil proceedings if the impossibility to present certain pieces of evidence during the initial proceedings had constituted force majeure. The courts, however, rejected Mr. Iyilik’s request, relying on established jurisprudence of the Turkish Court of Cassation to the effect that the state of scientific progress could not reveal any force majeure.
Strasbourg Court condemns Belgian internment policy
On 6 December 2011, the European Court of Human Rights found the Belgian internment policy to be in breach of the ECHR. The case of De Donder and De Clippel v. Belgium concerned Tom De Clippel, a mentally ill person who had committed suicide while interned in an ordinary prison. Under Belgian law, internment (“internering” / “internement”) is a “safety measure” to protect society against a dangerous mentally ill individual who was committed a serious offence, but who is not considered to be criminally liable due to his or her mental illness.
According to the Court, the authorities should have been aware that there was a real risk that Tom De Clippel, as a paranoid schizophrenic, might attempt to commit suicide while detained in an ordinary prison environment. The Court found a substantive violation of Art. 2 ECHR (the right to life) on the ground that Tom De Clippel should never have been held in the ordinary section of a prison. Read more…
The Strasbourg Court and the Arab Spring
International politics are never far away in cases dealing with the extradition of individuals to third countries. In the case of Al Hanchi v. Bosnia and Herzegovina the European Court of Human Rights was confronted with an extradition of a so-called foreign mujahedin to Tunisia. Until now, the Court had a clear stance. The deportation of individuals with such a profile to Tunisia entails a risk of ill-treatment. (see e.g. Saadi v. Italy) In the aftermath of the Arab Spring the Court is however reconsidering this position. Read more…
French Roma policy violates European Social Charter
In a decision of 28 June (COHRE v. France, no. 63/2010), which was only recently made public, the European Committee of Social Rights has found the French zero tolerance policy towards East European Roma living in illegal camps to be in violation of the European Social Charter. The case, which was lodged by the NGO Centre on Housing Rights and Evictions (COHRE), concerns the eviction and expulsion measures announced by French president Sarkozy in the summer of 2010. Hundreds of illegal camps were dismantled and thousands of Roma were expelled to Romania and Bulgaria. Most expulsions took place on a “voluntary” basis, in exchange for the payment of 300 euro per adult and 100 euro per child. Read more…
This guest post is co-authored by Rónán Ó Fathaigh and Chris Wiersma, two colleagues from the Human Rights Centre. More information on Rónán and Chris can be found on the website of the Center for Journalism Studies of Ghent University, here
In its recent Akçam v. Turkey judgment, the Second Section of the European Court was again called upon to consider the controversial Article 301 in Turkey which criminalises “denigration of the Turkish Nation”. The Court unanimously concluded that the law was overbroad and vague, resulting in a violation of Article 10 of the European Convention.
The law was previously considered in Dink v. Turkey (see an excellent post by Lourdes), where the Second Section had held it was unnecessary to decide the issue of overbreadth. The law has been subject to much criticism, in particular relating to its application to persons expressing opinions on Ottoman Empire policy towards Armenians in 1915 being genocide. Read more…
Toward an Anti-Stereotyping Approach for the ECtHR
As part of our joint research project I have written an article on gender stereotyping and the ways this could be addressed by the European Court of Human Rights in its case law.
Now I’m not sure whether flagging my own research is correct blog-etiquette, but I will take this opportunity to let you know that my article has just been published by the Human Rights Law Review and share the link with you. The full reference is Alexandra Timmer, ‘Toward an Anti-Stereotyping Approach for the European Court of Human Rights’, 11 Human Rights Law Review (2011), p. 707-738.
Here is a direct link to my article.
Comments are most welcome, either here on the blog or via email!
Here is the abstract:
The central tenet of this article is that stereotypes are both cause and manifestation of the structural disadvantage and discrimination of certain groups of people. Focusing on the gender case law of the European Court of Human Rights, this article explores what conception of equality the Court should embrace to adequately address the harmfulness of stereotypes. Since stereotypes are often the mechanisms that underlie discrimination, this article advances an anti-stereotyping approach that the Court could employ in its rulings. The proposed analysis consists of two phases: ‘naming’ and ‘contesting’ stereotypes. The whole argument is illustrated by Konstantin Markin v Russia and Rantsev v Cyprus and Russia, two recent cases in the area of gender equality.
Deference or Substantive Resolution? The ECJ’s Brüstle Judgment on the Use of Human Embryos for Scientific Research
This post was co-authored by Wannes Van Hoof* and Stijn Smet.
Recently, the European Court of Justice (ECJ) was asked to deliver a preliminary ruling on the use of human embryos for scientific research. The case concerned an application by Greenpeace, seeking annulment from the German courts of a patent held by Mr. Brüstle. The patent had been obtained by Mr. Brüstle in 1997 and relates to the isolation and purification of neural precursor cells, processes for their production from embryonic stem cells and their use for the treatment of neural defects. The patent had already led to the development of clinical applications, in particular for patients suffering from Parkinson’s disease. Greenpeace took issue with the patent and demanded its annulment in court, because the process involves the use and destruction of human embryos.
