Adžić v. Croatia: The difficult task that child abduction brings

This guest post was written by Thalia Kruger, Senior Lecturer, Research Group Personal Rights and Real Rights, University of Antwerp and Honorary Research Associate, University of Cape Town.

Adžić v. Croatia is yet another case in the long row of cases about international parental child abduction that hit the role of the European Court of Human Rights. These cases pose a particular challenge to the Court in a very difficult and sensitive domain of family law. Jurists and lawyers in various fora have attempted to find workable solutions by instruments such as the Hague Child Abduction Convention of 1980, the Council of Europe Custody Convention (Luxembourg, 1980), the Brussels II bis Regulation (2201/2003) in the EU, and national legislation. Mediators try to find appropriate ways in which to resolve child abduction issues.

Continue reading

“A great victory for the whole legal profession”

by Inger Høedt-Rasmussen (Copenhagen University) and Dirk Voorhoof (Ghent University)

The Grand Chamber in its judgment of 23 April 2015 in the case of Morice v. France has overruled an earlier finding of non-violation of the right to freedom of expression of a lawyer (Chamber judgment Fifth Section, 11 July 2013). The Grand Chamber found that the applicant lawyer in the newspaper Le Monde had expressed value judgments with a sufficient factual basis and that his remarks concerning a matter of public interest had not exceeded the limits of the right to freedom of expression. Therefore it considered the lawyer’s conviction for defamation of two investigative judges as a breach of Article 10 of the Convention. The Grand Chamber’s judgment defines in an interesting way the role and responsibilities of lawyers in relation to society and in relation to their clients and to the administration of justice. It emphasises that lawyers, although being in a role that differs from the role of journalists, should be able to draw the public’s attention to potential shortcomings in the justice system. In a first reaction in Le Monde, Morice (the applicant) called the judgment “une grande victoire pour l’ensemble de la profession des avocats”.

Continue reading

Moving away from N v UK – Interesting tracks in a dissenting opinion (Tatar v Switzerland)

By Eva Brems

The Court’s case law on the expulsion of very ill persons to their country of origin bothers many. The standard  of ‘very exceptional circumstances’ set in N v United Kingdom (2008) is so high that no applicant to date has passed it. The only individual who has won a case of this type is the applicant in D v United Kingdom in 1997, who was in the final stages of a terminal illness and had no prospect of medical care or family support on expulsion to his home country. As was noted by a recent blogger, many people, both inside the Court and among academic commentators, are of the opinion that this standard should be adjusted.   Continue reading

S.J. v. Belgium: missed opportunity to fairly protect seriously ill migrants facing expulsion

This guest post was written by Sarah Ganty, Ph.D. student at the Institute for European Studies and at the Faculty of Law (Perelman Centre for Legal Philosophy) of the ULB within the Research project ARC “Sous le signe du mérite et de la conformité culturelle, les nouvelles politiques d’intégration des immigrés en Europe”. See also the post she wrote for the Blog of the Berkeley Journal of International Law.

On March 19, 2015, the Grand Chamber (GC) of the European Court of Human Rights (ECtHR) struck out of its list the sensitive case of S.J. v. Belgium on the basis of the friendly settlement between the Belgian Government and the applicant, S.J, mother of three children, who suffers from an advanced stage of AIDS and faced expulsion. Indeed, the Belgian Government ultimately regularized the residency status of the applicant and that of her three children, justified by the “strong humanitarian considerations” of their situation.

Why then write this note on a case that was not eventually ruled on the merits by the GC of the Court and where the outcome looks like a “happy ending”? Continue reading

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.

Continue reading

Appointment of the Court’s Registrar: Towards More Transparency

This guest post was written by Kanstantsin Dzehtsiarou, Senior Lecturer in Law at the University of Surrey.

The Council of Europe has recently announced a vacant position for Registrar of the European Court of Human Rights. For the last ten years, Erik Fribergh has been Registrar of the Court. Before that, he worked as a Deputy Registrar and Section Registrar of the Court. His successful career in the Court lasted for more than 30 years and he clearly represents the institutional memory of the Court. His life in the Court highlights the crucial importance of the Registry of the Court and the position of Registrar for the functioning of the ECtHR. This short comment aims to highlight some preliminary observations on the importance of the position of Registrar and the legitimacy of the process of his or her appointment.

Continue reading

The Cestaro v. Italy Case and the “Prohibited Purpose” Requirement of Torture

This guest post was written by Christina Kosin, LL.M. (Edinburgh) and Ph.D. student and academic assistant within the Network of Excellence for the Law of Civil Security in Europe at the German Police University in Münster, Germany. See also the post she wrote for EU Law Analysis.

The main argument of this comment is that the recent Cestaro v. Italy case shows (once again)[1] that the “prohibited purpose” requirement of torture is not the only decisive criterion in distinguishing the crime from other inhuman or degrading treatment or punishment. This comment is a reaction to the presumption by some legal scholars that the prohibited purpose criterion, explained below, is the most important element of torture and the only element which distinguishes it from other ill-treatment. The comment provides a short introduction to the case and elaborates on the issue at stake. Then, the facts of the Cestaro case are presented followed by a brief summary of and commentary on the Court’s main arguments with regard to the material breach of Article 3 of the European Convention on Human Rights (ECHR).

Continue reading