The European Court of Human Rights has spoken … again. Does Turkey listen?

This guest post was written by Dr Elena Katselli, Senior Lecturer in Law at Newcastle Law School

Thirteen years have elapsed since the European Court of Human Rights’ (ECtHR) judgment in Cyprus v Turkey in which the Court found Turkey responsible for 14 violations of the European Convention on Human Rights (ECHR) and its Protocols. The violations related to 1,485 Greek Cypriots who disappeared during the Turkish military invasion and occupation of Cyprus in 1974; the living conditions of enclaved Greek Cypriots living in the occupied area of Karpas since thereafter; and displacement.[1] Continue reading

Transforming the right to property

Reading Strasbourg case-law on a systematic basis, I always feel uncomfortable when I see the Court’s expansive protection in the field of Article 1 Protocol 1. Basically, that is because I don’t really like the idea of a human right to property for a number of reasons. Firstly, a right to property takes the present distribution of wealth across society for granted, and requires justification for redistributive state action. Thereby it does not question the mechanisms that distribute wealth among individuals, despite the fact that it is clear that maldistribution can both cause or result from human rights violations. By protecting the status quo, the right to property can undermine the transformative potential of human rights.  Secondly, and related, those who have the most property obviously have a larger claim to property protection, disproportionately empowering the most advantaged vis-à-vis the least advantaged. Thirdly, upholding the right to property itself can amount to violations of human rights. Slavery is of course the most shocking example, but also think of how intellectual property rights restrict access to medicines affecting the right to health, or how the right to property can be mobilized to restrict access to fora for social action, affecting the freedom of expression. Fourthly, the right to property does not by itself distinguish between the kinds of property it protects, thereby principally placing the poor man’s means of subsistence on the same footing as the millionaire’s yacht. While it is clear how the former relates to foundational principles of human rights such as human dignity, in the latter case the link seems non-existent. Why should human rights at all care about the millionaire’s yacht?

Should we then do away with the human right to property? Perhaps that’s stretching my fundamental unease with the right to property too far. Surely no one would want to go back to the days of communist Europe. The question thus remains how the right to property can be transformed in such a way as to relate better to what we as human rights lawyers care about. The recent judgment in the case of N.K.M v. Hungary (see Ingrid’s blog post here)  and R.Sz. v. Hungary may indicate the way forward.

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N.K.M. v. Hungary: Heavy Tax Burden Makes Strasbourg Step In

This guest post was written by Ingrid Leijten, Ph.D. researcher and teaching assistant at the Leiden University Faculty of Law, Department of Constitutional and Administrative Law.

The debate on the future of the European Court of Human Rights is often phrased in terms of the individual justice/constitutional justice dichotomy. In the recent case of N.K.M. v. Hungary the tension between both aims once again becomes very clear. In this case the Court held that the property rights of the applicant, who was confronted with a 98% tax over a part of her severance payment, were unjustifiably interfered with. In order to argue why in this specific case individual relief was necessary, however, the Court came up with several arguments that seem to invite future (mis)use by applicants whose interests the Court is probably not willing to protect. Was the Court right in making an ‘exception’ for the individual at hand, or should the probable effects of a perceived change in the Court’s approach to tax issues have prevented it from doing so? Continue reading

The Grand Chamber on hunting rights (once again): It is all about convictions

This guest post was written by Ingrid Leijten, Ph.D. researcher and teaching assistant at the Leiden University Faculty of Law, Department of Constitutional and Administrative Law.

Only a few months ago I took the opportunity to discuss Herrmann v. Germany. In that case the Grand Chamber found a violation of Article 1 of Protocol No. 1 concerning the involuntary membership of a hunting organisation of a small landowner who was opposed to hunting. Together with the three dissenters I was somewhat critical of the Court’s unwillingness to take into account the rationale behind and the particularities of the German hunting system. Its following of the precedent set in Chassagnou and Others v. France left no room for any margin of appreciation in Herrmann. Two weeks ago the Grand Chamber has once more shed its light on the issue of involuntary membership of a hunting organisation. In Chabauty v. France it becomes clear that this kind of interference with a landowner’s property rights is disproportionate per se only if someone is opposed to hunting on ethical grounds, i.e., if it is a matter of convictions. This explains the Court’s straightforward approach in Herrmann, but nevertheless still brings up something to discuss.

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Herrmann v. Germany (GC): the importance of precedent and Strasbourg ‘micromanagement’

This guest post was written by Ingrid Leijten, Ph.D. researcher and teaching assistant at the Leiden University Faculty of Law, Department of Constitutional and Administrative Law.

On 26 June 2012 the Grand Chamber delivered its judgment in the case of Herrmann v. Germany. It found a violation of Article 1 of Protocol No. 1 concerning the involuntary membership of a hunting organisation of a small landowner who was opposed to hunting. The judgment has been commented upon in Germany—where practical consequences and the argument that Strasbourg should not have dealt with this issue in the first place are stressed—as well as elsewhere. My aim is to add something by discussing the importance the Court attached to precedent. The Grand Chamber made it appear inevitable to repeat its earlier conclusion in the case of Chassagnou and Others v. France, that was later confirmed in Schneider v. Luxembourg. But could it really do nothing but ‘follow precedent’ or did it, after all, have a choice? Either way, by entirely focussing on prior case law, what considerations did the Grand Chamber leave out?

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Stummer v. Austria: gradually moving towards a right to an old-age pension for working prisoners?

By Ingrid Leijten.

Ingrid Leijten works as a Ph.D. fellow and teaching assistant at the Leiden University Faculty of Law, Department of Constitutional and Administrative Law. Her research interest lies in the development of the ECHR and the practice of the ECtHR in relation to the Member States’ policymaking.

Stummer v. Austria deals with the affiliation of prisoners to an old-age pension system. After the application was declared admissible, jurisdiction was relinquished in favour of the Grand Chamber (Art. 30 ECHR). The case indeed raises serious questions affecting the interpretation of the Convention. The Grand Chamber’s response to these questions is interesting, and worth reflecting upon.  Continue reading

Şerife Yiğit v. Turkey: The Court did it again!

The first post I wrote for our blog was titled: “Is a more inclusive wind blowing through the Court?”. In this post I discussed the case of Muñoz Díaz v. Spain that came out atthe end of 2009, about the non-entitlement to a widow pension by a women who was married for 29 years, but whose marriage was not seen as legally binding since it was solemnized according to Roma rites. I concluded my post by questioning whether the judgment in Muñoz Díaz  “represents a new wind through the jurisprudence of the court towards minority issues and especially towards legal pluralism” and “if this new wind exists, the question arises whether it will also reach Şerife Yiğit’s case that is still pending before the Grand Chamber”. This case is very similar to Muñoz Díaz, with the difference that here it concerns the non-entitlement of a widow pension to a woman who was only religiously married in Turkey and another difference is that the applicant does not belong to a minority in Turkey. We have been waiting one year in suspense for the answer to the last question. The answer the judges of the Grand Chamber unanimously gave last week was –again- a clear no. Continue reading