In this post, Wannes Van Hoof, a colleague from the Bioethics Institute Ghent, and Stijn Smet will take a look at the ruling of the ECJ, both from an ethical and a legal perspective. In doing so, we will address issues that also confront the European Court of Human Rights in cases involving ethical and moral dilemmas, such as the question on the role of subsidiarity and deference on the one hand and a need for more substantive guidance by international courts in these matters on the other.
Court condemns forced sterilization of Roma woman
This post is co-authored by Lourdes Peroni and Alexandra Timmer
The Court has recently ruled in V.C. v. Slovakia, a case brought by a Roma woman who complained that she was sterilized without her informed consent. The judgment is no doubt a landmark decision with crucial implications for women belonging to minority ethnic groups. In this post, we argue the Court’s reasoning is spot on in several respects and outline the reasons why.
Outline of the judgment
The applicant’s forced sterilization was in violation of Article 3 (prohibition of inhuman and degrading treatment) and Article 8 (respect for private and family life). The Court condemns the Slovakian government in strong terms. Read more…
S.H. and Others v Austria: margin of appreciation and IVF
In Austria, it is forbidden to use donated sperm or ova for in vitro fertilization (‘IVF’). Ovum donation is under all circumstances prohibited; sperm donation is only possible when the sperm is directly placed in the womb of a woman (in vivo artificial insemination). Two Austrian couples complained about this regulation; the first couple needs IVF treatment with use of donor sperm and the other couple needs IVF with use of a donor ovum to fulfill their wish for a child of which at least one of them is the genetic parent. In 2010, the First Section held in S.H. and Others v. Austria that the Austrian regulation violated Article 14 in conjunction with Article 8 of the Convention, with a vote of 6-1 regarding the first couple and 5-2 vote regarding the second couple. Stijn and I have both blogged about that Chamber judgment (see here and here).
The Grand Chamber reversed that judgment a few days ago. With a vote of 13 to 4, the Grand Chamber concludes that the restrictive Austrian assisted reproduction regulation is not contrary to the Convention. Quite frankly, I have difficulties writing this post. The case raises very complex issues, situated as it is within a highly contentious debate about the way the Court should adjudicate culturally or ethically sensitive issues. Recently, the Court has had to endure a barrage of critique for what is perceived as its usurpation of power from the Contracting States. The majority of the Grand Chamber goes to great lengths in this case to appease its critics and appear respectful of State sovereignty: ‘the Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating matters of artificial procreation’ (par 92). And: ‘The Court considers that concerns based on moral considerations or on social acceptability must be taken seriously in a sensitive domain like artificial procreation’ (par. 100). The stakes are high; a lot of pressure is put on the Court. In its third-party intervention, the Italian Government practically announces the apocalypse if ovum donation were allowed: ‘to call maternal filiation into question by splitting motherhood would lead to a weakening of the entire structure of society’ (par 73).
It is impossible to navigate this debate and discuss all the facets of the case satisfactorily in a blog post. I will limit my discussion to the Court’s use of the margin of appreciation- and consensus-arguments, and Austria’s reasons in support of its restrictive legislation as regards assisted reproduction. Read more…
Trafficking in Persons and the European Court of Human Rights
This guest post was written by Dr. Roberta Avellino. Dr. Avellino studied Law at the University of Malta where she graduated as Doctor of Laws. She has moreover obtained a Master of Laws in International Law following research on trafficking in persons, security governance and State responsibility. She has recently published an article on the subject entitled ‘Trafficking in Persons: A Contemporary Threat to Human Dignity’ (please note that the file takes a while to open) in the first issue of a new law journal, the ELSA Malta Law Review. We are thankful to Dr. Avellino for her contribution to our blog and wish the European Law Students’ Association Malta all the best with their newly founded journal!
The European Convention on Human Rights makes no direct reference to the modern crime of trafficking in persons. However, Article 4 prohibits slavery, servitude and forced labour. But how should the parameters of servitude and the prohibition thereof be delineated? Is trafficking in persons included within the considerations of the Convention? The European Court of Human Rights (ECtHR) has attempted to clarify this issue through the case of Siliadin v France[1] and held that a number of international human rights treaties aimed at protecting human beings from slavery, servitude and forced or compulsory labour. In referring to the Parliamentary Assembly of the Council of Europe, the Court also officially recognized the unfortunate truth of modern day slavery despite the abolishment of this practice more than 150 years ago.[2]
On the 7th of January 2010, the European Court of Human Rights delivered what has been considered ‘a historic first judgment concerning cross border human trafficking in Europe’[3] in Rantsev v Cyprus and Russia[4] and unanimously found that trafficking in persons falls within the parameters of Article 4 of the Convention.
