New publications: Vulnerability in the case law of the European Court of Human Rights

As we announced earlier, Lourdes Peroni and I have  written an article together which analyzes the development of the vulnerable group concept in the Strasbourg case law. I am happy to say that this article has now been published as:

Lourdes Peroni & Alexandra Timmer, Vulnerable Groups: the Promise of an Emergent Concept in European Human Rights Convention Law, 11 International Journal of Constitutional Law (2013), p. 1056-1085 (link is to the full-text article!).

This 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 relation to ECtHR case law, the concept of vulnerability proved to be a rich topic for research. Widening the inquiry beyond “vulnerable groups” to vulnerability more generally, I  have written a second piece which has also just been published:

Alexandra Timmer, “A Quiet Revolution: Vulnerability in the European Court of Human Rights”, in: Martha Fineman & Anna Grear (eds.), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate), p. 147-170.

Again, the abstract:

Without occasioning much comment, the European Court of Human Rights is increasingly relying on vulnerability reasoning. This chapter analyses that development. First it discusses the concept of vulnerability and its relationship to human rights on a theoretical level, particularly drawing on the work of Martha Fineman. Through an emphasis on universal vulnerability, Fineman’s work invites a reimagining of the human of human rights law. This chapter then examines and critiques how the Court conceives of vulnerability: it charts who are vulnerable according to the Court, and why.
The ability of vulnerability, the chapter argues, is that it allows the Court to prioritize between different claims. Vulnerability reasoning likewise enables the Court to extend certain positive obligations. Vulnerability considerations are thus at the frontlines of the Strasbourg case law. However, as a social institution the Court is also vulnerable in and of itself. This is a reality that the ECtHR will have to take seriously in order to endure as a supranational human rights court. The Court’s legal reasoning about vulnerability, and the revolutionary potential of that reasoning, is therefore ultimately limited by the Court’s own vulnerability.

Seminar Announcement: Stereotyping as a Human Rights Issue

The Human Rights Centre of Ghent University organizes a seminar on the topic of Stereotyping as a Human Rights Issue. The seminar will take place in Ghent on 4 December 2013.

The purpose of this seminar is to explore the topic of stereotyping from a wide human rights perspective. We will address questions like: How do invidious stereotypes affect the enjoyment of human rights? How came the language of stereotyping to be included in human rights treaties such as CEDAW and CRPD? Does human rights law manage to capture the harms of stereotyping? How could human rights law be improved in this respect? What potential has a focus on stereotypes to develop a more robust notion of equality in human rights law?

This is the program:  Continue reading

HIV-based employment discrimination: the ECtHR takes a strong stance in I.B. v. Greece

The Strasbourg Court has recently delivered its first judgment on the topic of HIV-based employment discrimination. I.B. v. Greece (judgment in French!) concerns a man who is HIV-positive and who was fired from his job, because his employer wished to keep the company running smoothly. What happened was that a group of I.B.’s co-workers, finding out about his HIV diagnosis, had called for his dismissal because they were afraid of contagion.

Although much of the legal reasoning in this judgment is familiar (notably from the landmark case of Kiyutin v. Russia), this ruling is notable for the strong message the Court sends about the harms of HIV-based stigma and discrimination. In this post I will highlight what are to my mind the most noteworthy aspects of this judgment, namely that the Court applies a social model of disability and that it uses the concept of vulnerable groups to narrow the margin of appreciation. The drawback of this judgment, I conclude, is that it does not give much support to HIV-positive people requiring some form of accomodation from their employer. Continue reading

Horváth and Kiss v. Hungary: a strong new Roma school segregation case

The Strasbourg Court has once more delivered a judgment in a Roma school segregation case. The applicants in Horváth and Kiss v. Hungary are two young Roma men, who were diagnosed as having mild mental disabilities when they were children. As a result of these diagnoses, they were placed in a remedial school. Their education there was poor: the curriculum was underdeveloped, their schooling did not give them access to the type of job they wanted, and they ended up de facto segregated from the wider population. The applicants claim that their education in the remedial school constituted ethnic discrimination in their enjoyment of their right to education (Article 2 Protocol 1 in conjunction with Article 14 ECHR). The Strasbourg Court rules that they’re right: it finds a violation of the Convention on the ground of indirect ethnic discrimination.

