The Y.Y. v. Turkey case and trans individuals’ gender recognition

This guest post was written by Ivana Isailovic, post-doc researcher at the Perelman Center (Université libre de Bruxelles) and affiliated to the IAP, Human Rights Integration project.[1]

The Y.Y v. Turkey decision deals with the process of gender recognition, which is one of the many pressing legal issues trans[2] communities are struggling with in Europe. In its previous decision, the European Court of Human Rights has found that the State’s failure to modify the birth certificate of a person by recognizing the preferred gender constitutes a violation of the right to private life guaranteed by art. 8. For the first time, in Y.Y. v. Turkey, the Court examines the domestic requirements ­– in this case the sterilization requirement – which are necessary to obtain the legal recognition of the preferred gender.

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

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

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. Continue reading

Occupational Health in the Jurisprudence of the European Court of Human Rights: Brincat v. Malta

This guest blog post was written by Elena Sychenko, Ph.D. student at the University of Catania, Law Faculty, Labour Law Department.

On 24 July, the European Court of Human Rights announced its judgment in Brincat and Others v. Malta (the Brincat case).[1] This case was the result of 21 applications of former workers of the public ship repair yard exposed to asbestos. The Government of Malta was held responsible for breaching its positive obligations to protect the rights to life and the right to respect for private life. A violation of the right to life was found where the death of the employee was the result of exposure to asbestos. Where employees had suffered from different diseases, the Court found a violation of the right to respect for private and family life.

Brincat is a landmark case for Occupational Health in all the countries of the Council of Europe. For the first time, the Court found violations of two rights deduced from articles 2 and 8 that are fundamental to this sphere: the right to access information concerning risks the employee is exposed to and the right to protection from dangerous industrial activities. Continue reading

Making subsidiarity work: Struggling with procedural review – A.K. v. Latvia

The applicant in AK v Latvia is unhappy with the fact that she gave birth to a daughter with Down’s syndrome. She claims that the she was denied access to important medical information in the form of an antenatal screening test owing to negligence of her gynaecologist, in violation of article 8 ECHR. Continue reading

S.A.S. v. France: Missed Opportunity to Do Full Justice to Women Wearing a Face Veil

By Saïla Ouald Chaib and Lourdes Peroni

This week, the Grand Chamber of the European Court of Human Rights published its long-expected judgment in S.A.S. v. France. The case concerns a ban on the wearing of face veils in the public space. Although the outcome of such highly debated cases is always unpredictable, we hoped that the Court would take this opportunity to bring procedural and substantive justice to the women wearing a face veil in Europe.[1] Alas, the Court disappointingly decided the case by granting a wide margin of appreciation to France and by consequently not finding a violation of any of the ECHR provisions invoked, in particular freedom of religion, the right to private life and non-discrimination. At the same time, however, the judgment contains some positive aspects, namely respect for several requirements of what is known as “procedural justice” and departure from previous case law portraying Muslim women as oppressed. In this post, we share our first impressions on what we think are some positive and negative aspects of the Court’s reasoning. Continue reading

McDonald v. the United Kingdom: A step forward in addressing the needs of persons with disabilities through Article 8 ECHR

This guest post was written by Marijke De Pauw, Ph.D. Researcher at the Fundamental Rights and Constitutionalism Research Group (FRC) of Vrije Universiteit Brussel. Her research is part of the research network “The Global Challenge of Human Rights Integration: Towards a Users’ Perspective” (HRI) and concerns the fundamental rights of older persons.

In McDonald v. the United Kingdom, the European Court of Human Rights dealt with a case concerning the reduction in night-time care for an elderly lady. The applicant complained that a reduction in night-time care disproportionately interfered with her right to respect for her private life under Article 8 ECHR. Continue reading