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Mennesson v. France and Labassee v. France: Surrogate motherhood across borders

July 16, 2014

This guest post was written by Liesbet Pluym, PhD candidate at Ghent University.

Surrogate motherhood is a complex phenomenon which can lead to many different human right questions: would the absolute prohibition of surrogacy in domestic laws be in accordance with the right to respect for private and family life (art. 8 ECHR)? If it is legally regulated, would e.g. the exclusion of gay couples be in breach with article 8, 14 ECHR? Would denying maternal rights to the surrogate mother and not giving her a right to reconsider her decision once the child is born, be incompatible with the European Convention on Human Rights?

The application of international private law rules also leads to uncertainty concerning the compatibility with human right treaties en declarations. The cases of Mennesson v. France and Labassee v. France concerned the French refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of surrogacy treatment and the couples on whose request the treatment was performed. The European Court of Human Rights held that there had been a violation of the European Convention on Human Rights, in particular the children’s right to respect to private life ⎼ but no violation of the right of the children or intented parents to respect of family life.

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Making subsidiarity work: Struggling with procedural review – A.K. v. Latvia

July 14, 2014

The applicant in AK v Latvia is unhappy with the fact that she gave birth to a daughter with Down’s syndrome. She claims that the she was denied access to important medical information in the form of an antenatal screening test owing to negligence of her gynaecologist, in violation of article 8 ECHR. Read more…

S.A.S. v. France as a problematic precedent

July 9, 2014

As this blog already features an excellent post on SAS v France, this is a brief contribution, with a specific focus, namely SAS v France as a problematic precedent beyond the issue of the face veil and even beyond religious freedom cases. I shall focus on two problematic aspects of the judgment: its acceptance of the promotion of ‘living together’ as a legitimate ground for the restriction of fundamental rights, coupled with a wide margin of appreciation; and the way it assesses the seriousness of the interference. Read more…

The European Court of Human Rights has spoken … again. Does Turkey listen?

July 7, 2014

This guest post was written by Dr Elena Katselli, Senior Lecturer in Law at Newcastle Law School

Thirteen years have elapsed since the European Court of Human Rights’ (ECtHR) judgment in Cyprus v Turkey in which the Court found Turkey responsible for 14 violations of the European Convention on Human Rights (ECHR) and its Protocols. The violations related to 1,485 Greek Cypriots who disappeared during the Turkish military invasion and occupation of Cyprus in 1974; the living conditions of enclaved Greek Cypriots living in the occupied area of Karpas since thereafter; and displacement.[1] Read more…

A Lesson for Applicants: Don’t Agree to a Relinquishment to the Grand Chamber (S.A.S. v. France Part 2)

July 4, 2014

This guest post was written by Ronan Ó Fathaigh* is a PhD researcher at the Human Rights Centre of Ghent University.

I have just read the judgment in S.A.S. v. France, where the 17-judge Grand Chamber of the European Court held that the face-veil ban in France does not violate the European Convention.Others have commented on the merits of the case (see Saïla and Lourdes’ post), but one thing struck me that needs to be aired as a lesson for applicants: don’t agree to a relinquishment to the Grand Chamber. Read more…

S.A.S. v. France: Missed Opportunity to Do Full Justice to Women Wearing a Face Veil

July 3, 2014

By Saïla Ouald Chaib and Lourdes Peroni

This week, the Grand Chamber of the European Court of Human Rights published its long-expected judgment in S.A.S. v. France. The case concerns a ban on the wearing of face veils in the public space. Although the outcome of such highly debated cases is always unpredictable, we hoped that the Court would take this opportunity to bring procedural and substantive justice to the women wearing a face veil in Europe.[1] Alas, the Court disappointingly decided the case by granting a wide margin of appreciation to France and by consequently not finding a violation of any of the ECHR provisions invoked, in particular freedom of religion, the right to private life and non-discrimination. At the same time, however, the judgment contains some positive aspects, namely respect for several requirements of what is known as “procedural justice” and departure from previous case law portraying Muslim women as oppressed. In this post, we share our first impressions on what we think are some positive and negative aspects of the Court’s reasoning. Read more…

Neighbourly Murders* , Forced Forgetting and European Justice – Marguš v Croatia

June 30, 2014

This guest post was written by Carole Lyons, Law School, RGU, Scotland

On 27 May 2014, a Grand Chamber of the ECtHR, in Margus v Croatia, pronounced upon the contentious issue of the use of amnesties in post-conflict settings. The case concerned a Croatian army commander who had been convicted of several murders of civilians in 1991. He had benefited from an amnesty in relation to the murders in 1997 but in 2007 was convicted of war crimes. Just two months before Croatia became a signatory to the European Convention on Human Rights (ECHR) in November 1996, the Croatian Parliament had passed a Law on General Amnesty.[1] Under the provisions of the latter, immunity from prosecution was granted in relation to crimes committed during the war which took place between 1991 and 1995 after Croatia’s declaration of independence from the former Socialist Federal Republic of Yugoslavia. Read more…

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