New publication: Poverty and the ECHR

I’m happy to announce the publication of my article “Strengthening the Protection of Human Rights of Persons Living in Poverty under the ECHR” in the September edition of Netherlands Quarterly of Human Rights. In my article, which could hardly be any more topical than in today’s austerity-struck Europe, I address questions such as: what is the European Court of Human Rights’ record in protecting the human rights of persons living in poverty? What are the limitations of its current approach? What kind of legal approaches could assist the Court in better grasping the nature of poverty as capability deprivation? And how could this, ultimately, result in a stronger protection of the human rights of persons living in poverty?

This is the abstract:

In recent years, the European Court of Human Rights has developed a significant jurisprudence which illustrates the added value of the European Convention on Human Rights (ECHR) in the field of poverty. Building on the findings of Amartya Sen’s “capability approach”, the article examines the extent to which the Court has grasped the nature of poverty as “capability deprivation”. It is argued that, due to polycentric concerns and a reluctance to overcome the negative / positive obligations and civil and political / social and economic rights dichotomies, the Court has only, to a limited extent, done so. Subsequently, three approaches are examined that could allow it to better take into account the findings of the “capability approach” and that could allow for enhanced protection of the human rights of persons living in poverty under the ECHR: endorsing a more complex perspective on the responsibility of the state; analysing poverty as a failure to provide substantive equality; and recognising the vulnerability of persons living in poverty.

Dubská and Krejzová v. Czech Republic: a ‘negative’ or ‘positive’ right to give birth at home?

By Laurens Lavrysen

In the case of Dubská and Krejzová v. Czech Republic, the Strasbourg Court had to pronounce itself on the regulation of home birth under Czech law. While on the one hand Czech law allowed for home births, on the other hand it prohibited midwives from assisting them. In its judgment of 11 December, the Court found no violation of the right to respect for private life (Article 8), mainly based on the increased risks to the lives and health of newborn and mother vis-à-vis a hospital birth in case of complications. The Court thereby endorsed the paradoxical Czech legal framework under which relatively safe home births with the assistance of a midwife are prohibited on health grounds, whereas unsafe home births without such assistance are allowed. It is argued that by constructing the case as one involving a narrow conception of ‘interference’, the Court failed to look at the broader picture of what it means to effectively secure a human right. Such a more holistic understanding requires an appreciation of both ‘negative’ and ‘positive’ aspects of Article 8 at stake in the present case.

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New publication: Less Restrictive Means & the Strasbourg Court

First of all, a Happy New Year to you all, dear readers! As far as we are concerned, 2015 couldn’t have started better. We’re proud to announce the publication of the article “‘Don’t use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights”, written by prof. Eva Brems and I. The article is concerned with the emerging practice by the European Court of Human Rights to use more and more explicit lines of legal reasoning placing the examination of less restrictive means at the centre of its proportionality analysis. What is the theory behind this concept? How does it work in practice? Is there really a less restrictive means revolution going on in Strasbourg? For the answer to all these questions and more, you can access the article on the website of Human Rights Law Review.

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Belgium violated the ECHR by extraditing a terrorist to the USA despite an interim measure by the Strasbourg Court: Trabelsi v. Belgium

The Trabelsi case is noteworthy for two reasons. Firstly, because of the blatant disregard by Belgium of the interim measure issued by the European Court of Human Rights. Secondly, because of the application of the reasoning from Vinter v. UK – in which the Court found that life without parole is incompatible with Article 3 ECHR – to the context of extradition proceedings. The Court finds that the applicant’s extradition by Belgium to the USA, where he ran the risk of being convicted to life without parole and despite an interim measure to the contrary, was in violation of Articles 3 and 34 ECHR. This blog post will first highlight the latter violation, before questioning the Court’s reasoning with respect to the former one.

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Education in prison: right to education only protects access in case of ‘existing’ educational facilities (Velyo Velev v. Bulgaria)

In Velyo Velev v. Bulgaria, the Court found a violation of the right to education (Article 2 Protocol 1) in a case concerning the refusal to allow a prisoner to enrol in a secondary school operating inside the prison. While the judgment should be hailed for explicitly affirming that remand prisoners also enjoy the right to education, it is unfortunate that the Court continues to construct the scope of Article 2 Protocol 1 in a very narrow fashion. As a result the Court fails to provide genuine substance to the right to education in a prison context. Continue reading

Strasbourg Court fails to adequately protect trade union freedom: secondary strike action only considered to be an ‘accessory’ aspect of Article 11 (R.M.T. v. UK)

According to the Strasbourg Court’s established case law, the right to strike action is protected by Article 11 ECHR (e.g. Enerji Yapi-Yol Sen v. Turkey), which more generally protects the right of trade unions to strive for the protection of their members’ interests (e.g. Demir and Baykara v. Turkey). In the recent case of R.M.T. v. UK, the Court for the first time had to rule on a case concerning so-called secondary strike action, i.e. a strike organized by trade union members in one company in support of a strike initiated in another company. The United Kingdom is one of the few Council of Europe member states – together with Austria, Luxembourg and the Netherlands – in which a total prohibition on secondary strike action is in place. In its judgment of 8 April, the Court nonetheless did not consider such a blanket ban to be contrary to Article 11.

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Shitting in ‘closed’ overall not ‘degrading’ according to Strasbourg Court

If you look up the word ‘degrading’ in the dictionary, chances are that you find a picture there of a person who cannot help shitting him- or herself. In the case of Lindström and Mässeli v. Finland, the Strasbourg Court however did not consider that state authorities necessarily inflict ‘degrading treatment’ when they are responsible for bringing a prisoner in such a situation. The case concerns prisoners who were put in ‘closed’ overalls they were unable to remove, which resulted in them shitting themselves because the prison guards did not bring them in time to a toilet. According to the Court, this did not amount to a violation of Article 3 ECHR. The Court did find a violation of Article 8, but as will be argued below, since the protection offered by this provision is lower, it cannot be a genuine alternative for the applicability of Article 3.

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