Tarakhel v. Switzerland: Another Step in a Quiet (R)evolution?

This guest post was written by Nesa Zimmermann, Ph.D. candidate and teaching assistant at the University of Geneva, Switzerland (*)

The Court’s recent ruling in Tarakhel v. Switzerland became famous almost before it was delivered. The case has received strong media attention, and some claimed the judgment signified “the end of the Dublin system”. However, the importance of the Tarakhel judgement should not be overrated. For one thing, it remains yet to be seen to what extent the Court’s ruling can and will be applied to other cases. Besides, even though the case has been called a “principled decision in favour of vulnerable persons”, it consists, from a scholarly point of view, of a series of adjustments: a case contributing to the evolution of existing case law rather than a revolution on its own. Continue reading

The application of the European Convention on Human Rights to the case of Leonarda Dibrani

This guest post was written by Georgios Milios*

On October 9 2013, Leonarda Dibrani, a 15-years old Roma girl, was arrested by the French police in front of her teachers and classmates and deported to Kosovo along with her parents and five siblings. Initially, it was argued that the family had left Kosovo some years ago seeking better opportunities but according to Leonarda’s father, the Kosovo story was a lie and the whole family had been living for many years in Italy where almost all of the children were born but had not managed to acquire the Italian nationality. Furthermore, the father argued that they moved to France in 2008 and sought asylum claiming that they all come from Kosovo. The ‘Kosovo lie’ did not work and the whole family was expelled on the grounds that they were residing illegally in France. Continue reading

Forthcoming Publication on Vulnerable Groups in the Court’s Case Law

This post was written by Alexandra Timmer and Lourdes Peroni

Alexandra and I are happy to announce the forthcoming publication of our joint Article “Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law.” The piece will be published in the International Journal of Constitutional Law – I•CON.

In this Article, we critically examine the development and consequences of the concept of “vulnerable groups” in the Strasbourg case law. Our analysis includes a number of high-profile cases, from M.S.S. v. Belgium and Greece, to V.C. v. Slovakia, Alajos Kiss v. Hungary, Kiyutin v. Russia and the recent case of Horváth and Kiss v. Hungary.

The Article was an excellent opportunity to reflect and work together on issues of common interest, such as non-discrimination, equality and vulnerability.

Here 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.

Non-nationals, living conditions and disability: Situating S.H.H. v. United Kingdom within Strasbourg’s Article 3 case-law

This guest post was written by Elaine Webster. Elaine holds a PhD from the University of Edinburgh and is currently a lecturer and director of the Centre for the Study of Human Rights Law at the University of Strathclyde. 

In S.H.H. v. United Kingdom a chamber of the ECtHR, by four votes to three, found that a real risk of inhuman or degrading treatment had not been established and found no potential violation of Article 3 ECHR. The applicant in this case sought and was refused asylum in the United Kingdom. It was argued that, as a result of his severe physical disabilities, return to his home country of Afghanistan would give rise to a violation of Article 3. The core question in this case was which line of the Court’s authorities was most appropriately aligned with the facts in S.H.H.  Continue reading

Françoise Tulkens, indefatigable defender of migrants’ human rights

The Strasbourg Observers are delighted to post this tribute to Judge Tulkens by Professor Marie-Bénédicte Dembour, University of Sussex.

Françoise Tulkens arrived at Strasbourg because she wanted to make a contribution to the development of European human rights law. She had no prior judicial experience but brought to her new office fine legal skills and great personal qualities. Amongst these must be mentioned her passion, generosity, energy, sensitivity, charm, wisdom, sense of justice and unfaltering commitment to human rights. This exceptional combination enabled her to become a key player within the European Court of Human Rights. Her successive internal elections – first as Vice-President of Section, then as President of Section and finally as Vice-President of the Court – testify to the respect in which she has been held by her fellow judges.

Her election as Vice-President is the more remarkable since she is a woman (a fact which should be irrelevant but rarely is) and holds views which are far from mainstream within the Court. To put it bluntly: Françoise Tulkens has been, throughout the fourteen years of her tenure, a resolutely progressive judge within an institution which often reveals deeply, and sometimes worryingly, conservative streaks (as in Palomo Sanchez and Others v. Spain or Austin and Others v. the United Kingdom). She swam indefatigably against the predominant current, often carrying colleagues with her. This short tribute proposes to start pinpointing her tremendously positive influence in an area where reflexes of fear and hostility are not always easily transformed into an ethic of respect towards the human being who faces us; namely, the area of migrants’ rights. Continue reading

Thank you, Justice Tulkens: A comment on the dissent in N v UK

According to HUDOC, Judge Tulkens sat on the panel of 1843 ECtHR judgments, amongst which 217 Grand Chamber judgments. The same source lists as her oldest judgment the article 6 case of Van Pelt v. France on 23 May 2000. As HUDOC – however wonderful – has its imperfections, we cannot know  for certain whether this was actually her first judgment. Yet it would be suitable if it were so, as this judgment already has a (partly) dissenting opinion by Françoise Tulkens, written jointly with Sir Nicolas Bratza. Contrary to the majority, they thought that a violation of the reasonable term requirement should have been found.  So for those who were wondering: yes, she has been this formidable judge from the very beginning: never just following the flow of the majority opinion (whether the majority in the Court or that in society), always checking the case at hand against the fundamentals of what human rights protection is supposed to be about: justice, equality, freedom.  That is why many of us – who consider it our jobs to critically scrutinize the Court’s work for sloppiness on those same fundamentals – so often find ourselves agreeing with her separate opinions.

For this blogging tribute, I chose to discuss a case in which the fundamentals of human rights protection are a lot more prominent than in the above-mentioned reasonable term judgment. It is the Grand Chamber case of N v UK of 27 May 2008, in which the 9 page-long reasoning of the majority is followed by a 12 page dissent, co-authored by Judges Tulkens, Bonello and Spielmann.

Continue reading