Fernández Martínez v. Spain: The Grand Chamber Putting the Brakes on the ‘Ministerial Exception’ for Europe?
Recently, the Grand Chamber of the European Court of Human Rights delivered its eagerly awaited judgment in Fernández Martínez v. Spain. The case concerned the refusal to renew the contract of a teacher of Catholic religion and ethics in a public secondary school, because he had allegedly caused a “scandal” when his situation of ‘married priest’ and his membership of the Movement for Optional Celibacy of priests became public knowledge. By a narrow 9-8 split decision, the Grand Chamber ruled that the applicant’s right to private life had not been violated.
Before the judgment came out, I was fairly confident that it would affirm what I have termed the ‘ministerial exception for Europe’ in an earlier post. Now that the judgment is out, I am forced to come to the opposite conclusion. Instead of confirming the reasoning of the Third Section, the Grand Chamber in Fernández Martínez appears to hark back to the reasoning in earlier cases, such as Obst v. Germany and Schüth v. Germany.
Education in prison: right to education only protects access in case of ‘existing’ educational facilities (Velyo Velev v. Bulgaria)
In Velyo Velev v. Bulgaria, the Court found a violation of the right to education (Article 2 Protocol 1) in a case concerning the refusal to allow a prisoner to enrol in a secondary school operating inside the prison. While the judgment should be hailed for explicitly affirming that remand prisoners also enjoy the right to education, it is unfortunate that the Court continues to construct the scope of Article 2 Protocol 1 in a very narrow fashion. As a result the Court fails to provide genuine substance to the right to education in a prison context. Read more…
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. Read more…
This guest post was written by Helena De Vylder. Helena is a Ph.D. Researcher at the Human Rights Centre of Ghent University. Her research concerns admissibility criteria in regional human rights systems.
Apart from the new admissibility requirement – significant disadvantage –, the 14th Protocol contains a number of procedural changes. The competences of chambers and committees have been changed and single judge-formations (assisted by a non-judicial rapporteur) were created and given the competence to take final decisions regarding the admissibility of cases where such a decision can be taken without further examination.
The yearly statistics available on the ECHR-website (Annual Report 2013) suggest that the 14th Protocol did a wonderful job, as regards the speeding up of procedures. The backlog of the ECtHR has decreased enormously in the latest years and the renewed efficiency of the Court thanks to the filtering-mechanisms has been applauded. The single judge-formations contribute massively in this regard. However, the commented case sheds light on the other side of the decisions issued by single judges. These decisions are not published, but we had the opportunity to access one of them when an applicant who had obtained an unsatisfactory decision contacted the Strasbourg Observers. Read more…
This guest post was written by Ronan Ó Fathaigh* and Dirk Voorhoof**
In a victory for free expression, the European Court has ruled that a court-imposed injunction banning a political activist from distributing leaflets targeting a political candidate violated Article 10 of the European Convention. The Court in Brosa v. Germany criticised the German courts for refusing to hold that the leaflet was a fair comment on a matter of public interest, as the threshold for proving fair comment was “disproportionately high.” Read more…
A missed opportunity: how the Court’s judgment is commendable for seeking to protect religious minorities but nevertheless wide of the mark
This guest post was written by Lieselot Verdonck. Lieselot is a Ph.D. Candidate at the Human Rights Centre, Faculty of Law of Ghent University. More information on the author can be found here.
The relationship between State and Church has always drawn much interest. It constitutes an inherently sensitive and political issue, which touches upon one of the foundations of a democratic society and concerns any member of that society, whether religious, atheist or agnostic. Accordingly, the European Court of Human Rights inevitably has to face cases concerning the foundational issue of Church-State relations, such as in Magyar Keresztény Mennonita Egyház & Others v. Hungary. The Court’s decision in this case is, however, remarkable for its general and far-reaching statements that leave not only scholars but also governments guessing about their future application. Read more…
Strasbourg Court fails to adequately protect trade union freedom: secondary strike action only considered to be an ‘accessory’ aspect of Article 11 (R.M.T. v. UK)
According to the Strasbourg Court’s established case law, the right to strike action is protected by Article 11 ECHR (e.g. Enerji Yapi-Yol Sen v. Turkey), which more generally protects the right of trade unions to strive for the protection of their members’ interests (e.g. Demir and Baykara v. Turkey). In the recent case of R.M.T. v. UK, the Court for the first time had to rule on a case concerning so-called secondary strike action, i.e. a strike organized by trade union members in one company in support of a strike initiated in another company. The United Kingdom is one of the few Council of Europe member states – together with Austria, Luxembourg and the Netherlands – in which a total prohibition on secondary strike action is in place. In its judgment of 8 April, the Court nonetheless did not consider such a blanket ban to be contrary to Article 11.