Ambit and Scope of Article 8 in Citizenship Cases
In a recent judgment in the case of Genovese v. Malta the Court gave very few words when determining the scope and ambit of Article 8. The Court managed to exclude a right, find no violation and determine the scope in the same sentence, and, in contrary to previous citizenship cases, did not give one word more to justify its decision. Read more…
Bah v UK: on immigration, discrimination and worrisome reasoning
This post was co-authored by Lourdes Peroni and Alexandra Timmer
The Court recently ruled on the case of Ms. Bah, a Sierra Leonean woman with indefinite leave to remain in the UK, who asserted that she was discriminated against in the allocation of social housing. The Court’s reasoning in Bah v. UK gives ample food for thought. We find two aspects of the Court’s reasoning especially worrisome: the Court’s explicit references to the need of a ‘comparator’ and the Court’s use of the ‘immutability-criterion’. Though these are familiar concepts within discrimination law, the Court has thankfully largely steered clear of them through the years. With this post we question the Court’s present recourse to these concepts. The comparator-approach and the immutability-criterion are potentially harmful and, moreover, we are of the opinion that the Court could have reached the same decision without relying so heavily on these concepts. Read more…
Karttunen v. Finland: Child Pornography and Freedom of Expression
Today’s guest post was written by Rónán Ó Fathaigh, one of our colleagues at the Human Rights Centre. More information on Rónán can be found on the website of the Center for Journalism Studies of Ghent University, here.
In a recent admissibility decision which has received scant attention, the European Court considered for the first time the vexed question of the criminalisation of child pornography and its compatibility with freedom of expression. The issue before the Court was whether the conviction of an artist for including child pornography in an art exhibition violated the right to freedom of expression under Article 10 of the European Convention. Read more…
The right to bury one’s relatives
In a recent judgement in the case of Girard v. France (in French) the Court recognized a new right under Article 8 – the right to bury one’s relatives. This case involved three aspects of dealing with an individual’s remains under the Convention: returning the body to relatives, organizing and attending a funeral, and treatment of samples taken from the body for investigation purposes. The Court had dealt with these issues separately before. The outcome was different when the issues got mixed. Read more…
Stummer v. Austria: gradually moving towards a right to an old-age pension for working prisoners?
By Ingrid Leijten.
Ingrid Leijten works as a Ph.D. fellow and teaching assistant at the Leiden University Faculty of Law, Department of Constitutional and Administrative Law. Her research interest lies in the development of the ECHR and the practice of the ECtHR in relation to the Member States’ policymaking.
Stummer v. Austria deals with the affiliation of prisoners to an old-age pension system. After the application was declared admissible, jurisdiction was relinquished in favour of the Grand Chamber (Art. 30 ECHR). The case indeed raises serious questions affecting the interpretation of the Convention. The Grand Chamber’s response to these questions is interesting, and worth reflecting upon. Read more…
A Poll on Palomo Sánchez
We are pleased to be organising our first poll to ask our readers about their opinion!
The poll concerns the recent judgment of Palomo Sánchez v. Spain in which the Grand Chamber of the Court ruled that the Spanish courts had not failed their positive obligation to protect the freedom of expression of four employees who were dismissed by their employer for having insulted two of their co-workers and a member of management. The employees, who were also executive members of a trade union they had set up, were dismissed after they had published two articles and a cartoon in the union newsletter, severely criticising management and specifically denouncing two of their co-workers for having testified in favour of the company in proceedings the applicants had brought against it in the context of a social dispute. In its judgment the Grand Chamber held in particular that, due to their offensive and insulting character, the cartoon and articles overstepped the bounds of acceptable criticism of private individuals under article 10 ECHR. The Court held that the sanction of dismissal was not disproportionate and that article 10, read in the light of article 11, had not been violated.
Considering the crucial importance of Palomo Sánchez for trade union freedom of expression we are curious about the opinion of our readers on one particularly controversial aspect of the case and the judgment: the cartoon and its assessment by the Court.
Participate in our poll and find out what the other voters thought of it! Should you wish to clarify your response, do not hesitate to use the comment section below the post.
Translation from left to right (by Spanish native speaker): “Slurp, slurp, is everything going well, Mr. Garcia?”; “I already told you that you were FREED as long as you kept me well-served … SERVED!”; “Listen, this one has jumped the queue!”; “Shut up … or the “sucking” up will otherwise be over for us”.
When is Family Life Family Life? A Look at Deportation Cases
In A.A. v. the United Kingdom, a recent case involving the deportation of a young Nigerian man, the Court faced, once again, the question whether relationships between adult children and parents/siblings amount to family life in deportation cases. The Court’s Fourth Section did not give a clear answer to this question. The 24-year-old applicant resided with his mother and did not have children of his own.
In this post, I take a quick look at the Fourth Section’s reasoning on this issue and try to situate it in the wider context of the Court’s deportation case law. One word of caution: this is an attempt to briefly look at one specific question the Court asks to decide whether the deportation has interfered with an applicant’s right to respect for her family life. Do the ties invoked by the applicant constitute family life within the meaning of Article 8 § 1? To be more specific, do relationships between adult children and parents/siblings amount to family life in deportation cases? Read more…
Blood Donations and the Permanent Exclusion of “Men Who Have Sex with Men”
In Belgium, as in many other European countries, homosexual men are not allowed to donate blood. To be more precise, not homosexual men are permanently excluded from donating blood, but “men who have sex with men”. “What’s in a name?”, you might ask. That is what I intend to find out in this post.
Reasonable arguments are invoked on each side of the blood donation debate: a concern for public health on one side and a struggle against stereotyping and discrimination on the other. But who is in the right here? Who has the law, and more particularly European human rights law, on its side? In this post I will attempt to offer a possible answer to these questions through the lens of the case-law of the European Court of Human Rights. Obviously, the Court not having ruled on this issue, what follows is based on my interpretation of the Court’s discrimination case-law, combined with ideas on how a homosexual applicant may argue a hypothetical case in front of it.
