New Publication: “Doing Minority Justice Through Procedural Fairness: Face Veil Bans in Europe”
Eva Brems and I are happy to announce the publication of our article entitled “Doing Minority Justice Through Procedural Fairness: Face Veil Bans in Europe” in the Journal of Muslims in Europe. In this article we examine the bans on face veils (better known as ‘Burqa bans’) from a procedural justice perspective. This piece also gave us an excellent opportunity to reflect on how the European Court of Human Rights might deal with this matter of face veil bans in a procedurally just way.[1] One case in which the Court will have to face the issue of a face veil ban is in the case of S.A.S. v. France. The Human Rights Centre of Ghent University submitted a third party intervention in this case last year, in which we advocated inter alia for a procedural justice approach.
The full reference of the article is Saïla Ouald Chaib and Eva Brems, “Doing Minority Justice Through Procedural Fairness: Face Veil Bans in Europe”, Journal of Muslims in Europe 2 (2013), 1-26. Please find the abstract bellow.
The French and Belgian bans on face veils in public places have been subjected to strong substantive human rights critiques. This article takes a complementary approach, examining the bans from the perspective of procedural fairness.
Indeed, the French and Belgian bans are extreme examples of legislative
processes taking place above the heads of the people concerned, neglecting
the ban’s possible human rights impact. After exploring what the social
psychology notion of procedural fairness entails for the judiciary and the
legislator, especially in a multicultural context, this article details procedural fairness shortcomings with respect to the face veil ban in France and Belgium. Subsequently, the article sets out how the European Court of Human Rights might compensate for these shortcomings.
[1] For a general exploration of the concept of procedural justice in the context of the jurisprudence of the ECtHR, see also the recent publication by Eva Brems and Laurens Lavrysen: http://strasbourgobservers.com/2013/02/12/procedural-justice-in-human-rights-adjudication-the-european-court-of-human-rights/
ECtHR Really Applies Less Restrictive Alternative: Saint-Paul Luxembourg S.A. v. Luxembourg
The structured proportionality test, as utilised by the German Constitutional Court (among others) and championed by Robert Alexy and his followers, subjects limitations of fundamental rights to a three-pronged test. The test is intended to examine – step by step – a measure’s (i) suitability, (ii) necessity and (iii) proportionality stricto sensu. Correct application of the test demands, according to Alexy and his followers, the examination of each of these three elements in order. As soon as a measure fails one of the steps, it is unconstitutional and there is thus no need to examine the next step(s).
Scholars who advocate this structured version of the proportionality test often lament its poor or wrongful application by courts, including the European Court of Human Rights. The ECtHR has, by and large, indeed not developed nor applied such a strictly ordered version of the proportionality test. It is particularly rare for the Court to apply the necessity test as separate from the proportionality stricto sensu test (also known as balancing). Instead, the Court has generally looked at the existence of less intrusive measures as an element to consider in the balance or it has continued to examine a measure’s proportionality in the strict sense after having indicated that less restrictive measures were available.
Not so in the recent case of Saint-Paul Luxembourg S.A. v. Luxembourg. In its judgment in that case, the ECtHR has – to my knowledge in a very exceptional move – applied the less restrictive alternative test as Alexy intended it to function, much to the satisfaction of the proponents of a structured proportionality test, I imagine.
Ban on Political Advertising Does Not Violate Article 10: Animal Defenders International v. UK
This guest post was written by Ronan Ó Fathaigh*
On Monday, the Grand Chamber of the European Court held, by nine votes to eight, that the UK’s ban on political advertising on television did not violate Article 10. The majority opinion in Animal Defenders International v. the United Kingdom departed substantially from the Court’s previous case law on political advertising, and introduced a new method for reviewing the proportionality of such blanket-bans.
The facts were straightforward, with the applicant association submitting an advertisement for broadcast on television showing a girl playing a primate in a cage, with a voice-over describing the ill-treatment of primates. It was no surprise that the Broadcast Advertising Clearance Centre concluded the advertisement breached the Communications Act, which prohibits advertisements “directed towards a political end.” The case reached the House of Lords in 2007, and at that time there were two main authorities from the European Court that the law lords considered:
This guest post was written by Cedric De Koker, academic assistant at the Institute for International Research on Criminal Policy (IRCP), Ghent University.
With its judgment in the case of Gülay Çetin v. Turkey, the European Court of Human Rights (ECtHR) added another chapter to its significant body of detention-related case law. Having to pronounce on the issue of whether the continued detention of Mrs. Gülay Çetin, a retired auditor diagnosed with metastatic gastric cancer, infringed upon the European Convention on Human Rights, the ECtHR held unanimously that the Turkish government had violated article 3 (prohibition of inhuman or degrading treatment), taken alone and in conjunction with article 14 (prohibition of discrimination). Perhaps the most striking feature of the ruling relates to the fact that the ECtHR concluded that the applicant had been discriminated against while she was in pre-trial detention, as she had not been entitled to the same protective measures as convicted inmates with serious illnesses. As it was the first time that the Court explicitly mentioned discrimination between remand and convicted prisoners, the judgment could and most likely will have its repercussions for the administration of prisons.
We were in Strasbourg yesterday to attend the Grand Chamber hearing in the case of Söderman v. Sweden. In this case, formerly known as E.S. v. Sweden, the Human Rights Centre of Ghent University has submitted a third party intervention. We expect the Grand Chamber judgment to become the leading case on positive obligations under Article 8 ECHR. At the hearing, we were excited to hear the lawyers of both the applicant and the Swedish state referring to our third party intervention in their oral submissions (for a podcast of the hearing, see here).
This post was written by Alexandra Timmer and Lourdes Peroni
Alexandra and I are happy to announce the forthcoming publication of our joint Article “Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law.” The piece will be published in the International Journal of Constitutional Law – I•CON.
In this Article, we critically examine the development and consequences of the concept of “vulnerable groups” in the Strasbourg case law. Our analysis includes a number of high-profile cases, from M.S.S. v. Belgium and Greece, to V.C. v. Slovakia, Alajos Kiss v. Hungary, Kiyutin v. Russia and the recent case of Horváth and Kiss v. Hungary.
The Article was an excellent opportunity to reflect and work together on issues of common interest, such as non-discrimination, equality and vulnerability.
Here is the abstract:
The concept of “vulnerable groups” is gaining momentum in the case law of the European Court of Human Rights. The Court has used it in cases concerning Roma, people with mental disabilities, people living with HIV and asylum seekers. Yet the appearance of the vulnerable group concept in the Court’s legal reasoning has so far escaped scholarly attention. Drawing on theoretical debates on vulnerability and equality as well as on the Court’s case law, this Article offers a descriptive and normative assessment of the concept. Reasoning in terms of vulnerable groups opens a number of possibilities, most notably, the opportunity to move closer to a more robust idea of equality. However, the concept also has some inherent difficulties. This Article argues for a reflective use of the concept and points out ways in which the Court can avoid its pitfalls.
In this second post on the Grand Chamber judgment in X. and Others v. Austria, I will focus on the narrowness of it all: the narrowness of the issue before the Court, the narrowness of the ruling and the narrow approach the majority took to the European consensus. Although I believe the majority should be applauded for taking incremental steps towards extending equal rights to LGBT persons, the approach it takes to the European consensus leaves much to be desired. Indeed, X. and Others provides a perfect example of how the Court sometimes uses the consensus argument to provide a post hoc rationalisation and justification of an outcome it has already reached, rather than as a substantive argument that leads to that outcome.
