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Jeunesse v. the Netherlands: Quiet Shifts in Migration and Family Life Jurisprudence?

October 30, 2014

Readers familiar with the Court’s case law on family life and immigration will know that applicants’ chances of success are slim if family life was formed at a time when those involved knew that the migration status of one of them was such that their family life would be precarious in the Contracting state. Where this is the case, the principle is that the expulsion of the non-national family member will amount to an Article 8 violation “only in exceptional circumstances” (Rodrigues da Silva and Hoogkamer v. the Netherlands, para. 39 and Nunez v. Norway, para. 70). The Court has been reluctant to find a violation where there are no “insurmountable obstacles” to enjoying family life elsewhere (Arvelo Aponte v. the Netherlands, para. 60 and Useinov v. the Netherlands, p. 9).

In the recent case of Jeunesse v. the Netherlands the Court’s Grand Chamber did find a violation of Article 8 despite the applicant’s awareness of her precarious residence status before starting her family life in the Netherlands and despite the absence of insurmountable obstacles for the family to settle in the applicant’s country of origin. So what was exceptional about the circumstances in Jeunesse? And what to make of the Court’s analysis of these exceptional circumstances? Might this analysis signal any shift or refinement in the Court’s approach to some issues in its immigration and family life jurisprudence? Read more…

Ivinović v. Croatia: legal capacity and the (missing) call for supportive decision-making

October 23, 2014

 

Valeska David is a PhD Researcher at the Human Rights Centre of Ghent University and a member of the Research Network “The Global Challenge of Human Rights Integration: Towards a Users’ Perspective.”

We have all heard about the so-called paradigm shift brought about by the UN Convention on the Rights of Persons with Disabilities (CRPD). The social model of disability and the duty of reasonable accommodation are some of the “conceptual innovations” reshaping human rights law. However, we know much less about what that means in practice. One field in which this question has utmost importance is that of legal capacity of persons with disabilities, particularly of those with intellectual, psychosocial and sensory impairments. The recent judgment of the European Court of Human Rights in Ivinović v. Croatia, like other cases decided against the same state, deals with that issue: the legal capacity of persons with disability. The decision is part of a growing corpus of disability case law and is welcome for a number of reasons – which I briefly sketch here. Yet, in this post, I suggest looking at this judgment as somewhat of a missed opportunity. Read more…

Mocanu v. Romania: do large-scale human rights violations justify only a mild admissibility test?

October 17, 2014

This guest post was written by Helena De Vylder, Ph.D. researcher at the Human Rights Centre of Ghent University. Her research focuses on admissibility criteria in regional human rights systems.

Mocanu and others v Romania fits in a series of cases in which the Strasbourg Court needed to deal with grave and large-scale human rights violations, happening before the entry into force of the Convention. The events happening before the entry into force are undoubtedly not subject to the temporal jurisdiction of the Convention. The admissibility of complaints concerning the investigative measures and proceedings after the coming into force in the contrast has been accepted by recent case law (and here). Mocanu further refines this case law by dealing with particular circumstances.

In this case, the Court had to deal with the investigation and the length of proceedings which followed the violent crackdown on anti-government demonstrations in Bucharest in June 1990. During the crackdown, Ms Mocanu’s husband – the first applicant’s husband – was killed by gunfire and Mr Stoica – the second applicant – was arrested and ill-treated by the police. The criminal proceedings are still pending in respect of the first applicant. The relevant investigation in respect of the second applicant was terminated by a final judgment in 2011. The applicants claim the proceedings did not live up to the standards put forward by the procedural aspect of article 2 and 3.

In contrast to the merits, the admissibility of the case is less straightforward. The admissibility issues relate to the jurisdiction ratione temporis and the exhaustion of domestic remedies. Read more…

A Different Perspective on Hassan v. United Kingdom: A Reply to Frederic Bernard

October 14, 2014

This guest post was written by Cedric De Koker, Phd Researcher, Institute for International Research on Criminal Policy (IRCP), Ghent University.

On the 16th September 2014, the Grand Chamber of the European Court of Human Rights (ECtHR) rendered its judgment in the landmark case of Hassan v. United Kingdom. The case concerned the deprivation of liberty of a young male during the phase of active hostilities in Iraq and raised issues relating to extraterritoriality, the right to liberty and security (Article 5 ECHR) and the relationship between international humanitarian law (IHL) and Human Rights Law (HRL). In his guest post, Frederic Bernard has aptly described and analysed the facts of the case, the legal questions put before the Court, as well as the decision and points of view of both the majority and the dissenting judges. One issue merits further consideration, however, as it was instrumental in the Court reaching his decision and has turned out to be the most contentious aspect of the judgment: whether or not the UK complied with Art. 5 ECHR and could, absent any derogation, rely on the Third and Fourth Geneva Convention to intern the applicants brother, even though said article explicitly precludes internment and administrative detention where there is no intention to bring criminal charges. In what follows, I will therefore take a closer look at the rationale and arguments underpinning the decision of the Court and the opinion of the four dissenting judges with regard to this issue and provide the readers with an alternate point of view, as it is at this point that I disagree with the analysis of Mr. Bernard. The facts of the case have been extensively described elsewhere and will not be repeated here (a summary can be found here and here)

Read more…

Mansur Yalçın v. Turkey: religious education and the (easy) way out

October 10, 2014

This guest post was written by Yousra Benfquih, FWO aspirant, PhD Fellow Research Foundation Flanders at the University of Antwerp.

In the case of Mansur Yalçın v. Turkey, 14 Turkish nationals living in Istanbul who are adherents of the Alevi faith, complained before the Court that the way in which the religion and ethics class – a compulsory subject in primary and secondary public education under article 24 of the Turkish Constitution – was taught, violated Article 2 of Protocol No. 1. In this connection, they moreover put forward a violation of Articles 9 and 14 of the Convention. Read more…

Deprivation of liberty in armed conflicts: the Strasbourg Court’s attempt at reconciling human rights law and international humanitarian law in Hassan v. UK

October 2, 2014

This guest blog post was written by Frederic Bernard, Lecturer at the University of Geneva, Global Studies Institute, and Attorney-at-law admitted to the Geneva Bar.

The fragmentation of international law has been for some time the subject of in-depth academic and expert studies, as exemplified, for instance, by the report dedicated to this topic on 13 April 2006 by the Study Group of the International Law Commission. The relationship between international human rights law and international humanitarian law, in particular, has attracted much attention. In this context, the Hassan case is noteworthy, because, for the first time, the Strasbourg Court’s Grand Chamber had to address this relationship directly, in order to assess whether the applicant’s brother’s rights had been breached due to his detention in Iraq by British forces during the 2003 war:

This is the first case in which a respondent State has requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law.

Read more…

NEW BOOK: “The Experiences of Face Veil Wearers in Europe and the Law” (E. Brems ed.)

September 25, 2014

cover book

We are happy to announce the publication of a new book entitled “The Experiences of Face Veil Wearers in Europe and the Law” edited by prof. Eva Brems and published by Cambridge University Press.

This book, unique in its kind, unites empirical research on women wearing face veils in Europe and commentary of scholars of different disciplines on this research and on face veil bans. People who have been following the case of SAS v. France, might be particularly interested in the in-depth analysis that this book provides of the empirical research several third parties referred to in the case. Read more…

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