Grand Chamber Judgment on Trade Union Freedom of Expression
This post is written by Rónán Ó Fathaigh* and Dirk Voorhoof**
The Grand Chamber of the European Court issued a landmark judgment this week on trade union freedom of expression, concluding that the dismissal of trade union members for engaging in offensive and insulting expression in a union newsletter was not a violation of the right to freedom of expression, read in light of freedom of association.
Inter-American Commission praises ECtHR in a landmark decision on domestic violence
The Inter-American Commission on Human Rights released its keenly anticipated merits report in the case of Jessica Lenahan (Gonzales) v United States a few weeks ago. This was the first time a domestic violence survivor filed an international legal claim against the U.S.[1] The case has been extensively commented on elsewhere (see for example this article in the Harvard Human Rights Journal and this post on IntLawGrrls), so my aim with this post is just to flag the decision and note the extensive references to the case law of the European Court of Human Rights therein.
The facts of the case are horrifying. Read more…
Mainstreaming the Human Rights of Older Persons
After a long time of neglect, there is an increasing awareness and recognition of the human rights of older persons within the international human rights community. Several stakeholders have issued a call for a ‘UN Convention on the Rights of Older Persons’. In a recent article in the Human Rights Law Review, entitled ‘The Human Rights of Older Persons: A Growing Challenge’, Frédéric Mégret does an excellent job assessing these developments. Mégret shows that the rights of older persons should be approached through a human rights framework and that this is an issue which human rights lawyers cannot afford to ignore any longer.
So far, the European Court of Human Rights has not exactly produced a rich case law on the human rights of older persons. Perhaps this is not surprising, given that the European Convention and its Protocols are silent on the issue of rights for the elderly (in contrast to the European Social Charter (see article 23) and the Charter on Fundamental Rights of the European Union (article 21 and 25)). However, this might be changing. There is definitely potential in the Court’s legal analysis to mainstream the rights of older persons. This blog post focuses on that potential through the lens of two cases that were handed down in July: Heinisch v. Germany and Georgel and Georgeta Stoicescu v. Romania. Read more…
Break in August
Dear Readers,
The Court is going on recess in August and so are we until the end of the month. We wish you all a nice summer and look forward to being back soon with more comments on the European Court’s latest developments.
The Strasbourg Observers
Recognizing the right to conscientious objection – Part II – coherence of human rights
An interaction can be observed regarding the recognition of the right to conscientious objection in three international human rights systems– the UN, European and Inter-American. Read more…
In the Grand Chamber judgment in the case of Bayatyan v. Armenia the Court recognized a right to conscientious objection under Article 9. The first step in doing so was to correct a mistake started by the European Commission of Human Rights (Commission) regarding the interpretation of Article 9 in conjunction with Article 4. Read more…
Today’s guest post was written by Rónán Ó Fathaigh, one of our colleagues at the Human Rights Centre. More information on Rónán can be found on the website of the Center for Journalism Studies of Ghent University, here.
Following the Mosley v. the United Kingdom judgment delivered by the Fourth Section of the European Court some time ago, it would seem appropriate to highlight a very surprising judgment delivered by the Third Section recently which held that there had been a violation of Article 8 where the Romanian courts had acquitted a broadcaster in criminal defamation and insult proceedings concerning statements made in a press release.
Immigration was a challenge in the past, is still a challenge now and will probably remain a challenge in the future for policy makers as well as for judges. Especially when it comes to public services for individuals staying irregularly in a country, this issue becomes more difficult. Can the regular or irregular stay of an individual in a country justify a differential treatment in access to basic services such as health care and education? In Bulgaria, individuals who do not have a permanent residence permit have to pay a school fee while Bulgarian citizens and individuals having such a permit enjoy education free of charge. This was the issue the European Court of Human Rights was confronted with in the recent case of Anatoliy Ponomaryov and Vitaliy Ponomaryov v. Bulgaria. Read more…
Last week, the European Court ruled against France in a case concerning a tax demand claimed from the Jehovah’s Witnesses. The amount: over 57.5 million Euros. In Association Les Témoins de Jéhovah c. France, the Court focuses on the impact of the taxation on the association’s main source of funding – and on its subsequent ability to assure its members the free exercise of religion – as well as on the lack of precision of the law under which the association was taxed. In the background of the case, there are however various elements worth keeping in mind if one wants to get a fuller sense of the case and the issues ultimately at stake. Read more…
Schmitz v. Germany and Mork v. Germany: Applause for the German Constitutional Court—Does ‘Dialogue’ Solve it All?
This guest post was written by Ingrid Leijten who works as a Ph.D. fellow and teaching assistant at the Leiden University Faculty of Law, Department of Constitutional and Administrative Law. Her main research interest lies in the development of the ECHR and the practice of the ECtHR in relation to the Member States’ policymaking.
