Selecting Landmark Cases

By Laura Van den Eynde, Research Fellow (F.N.R.S.) at the Center for Public Law – Université libre de Bruxelles. Lauras Ph.D. research focuses on the relationships between human rights NGOs and jurisdictions and the influences these organizations have on judicial dialogue.

This post aims at discussing a question related to case selection when conducting research. The relevance or the need to limit the number of cases to examine is particularly acute regarding the European Court of Human Rights (whose case law contains many repetitive cases). One option is to analyse ‘landmark cases’, which requires a more precise definition or at least a coherent methodology for drawing up the list of cases. Although the term is frequently used, it is often difficult to rely on a specific criterion to determine what a ‘landmark’ case is[1] and more research seems to have been conducted regarding the United States or the Court of Justice of the European Union.

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Examining Strasbourg case law and judicial behavior: a view across disciplines

By Dorothea Staes, PhD researcher at ULB and USL on the European Court on Human Rights’ references to external normative instruments to interpret the ECHR.

Legal scholars repeatedly struggle with and are criticized for methodological aspects of research design, not least when undertaking case law studies. A holistic approach to judicial decision-making – introducing extrajudicial disciplines and explanatory factors – has the capacity to enrich research methodology and substantive insights in legal phenomena. Legal scholars should be aware of the value that other disciplines might add while not losing sight of possible limits of their own methodological capacities in this respect. Continue reading

Blog post series: legal research methodologies to deal with case law from Strasbourg (and beyond)

This post was written by Valeska David, Helena De Vylder and Eline Kindt, doctoral researchers at the Human Rights Centre of Ghent University and members of the inter-university Human Rights Integration project.

We are used to discuss and analyse the Strasbourg Court’s case law. We share our thoughts and findings in blogposts, papers and even PhDs and books. But how often do we share our methodologies? We are happy to announce a blogpost series on this precise question because, indeed, methodology is one of the biggest hurdles to overcome for legal scholars in general and for PhD researchers in particular.

A few months ago the Ghent University team of the Human Rights Integration project organised a PhD Seminar on methodological approaches towards case law research. The aim was to help PhD students working on case law to reflect on their methodology design and strengthen the methodological underpinnings of their research. As experience is an important source of knowledge, seven senior PhD researchers and fresh doctors in law illustrated which hurdles they struggled with and how they developed their methodology in order to overcome these problems. The initiative was most welcomed by students and academics and it became clear that this topic is a ‘universally’ challenging one for legal researchers. We then decided to encourage the sharing of methodological experiences once again, and bring some of the debates and insights from the Seminar here, to Strasbourg Observers.

In the course of the following weeks, this Blog will publish five posts written by some of the speakers at the above-mentioned seminar concerning their experience with case law research. The first one to be online is from Dorothea Staes, PhD researcher at the Université de Saint-Louis in Brussels and member of the Human Rights Integration Project. She will approach the issue of how to do research on the Strasbourg case law from the perspective of judicial behaviour, taking on board insights from extra-legal disciplines. The second post you will read is written by Laura Van den Eynde, doctoral researcher at the Université Libre de Bruxelles and affiliated to the same project. In her post, she will explore how to define and select landmark cases.

Next, Dr. Stijn Smet, Dr. Lourdes Peroni (both postdoctoral research fellows at the Human Rights Centre of Ghent University) and Dr. Saïla Ouald Chaib, who recently obtained her PhD at Ghent University, will discuss other methodological issues.

We hope this post series will be as helpful to you as the seminar was to us! Readers who would also like to share their experiences on legal research are, of course, warmly invited to do so in the comment section.

ECtHR accepts strict application of data protection law and narrow interpretation of journalistic activity in Finland

By Dirk Voorhoof, Ghent University

After proceedings at the national level during eight years, and after a preliminary ruling by the EU Court of Justice in Luxembourg on 16 December 2008 (Case C-73/07), the European Court of Human Rights (Fourth section) in Strasbourg has delivered a controversial judgment in the domain of protection of personal data and data journalism. In Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland, the Court comes to the conclusion that a prohibition issued by the Finnish Data Protection Board that prohibited two media companies (further: Satamedia) from publishing personal data in the manner and to the extent they had published these data before, is to be considered as a legal, legitimate and necessary interference with the applicants’ right to freedom of expression and information.

The European Court agrees with the Finnish authorities that the applicants could not rely on the exception of journalistic activities within the law of protection of personal data. In finding no violation of the right to freedom of expression and information, the Court not only accepts a restrictive interpretation of the notion of journalistic activity, it also reduces drastically the impact of the right to information of public interest.

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New ECSR decision on conscience-based refusals protects women’s right to access abortion

Guest post by Katrine Thomasen, Legal Adviser for Europe, Center for Reproductive Rights. The Center for Reproductive Rights together with the Swedish Association for Sexuality Education (RFSU) submitted joint observations to the ECSR regarding the complaint.

The European Committee of Social Rights (Committee) recently rejected a complaint filed by the Federation of Catholic Families in Europe (FAFCE) against Sweden that claimed health professionals are entitled to deny women legal abortion services based on claims of personal conscience. In dismissing each one of FAFCE’s claims, the Committee reaffirmed women’s right to access reproductive health services and upheld Sweden’s robust legal and policy framework that protects these rights. The decision reinforces previous jurisprudence from the European Court of Human Rights that women’s access to reproductive health care may not be jeopardized by health care professionals’ personal refusals to provide relevant services.

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New publication: ‘Judging Stereotypes: What the European Court of Human Rights Can Borrow from American and Canadian Equal Protection Law’

Stereotyping has appeared on the radar of the European Court of Human Rights (ECtHR) fairly recently. In contrast, stereotyping has long been a central feature of both American and Canadian equal protection law. This has led me ask what the ECtHR could borrow from the U.S. and Canadian Supreme Courts. I am happy to be able to announce that my article “Judging Stereotypes: What the European Court of Human Rights Can Borrow from American and Canadian Equal Protection Law” has now been published in the American Journal of Comparative Law (Volume 63, 2015, p. 239-284).

This article was written as part of Eva Brems’ research project “Strengthening the European Court of Human Rights: More Accountability Through Better Legal Reasoning”. The full text is available via HeinOnline.

This is the abstract: Continue reading

V.M. and Others v. Belgium: The asylum law discourse reloaded

By Salvo Nicolosi

Last 7 July 2015, the Second Section of the Strasbourg Court ruled in V.M. and Others v. Belgium, concerning the violation of Articles 3 and 13 ECHR owing to the reception conditions of asylum seekers. The case must be placed within the settled case law on the protection of asylum seekers under Article 3 ECHR which the Court has developed over the years and thus it offers another occasion to reflect on the timely and controversial debate regarding the interpretation of the right to asylum through the lens of the Strasbourg Court (Bossuyt, 2010; Mole/Meredith, 2010).

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