This guest post was written by Cedric De Koker, academic assistant at the Institute for International Research on Criminal Policy (IRCP), Ghent University.
With its judgment in the case of Gülay Çetin v. Turkey, the European Court of Human Rights (ECtHR) added another chapter to its significant body of detention-related case law. Having to pronounce on the issue of whether the continued detention of Mrs. Gülay Çetin, a retired auditor diagnosed with metastatic gastric cancer, infringed upon the European Convention on Human Rights, the ECtHR held unanimously that the Turkish government had violated article 3 (prohibition of inhuman or degrading treatment), taken alone and in conjunction with article 14 (prohibition of discrimination). Perhaps the most striking feature of the ruling relates to the fact that the ECtHR concluded that the applicant had been discriminated against while she was in pre-trial detention, as she had not been entitled to the same protective measures as convicted inmates with serious illnesses. As it was the first time that the Court explicitly mentioned discrimination between remand and convicted prisoners, the judgment could and most likely will have its repercussions for the administration of prisons.
We were in Strasbourg yesterday to attend the Grand Chamber hearing in the case of Söderman v. Sweden. In this case, formerly known as E.S. v. Sweden, the Human Rights Centre of Ghent University has submitted a third party intervention. We expect the Grand Chamber judgment to become the leading case on positive obligations under Article 8 ECHR. At the hearing, we were excited to hear the lawyers of both the applicant and the Swedish state referring to our third party intervention in their oral submissions (for a podcast of the hearing, see here).
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.
In this second post on the Grand Chamber judgment in X. and Others v. Austria, I will focus on the narrowness of it all: the narrowness of the issue before the Court, the narrowness of the ruling and the narrow approach the majority took to the European consensus. Although I believe the majority should be applauded for taking incremental steps towards extending equal rights to LGBT persons, the approach it takes to the European consensus leaves much to be desired. Indeed, X. and Others provides a perfect example of how the Court sometimes uses the consensus argument to provide a post hoc rationalisation and justification of an outcome it has already reached, rather than as a substantive argument that leads to that outcome.
This guest post – the first in a two-post series on X. and Others v. Austria – was written by Grégor Puppinck*
On the 19th of February, the Grand Chamber of the European Court of Human Rights published its ruling in the case of X and others v. Austria (no. 19010/07), which decided by ten votes against seven, that the impossibility of second-parent adoption in a same-sex relationship is discriminatory when such adoption is possible for unmarried different-sex couples. The reasoning may be thus summarised: If the woman had been a man, the adoption would have been possible, so it must be possible while the woman is not a man in the name of non-discrimination according to sexual orientation.
The two unmarried women, who took action on their own behalf and on the behalf of the child who was a minor, claimed to have suffered discrimination based on their sexual orientation and invoked the right to respect for their private and family life (art. 8) as well as the prohibition of discrimination (art 14). “They submit that there is no reasonable and objective justification for allowing adoption of one partner’s child by the other partner if heterosexual couples are concerned, while prohibiting the adoption of one partner’s child by the other partner in the case of homosexual couples.” (Presentation of facts made by the registrar of the Court.)
It looks like freedom-of-religion season has arrived in Strasbourg. After leaving aside the “freedom to resign” doctrine in Eweida, the Court has just made another move towards greater recognition of the importance of freedom of religion. In Vojnity v. Hungary, the Court clearly recognizes religion as a “suspect” ground of differentiation. As a result – and just like distinctions based on race, sex and sexual orientation – states must give “very weighty reasons” if they wish to justify differences based on religion. In less than a month, the Court has thus put freedom of religion and non-discrimination on the basis of religion on firmer grounds in Strasbourg.
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. Read more…