Recently, the Fifth Section of the Court held in the cases of Schmitz v. Germany and Mork v. Germany that the (possibly) infinite preventive detention the claimants were exposed to did not violate Article 5§1 of the Convention. What makes the decisions worth mentioning though, is the role accorded to the judgment of the Bundesverfassungsgericht (German Constitutional Court; BVerfG) of 4 May 2011—and thereby the exemplar of ‘dialogue between Strasbourg and national courts’ these cases might turn into.
Khodorkovskiy in a cage
In the case of Khodorkovskiy v. Russia the Court reaffirmed that placing a person in a cage during a trial if the person is not predisposed to violence or there are no serious security threats, is degrading and violates Article 3.
The Court noted that the practice of placing a criminal defendant in a sort of a “special compartment” in a court room existed and probably continues to exist in several European countries (Armenia, Moldova, Finland). In some countries (such as Spain, Italy, France or Germany) the accused are sometimes placed in a glass cage during the hearing. Such a practice has occasionally been examined in the context of the guarantee of the presumption of innocence under Article 6 § 2 of the Convention (see Auguste v. France, Meerbrey v. Germany). In recent years the Court has begun to examine the practice also from the standpoint of Article 3 of the Convention. Thus, in the case of Sarban v. Moldova the applicant was brought to court in handcuffs and held in a cage during the hearings, even though he was under guard and was wearing a surgical collar. A violation of Article 3 of the Convention was found in a case where the applicant was unjustifiably handcuffed during public hearings (see Gorodnichev v. Russia). Handcuffing of the applicant gave rise to a violation of Article 3 of the Convention also in a situation where no serious risks to security could be proved to exist (see Henaf v. France, Istratii and Others v. Moldova).
I was wondering whether the experience of a person when put in the cage is of such a degrading nature to be considered under Article 3? Read more…
Khodorkovskiy v. Russia: European Court of Human Rights Rules “No Proof of Political Trial”
A few weeks ago the European Court of Human Rights delivered its judgment in the high profile case of Khodorkovskiy v. Russia. Mr. Khodorkovskiy, as I assume most readers are aware, was until recently one of the richest persons in Russia and the major shareholder in one of Russia’s formerly largest oil companies (Yukos). He is of course most well known for his criminal prosecution and detention by the Russian authorities in 2003 on suspicion of theft and money laundering, ultimately leading to his conviction in 2005. Mr. Khodorkovskiy has always maintained that the trial against him was politically motivated and orchestrated to silence his political involvement which commenced in 2002. In addition to financing opposition political parties, he had openly criticised Russian internal policy at the time, calling it anti-democratic. Many find Mr. Khodorkovskiy’s allegations reliable and at the very least question the true motivation behind his repeated convictions. Earlier this year, following the extension of Mr. Khodorkovskiy’s conviction with a further 7 years in December of last year, the Guardian reported that an insider of the Russian judiciary, the assistant of the Judge who had ruled on the extension of Mr. Khodorkovskiy’s prison sentence, confirmed the claims that the verdict was “ordered from above”. She stated in particular that “all of legal society understands perfectly well that this is a made-to-order case, a made-to-order trial.”
Among other articles, before the European Court of Human Rights Mr. Khodorkovskiy relied on the rarely invoked – and even more seldomly granted – article 18 of the European Convention on Human Rights, alleging that Russia had used criminal prosecutions for a political end and in order to appropriate the company’s assets. The ECtHR found no violation of article 18.
Together with Lourdes and Stijn, I’ve just attended the Grand Chamber hearing in the case of Konstantin Markin v. Russia. We’ve blogged about this case here and here. Just to refresh your memory: the case concerns a military serviceman, Konstantin Markin, who was divorced from his wife and who had custody of their three young children. He applied for three years parental leave, but his request was denied because only female military personnel are allowed parental leave of such duration. The issue in Strasbourg is whether this difference in treatment is allowed because sufficient justifications exist for it, or whether it violates article 14 of the Convention in conjunction with article 8 (the non-discrimination provision in combination with the right to private/family life).
Our research team has taken a keen interest in this case. We – in the form of the Human Rights Centre of Ghent University – have submitted a third party intervention to the Court in this case. Our submission focused on the issue of gender stereotyping and how that is addressed by other instruments of international law. We were expressly asked by the President of the Court not to address the facts or the merits of the case, so our comments had to be of a quite general nature.
Now some first impressions of the hearing. Read more…
R.R. v. Poland: health rights under Art. 8 ECHR
By Laurens Lavrysen*
As Alexandra correctly noted in her post, R.R. v. Poland is a very interesting judgment. The focus of this post will lie on the general health rights implications of this judgment, which exceed the specific context of reproductive health.
In the case of Tysiąc v. Poland (ECtHR 20 March 2007) the Court stated that “once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it.” The Court ruled that Poland had violated Art. 8 ECHR because there was no procedure to establish whether Mrs. Tysiąc could have access to a legal abortion on health grounds. She had a severe sight disability and there were serious reasons to believe that her sight would decrease even more if she were to give birth. As she was denied access to an abortion, she eventually became almost blind.
The case of R.R. is quite comparable: the applicant is a woman who had a right to have an abortion under domestic law (on the ground that her fetus was severely malformed) but she was prevented effective access to this right (because the Polish doctors and hospitals she contacted deliberately refused to do a conclusive genetic test before the legal time limit).
