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

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

Gross v Switzerland: the Swiss regulation of assisted suicide infringes Article 8 ECHR

This guest post was written by Daria Sartori, Ph.D candidate in Criminal Law at Trento University (Italy). She is interested in the relationship between Criminal Law and Human Rights, and she is presently working in Italy and abroad on a research project about the Principle of Legality and the European Convention on Human Rights.

Gross v Switzerland is the first judgment in which a member State’s position on assisted suicide is held to be incompatible with Article 8 ECHR by the European Court of Human Rights.
The Court undoubtedly reached an original and interesting conclusion, albeit by a strict majority of four votes to three. However, the relevance of this judgment is more apparent than real: Gross v Switzerland opens the door to the concrete use of Article 8 ECHR in cases relating to assisted suicide, without implying the acknowledgment of a “right to die” under the European Convention.
Leaving aside any criticism of the European Court’s attitude toward this delicate (and much debated) topic, in this post I wish to highlight a relevant mistake affecting the Court’s reasoning. Continue reading