Much of the reasoning in this case is familiar from other Roma school segregation cases, such as, notably, D.H. and Others v. Czech Republic (2007) and Oršuš and Others v. Croatia (2010). In this post, I will discuss the judgment and try to highlight what’s new in the Court’s reasoning. Continue reading

C.N. v. United Kingdom: the Court addresses domestic servitude

Amongst all the rightful concerns about the Strasbourg Court’s case-overload, I often find myself wondering about the cases that the Court isn’t getting. Some structurally occurring human rights violations aren’t receiving the attention of the Court – at least not in any amount that is proportionate to their scale. Domestic violence against women is one example, as is trafficking and domestic servitude. There is an extremely worrying dearth of judgments on these issues.

C.N. v. the United Kingdom, a case about a woman who was held in domestic servitude, is therefore a welcome ruling. This is just the fourth judgment in which the Court finds a violation of the prohibition of slavery, forced labor and servitude (Article 4 ECHR).[1] In this post I will highlight the most salient aspects of the Court’s reasoning. Continue reading

The Court on Racial Discrimination (Part I): M. and Others v. Italy and Bulgaria

It’s fair to say that the Court’s record on racial discrimination is hesitant. Only as late as 2004 did the Court for the first time find that a State was guilty of racial discrimination.[1] This was in the Chamber judgment of Nachova v Bulgaria, which was later partly rescinded by the Grand Chamber in 2005. Since then, the Court’s jurisprudence on the topic of racial discrimination has rapidly expanded. The Court has delivered some strong judgments in the past years, most notably D.H. and Others v. the Czech Republic(2007). Yet the Court remains reluctant to find a violation of Article 14 of the Convention on the basis of race discrimination.

In the past few months, the Court has delivered several judgments on the topic. These cases illustrate the difficulties of the Strasbourg jurisprudence on race discrimination, but they also contain some promising new points of departurein the Court’s legal reasoning. First was B.S. v. Spain (24 July), concerning a sex worker of Nigerian origin who was harassed by the Spanish police. Then came M. and Others v. Italy and Bulgaria (31 July), about a Bulgarian Roma girl who alleged that she was trafficked to Italy and abused there by several men who held her hostage in a villa. Most recent is the case of Fedorchenko and Lozenko v. Ukraine (20 September), concerning a Roma man who complained that a police officer had set fire to his house. Five of the applicant’s family members died because of that fire.

In a two-post miniseries, Lourdes Peroni and I will discuss these three cases, which have to our knowledge not been picked up by other blogs. In the process we will revisit some of the major factors that continue to hamper the Court’s case law in the field of racial discrimination. In this post – the first half of the series – I will discuss M. and Others v. Italy and Bulgaria, which raises the question what racial discrimination is (or what counts as discrimination) in the eyes of the Court. Next week, Lourdes will discuss the Court’s standard of proof in cases that concern the investigation of racist violence. Continue reading

Announcing a Blog Tribute to Judge Tulkens

Next month, Judge Tulkens will be leaving the ECtHR after serving on it for fourteen years. She has been the Belgian judge since 1998, the year the new Court started working. As of 2011 she has been one of the Court’s two Vice-Presidents.

We at the Strasbourg Observers are based in Belgium – at Ghent University – and are excited to be able to seize this opportunity to highlight Judge Tulkens’ unique contribution to the Court. We work on a research project entitled “Strengthening the European Court of Human Rights: More Accountability through Better Legal Reasoning” and, to us, Judge Tulkens epitomizes what our research is all about. As a judge she has tirelessly devoted herself to safeguard and improve the standard of legal reasoning in the ECtHR.

To honor and commemorate Judge Tulkens’ work, we have invited a number of her friends in legal scholarship and practice to contribute a guest post that contemplates her invaluable role in developing the Court’s jurisprudence. Some guest bloggers will discuss one of her numerous and incisive separate opinions, others will debate a leading case in which she was among the majority. We will put all the posts online over the next month.

Also, we hereby issue an open invitation to join us in exploring and celebrating Judge Tulkens’ voice on the Court. This blogging tribute is not conceived of as a traditional liber amicorum; everybody is welcome to participate, either by sending in a guest post or by posting something in the ‘comments’ section. Publication of such guest posts will depend on editorial acceptance.

We hope that all our readers and of course Judge Tulkens herself will take pleasure in this engagement with her work. Her inimitable voice on the Court will be sorely missed.

The Strasbourg Observers