The Court has released an important judgment in the area of reproductive health, R.R. v. Poland. It is also a very interesting judgment, as it raises a complex set of issues connected to different fields of law. Our team had a lively debate about this case yesterday. It became clear that there are various ways of looking at the Court’s reasoning: gender, health rights and freedom of religion are all perspectives that can be brought to bear on this case. With this post I would like to put my first thoughts on paper. The focus will be on the Court’s reasoning under Article 3 (prohibition of inhuman or degrading treatment).
Facts
The facts of R.R. v. Poland make for sad reading. Read more…
“Living Together” and Diversity in Europe
The Council of Europe recently released a report on diversity in Europe, entitled “Living together: Combining diversity and freedom in 21st-century Europe”, drawn up by the ‘Group of Eminent Persons of the Council of Europe’. The report aims to negotiate “the challenges arising from the resurgence of intolerance and discrimination in Europe”. It “assesses the seriousness of the risks, identifies their sources and makes a series of proposals for “living together” in open European societies”. The findings and recommendations are based “firmly on the principles of the European Convention on Human Rights, especially individual freedom and equality before the law.” What makes this report particularly interesting is the impressive list of persons that have worked on it. Among the drafters are not only academics from some of the most reputable universities in Europe, but also former high level politicians, including Emma Bonino, Javier Solana and Joschka Fischer.
Guest post by Rónán Ó Fathaigh, PhD candidate at Ghent University. For more information on Rónán, find him here.
This week the Fourth Section of the European Court delivered its much anticipated judgment in Mosley v. the United Kingdom, which unanimously held that the absence of a prior-notification requirement on newspapers to give advance notice to a person before publishing private details does not violate Article 8.
The applicant in Mosley had successfully brought legal proceedings against a British newspaper for invasion of privacy over a series of articles which detailed the applicant’s sexual encounter with a number of prostitutes. It was also alleged that the applicant had engaged in Nazi role play during the sexual encounter. The articles had been based on a clandestine recording, and the video was made available on the newspaper’s website. The domestic courts found that there had been no Nazi element to the sexual activities, and held there had been a violation of the applicant’s right to privacy, awarding £60,000 in damages.
Having been successful in the domestic proceedings, the applicant took the unusual step of making an application to the European Court. The applicant argued that the award of damages was not an adequate remedy for a violation of privacy, and that the only effective remedy would have been an injunction to prevent publication. It was argued that the failure of the United Kingdom to impose a legal duty upon newspapers to give prior-notification to a person before publishing private details was a violation of its positive obligations under Article 8. It was argued that such a duty would provide a person with the opportunity to seek an injunction to prevent publication.
How significant is the ‘significant disadvantage” of the new admissibility criterion (Part II)?
It has been claimed[1] and it is also my understanding that human rights protect important aspects of a human life. The views on what are the important aspects may vary. The drafters of the Universal Declaration of Human Rights put in their views; inspired by the rights in the Declaration, the European Convention was composed, and States made an agreement that those are the aspects that should be protected by legally binding human rights. And finally, the Court does its job to interpret the rights and thus we find spheres in each right that are protected by the respective right. These spheres are often determined as rights within the existing broader rights of the Convention. Does the Court think about the general importance of the spheres in human life when developing the scope of rights? To my mind, it could be at least stronger on applying the importance criterion. Let’s take a look at a recent case decided by the Court – Golemanova v. Bulgaria. Read more…
How significant is the ‘significant disadvantage’ of the new admissibility criterion (Part I)?
In its decisions in the cases of Holub v. the Czech Republic and Bratři Zátkové, a.s. v. the Czech Republic the Court has unanimously declared the applications inadmissible. The Court used the new admissibility criterion to determine that. Read more…
As part of our research project I have written a paper on the conflict between freedom of expression and the right to reputation in the defamation case law of the European Court of Human Rights. The paper, based on an analysis of over 120 judgments and entitled “Freedom of Expression and the Right to Reputation: Human Rights in Conflict”, has now been published in the American University International Law Review, Vol. 26, No. 1, 183-236.
The article is available on the website of the journal. It’s free of charge, so if you are interested, get it while it’s hot! Direct link: here.
Comments on the article, below this post or via e-mail, are more than welcome!
The abstract:
Ever since the European Court of Human Rights has recognised the existence of a right to protection of reputation under the European Convention on Human Rights, a conflict between Convention rights arises in defamation cases. In such situations of conflict between human rights, their indivisibility requires that both rights carry a priori equal weight. Yet, the research conducted for this article indicates that the Court engages in preferential framing and incomplete reasoning when attempting to resolve the conflict between freedom of expression and the right to reputation in its defamation case law. In order to pre-empt such preferential framing and to improve the reasoning of the Court, the article proposes a theoretical model for the resolution of conflicts between human rights. The defamation jurisprudence of the Court is critically analysed through the lens of this model. The article demonstrates how the model might prove to be a useful tool to improve the legal reasoning of the Court in defamation cases.
Belgium votes ‘burqa’ ban
Today, the Belgian Chamber of Representatives voted a ‘burqa ban’. It did the same thing a year ago, but the unexpected fall of the government prevented the law from entering into force then, as the bill had been evoked by the Senate. This time, it is for real.
