I am happy to share with the readers the recent publication of my chapter “On the Road to Substantive Equality: Due Process and Non-discrimination at San José,” written for the book When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint, by Marie-Bénédicte Dembour (Oxford University Press 2015). Continue reading
Karaahmed v. Bulgaria, a case recently decided at Strasbourg, concerned incidents arising from a demonstration by followers of “Ataka,” a political party known for its views against Islam and its adherents. The place of the demonstration: in front of the Banya Bashi Mosque in Sofia. The time: during Friday prayers. The manner: carrying flags featuring slogans such as “Let’s get Bulgaria back;” shouting insults at the worshippers such as “Turkish stooges”, “filthy terrorists,” “scum” and “Your feet stink! That is why you wash them!;” pelting them with eggs and stones; cutting a Turkish fez with a pocket knife while saying “Can you hear me? We shall now show you what will happen to each one of you!” and setting fire to prayer rugs.
The Court declared the Article 3 complaint, either alone or in conjunction with Article 14, inadmissible but found a violation of Article 9. In this post, I offer some preliminary thoughts on the inability of the Article 9 analysis to make visible what the events were really about at their heart.
At a time when family life takes increasingly diverse forms in Europe and elsewhere, the recent judgment in Senchishak v. Finland clings to the ideal of parents and minor children as the yardstick to determine the existence of family life at Strasbourg. The Court declared the complaint under Article 8 inadmissible, after finding that an elderly mother seeking to reunite with her adult daughter failed to prove that she was dependent on the latter. Senchishak reaffirms a problematic line of jurisprudence, which restricts the notion of family life to the “core” family, namely parents and minor children. This restrictive understanding of family life is especially pervasive in family reunion and expulsion cases. The Court’s approach in these cases does not only seem out of place in growingly diverse societies. This approach impoverishes the notion of family life with unequal implications for those whose family life does not match the parent/minor children standard. Continue reading
By Lourdes Peroni
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? Continue reading
The Strasbourg Observers are back from a summer break with an exciting announcement: the Human Rights Centre of Ghent University organizes a seminar entitled “Law’s Imagining of Religion: A Debate across Disciplines.” The seminar will bring together religion and legal scholars from Canada, Europe and the United States, including Winnifred Fallers Sullivan, Cecile Laborde, Helge Arsheim, Malcolm Evans, Lori G. Beaman, Susanna Mancini, Solange Lefebvre, Mark Hill, Meadhbh McIvor and Lourdes Peroni.
WHEN: 23 September 2014
WHERE: Ghent University’s Faculty of Law, Voldersstraat 3, 9000 Ghent
WHAT: Speakers will address questions such as: Are the notions of religion underpinning the law inclusive enough to attend to today’s diversity of religious ways? If not, can and should these notions be legally “stretched” so as to become more responsive to such diversity? The morning sessions will focus on how law, including human rights law, understands and should understand religion. The afternoon sessions will focus on the ways in which the European Court of Human Rights conceives of and should conceive of religion. Scholars presenting in the afternoon will unpack the notions of religion underlying high-profile freedom of religion judgments (including S.A.S. Lautsi, Eweida and Bayatyan) and examine the extent to which these notions attend and should attend to applicants’ religious experiences.
A limited number of places are still available. Attendance is free, but registration is required. If you would like to attend this seminar please send an email to Lourdes Peroni at firstname.lastname@example.org.
This is the program:
T.M. and C.M. v. Moldova is one of the latest instances of domestic authorities’ passivity in protecting women against domestic violence. At the root of this passivity was a failure to understand the seriousness and extent of the problem and its discriminatory effect on women. This was reflected in misconceptions about both the nature of domestic violence and the reality of many of its victims. In dealing with this failure, the Court issues a strong judgment: (i) it reinvigorates the definition of domestic violence by renewing attention to non-physical forms, notably economic abuse and (ii) it refines the links between domestic violence victims’ vulnerability and the content of State positive obligations. Continue reading
This week, in a divided ruling, the Court rejected the case of Berisha v. Switzerland. By four votes to three, the Court held that the refusal of residence permits to the applicants’ three children – who were born in Kosovo and entered Switzerland illegally – did not violate the parents’ right to respect for family life. In this post, I discuss the Court’s analysis of the best interests of the children involved in the case and show how the analysis fails to live up to this principle.