The text introduces in the criminal code a new provision, article 563bis, creating a new offence:
“Will be punished with a fine of 15 to 25 Euro and/or detention of 1 to 7 days, those who, except for contrary legal provisions, are present in places that are accessible to the public with their faces completely or partially covered or hidden, such as not to be recognizable.”
Exceptions are added for workplace regulations and police regulations regarding festivities.
The fines in the criminal code currently have to be multiplied by a factor that is currently 5,5, hence the maximum fine is 137,5 Euro.
I am a member of the Belgian Chamber of Representatives and the only Deputy (out of 150) to vote against the bill (2 Deputies abstained).
While for all government-initiated bills the advice of the legislative section of the Council of State (regarding amongst others the conformity with the Constitution and international law) is mandatory, this is optional for bills tabled by members of parliament; the request for a referral to the Council of State was rejected by all but one parliamentary group (note: in France, the Council of State issued a very critical advice on the ‘burqa ban’)
Similarly, a request by Amnesty International and two women’s rights organizations to organize hearings with civil society, obtained the support of only one group.
It is to be expected that the law will be challenged before Belgium’s Constitutional Court.
For an analysis of the ban from an ECHR perspective, see the previous post “Would a Niqab and Burqa ban pass the Strasbourg test?” written by my research team members Lourdes, Stijn and Saïla.
Happy anniversary!
Dear blog visitor,
This month, it is a year ago that the blog gave birth to its first posts. 102 posts later, here we are! When we started this blog, we could only dream of the current results. 32,407 views in 2010 and already 22,504 for the first part of 2011. While in 2010 we reached an average of 128 views a day, in 2011 this average increased to 194 and we hope that our readership continues to grow!
On behalf of our team, we warmly thank you for your interest in our blog. You supported us and encouraged us to be creative. We also want to thank all the guest bloggers who contributed to the blog; your expertise and enthusiasm was not only appreciated by us, but also by the readers. Also thanks to the commentators; your critical reflections are essential to keep the debate alive.
Please join us for a second year of blogging!
The Strasbourg Observers
The famous American feminist legal theorist Catherine MacKinnon argued that pornography is an act of subordination. In Only Words, she notes: “Social inequality is substantially created and enforced – that is, done – through words and images. . . Elevation and denigration are all accomplished through meaningful symbols and communicative acts in which saying it is doing it.” (p. 13)
It is this sort of insight that was crucially lacking in the recent hearing before the Grand Chamber in the case of Aksu v. Turkey. The hearings are online. I’ve blogged about this case before; here and here. Briefly, the case concerns a State-sponsored dictionary and book that contain derogatory stereotypes of Roma. The dictionary contains entries that define “Gypsy” as “(metaphorically) stingy” and the book contains passages that portray Roma as thieves, beggars and prostitutes.
The reason why we should care about Aksu is because words and images are not neutral and harmless vessels of expression, they do something. As MacKinnon says, words and images create and enforce social inequality. As might be expected, the representative of the Turkish state denied this completely. He referred to the entries in the dictionary as “sterile quotations from the language and literature” Read more…
By Laurens Lavrysen*
In the recent case of Rahimi v. Greece, the European Court of Human Rights had to rule over the detention and the lack of care of a 15 year old Afghan unaccompanied minor. At arrival in Greece, he was placed in detention for two days, after which he was abandoned to live on the streets.
Despite the short duration of the detention, the Court found a violation of Art. 3 ECHR because of the dreadful detention circumstances and because of the applicant’s extremely vulnerable situation. In line with the recent Grand Chamber judgment of M.S.S. v. Belgium and Greece, the Court also concluded that the negligence of the Greek authorities to take adequate care of the applicant – the Court particularly emphasized the lack of action to provide him with a guardian – also amounted to a violation of Art. 3 ECHR. Read more…
What are the implications of the recent landmark judgment in Lautsi for minority religious symbols in state school classrooms? At first sight, the Court seems to adopt a more open approach towards the presence of religious symbols in the school environment. On closer examination, however, this may not necessarily be the case. This post briefly speculates on the Court’s answers in two post-Lautsi imaginary scenarios: What would happen in a case filed by a state school teacher wearing a headscarf against a Member State that bans it? What might be the Court’s response to a parent’s complaint against a Member State that allows teachers to wear the headscarf in state schools? Read more…
Lautsi v. Italy: the Argument from Neutrality
Lautsi v. Italy was destined to achieve legendary status in the ECtHR’s case law. In fact, it became the stuff of legends long before the Grand Chamber’s judgment came out. Rarely has a judgment of a supranational court put such a spell on people. Rarely has it inspired such passionate comments and speculation even before it was released. Rarely have so many people looked forward to a judgment with such anxious anticipation. But why? What is it about the issues involved in this case that causes it to speak so strongly to the hearts and minds of so many? It is a question I have been asking myself for a while now, while reflecting on the tension between freedom of and freedom from religion in the Court’s case law. And the question is haunting me now more than ever, having read the Lautsi judgment and the comments in the blogosphere thereon and preparing a post of my own. I have not been able to come up with a satisfactory answer to the question. At least not satisfactory to a legal mind. My personal preoccupation with Lautsi seems to stem from a strong conviction that neutrality requires that the state should not hang crucifixes on the walls in public schools. I will attempt to explain my opinion in this post. But I will also explain why this is perhaps not an issue to be decided by a human rights court.
Kiyutin v. Russia: landmark case concerning the human rights of people living with HIV
Recently, the Court came down with a judgment that strongly condemns the stigmatization of people living with HIV. Kiyutin v. Russia is, as far as I was able to ascertain, the first case in which the Court rules on the merits of a claim of discrimination on the ground of a person’s HIV-positive status. Straight away, the Court has chosen to become a leader in the battle against stigma and discrimination of people with HIV. Read more…
Aydin v. Germany or the Strasbourg Court’s faint reasoning in a case of political dissent
Today’s guest post was written by Hannes Cannie, PhD candidate at the Human Rights Centre of Ghent University. Further information on Hannes, including a list of his publications, can be found here.
In Aydin v. Germany (27 January 2011) the Fifth Section of the Strasbourg Court held with six votes to one that the applicant’s criminal conviction for lending support to an illegal organisation constituted no violation of Article 10 ECHR. Although the conviction itself for various acts that are interpreted as contravening a ban on the PKK’s activities may seem reasonable, I find that the Court, as it does not pay much attention to the freedom of expression perspective, misses a chance to shed light on the controversial speech issue in this case.
But first things first, what is this case about? In1993 the German Interior Ministry issued a decision by which it imposed a ban on the activities of the PKK within the German territory, contravention of which is punishable under the German Law on Associations (section 20 §1 no. 4). In the context of a large-scale campaign launched by the PKK’s presidential counsel in 2001, the applicant, as did many others, signed a declaration firmly condemning this ban and asking attention for the Kurdish question, which is “a European problem waiting for a solution”.
Mgn Limited v. the United Kingdom concerned several articles published in 2001 in the tabloid Mirror (now Daily Mirror), revealing that supermodel Naomi Campbell was attending Narcotics Anonymous (NA) meetings in an attempt to treat her drug addiction. The articles were accompanied by several photographs, including one in which Ms. Campbell was seen standing in the street in front of a building as the central figure in a small group, dressed in jeans and wearing a baseball cap. Reportedly having just attended an NA meeting, she was being embraced by two people whose faces had been masked on the photograph. The photograph had been taken by a free-lance photographer contracted by the newspaper for that job. He took the photographs covertly while concealed some distance away in a parked car. Ms. Campbell brought proceeding against the Mirror, claiming a breach of confidentiality.
She won in front of the High Court, but its decision was unanimously reversed by the Court of Appeal. Ms. Campbell consequently brought an appeal in front of the House of Lords. The House of Lords was divided on the issue. It eventually ruled in favour of Ms. Campbell in a 3-2 judgment. All Judges essentially agreed that the publication of Ms. Campbell’s attendance of NA meetings was in the public interest, since she had previously denied taking drugs. The public thus had a right to be informed of the fact that it had been misled by Ms. Campbell. However, the majority of the House of Lords ruled that the publication of the additional information, including the photographs taken of Ms. Campbell leaving NA meetings, was not justified and had breached her privacy rights.
Banning Speech in the Public Space
Guest post by Rónán Ó Fathaigh, PhD candidate at Ghent University. For more information on Rónán, find him here.
The recent Article 10 judgment in Mouvement Raëlien Suisse v. Switzerland merits some close attention given the important questions of principle which are arguably involved. The First Section of the European Court found no violation of freedom of expression where Swiss authorities had banned a poster campaign by a quasi-religious association.
The applicant association was the Swiss branch of the Raëlien Movement, an international association whose members believe life on earth was created by extraterrestrials. The applicant association sought to conduct a poster campaign, with the poster featuring extraterrestrials, flying saucers, and the words “The message from the extraterrestrials. At last, science is replacing religion”. The poster also included the website address of the Raëlien Movement.
The police authorities refused permission for the poster campaign on the grounds of public order and morals, and the domestic courts upheld this decision. The Swiss courts held that although the poster itself was not objectionable, because the Raëlien website address was included, the Courts had to have regard to documents published on the Raëlien website. The courts held the poster campaign should be banned on the basis that: (a) there was a link on the website to a company which provided cloning services; (b) the association advocated “geniocracy” i.e. government by those with a higher intelligence; and (c) there had been allegations of sexual offences against some members of the association.
By Dirk Voorhoof, Ghent University / Legal-Human-Academy*
On March 3, 2011, the Tribunal de Grand Instance de Paris issued its decision in a case that has alarmed journal editors and reviewers, being afraid it could have a chilling effect on scholars’ and editors’ willingness to publish book reviews. The case concerns the criminal libel case against professor Joseph Weiler based on a complaint by Dr. Karine Calvo-Goller. The case was brought against Weiler in his capacity as editor-in-chief of the European Journal of International Law (EJIL) and its associated Book Review website www.GlobalLawBooks.org. It was brought as a result of the refusal by Weiler to remove a review by professor Thomas Weigend (University of Cologne, Law Faculty), critical of a book written by Dr. Karin Calvo-Goller, The Trial Proceedings of the International Criminal Court. ICTY and ICTR Precedents (Martinus Nijhoff Publishers). Read more…
