We are happy to announce the publication of the book “Shaping Rights in the ECHR – The Role of the European Court of Human Rights in Determining the Scope of Human Rights”, edited by Eva Brems and Janneke Gerards, and published by Cambridge University Press. The book consists of a collection of papers presented at a seminar our research team co-organized together with Prof. Gerards (Nijmegen University) in March 2012 in Ghent.
This is the abstract:
“In fundamental rights adjudication, a court first has to determine whether the interest at stake falls within the scope of the fundamental right invoked. Whether or not an individual interest falls within the scope or ambit of one of the fundamental rights protected by the European Convention on Human Rights determines whether or not the European Court of Human Rights can decide on the merits of a case. This volume brings together a variety of legal scholars in order to examine the scope of fundamental rights. Topics range from the nature of human rights and the real or imagined risk of rights inflation to theories of positive obligations and social and economic rights. It contains contributions of a theoretical nature as well as analytical overviews of the ECtHR’s approach. In addition, comparisons are made with domestic, EU and international law.”
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.
Over the years, the ECtHR has gradually built its jurisprudence according to which Article 8 grants a right to access to information for individuals exposed to health risks caused by polluting industrial activities. The judgment in Vilnes & Others v. Norway has extended this settled case law in three ways. Firstly, the Court deepened the substance of this right to information by holding that in certain circumstances the State’s obligation to provide access to information encompasses a duty to actually provide such information (i.e. even if the individuals exposed to health risks have not been refused access to information). Secondly, the Court broadened the scope of application of this right to occupational health risks. Thirdly, the Court held that information essential to assess health risks has to be provided even if there is scientific uncertainty about the precise nature and extent of these risks.
The Human Rights Centre of Ghent University has expressed its support for the request for referral to the Grand Chamber in the freedom of expression case of Delfi AS v. Estonia. The Human Rights Centre has submitted its considerations in a joint letter to the European Court of Human Rights, signed by an impressive list of 69 media organisations, internet companies, human rights groups and academic institutions.
As indicated in the joint letter to the Court
The [Delfi] case involves the liability of an online news portal for third-party defamatory comments posted by readers on the portal’s website, below a news item. A unanimous chamber of the First Section found no violation of Article 10, even though the news piece itself was found to be balanced and contained no offensive language. The portal acted quickly to remove the defamatory comments as soon as it received a complaint from the affected person, the manager of a large private company.
A few excerpts from the letter to the Court are reproduced below. The full text of the letter can be found here. The full text of the referral request is available here. Finally, a critical post on the Chamber judgment in Delfi AS v. Estoina – written for Strasbourg Observers by Professor Dirk Voorhoof – can be found here.
As we announced earlier, Lourdes Peroni and I have written an article together which analyzes the development of the vulnerable group concept in the Strasbourg case law. I am happy to say that this article has now been published as:
Lourdes Peroni & Alexandra Timmer, Vulnerable Groups: the Promise of an Emergent Concept in European Human Rights Convention Law, 11 International Journal of Constitutional Law (2013), p. 1056-1085 (link is to the full-text article!).
This 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 relation to ECtHR case law, the concept of vulnerability proved to be a rich topic for research. Widening the inquiry beyond “vulnerable groups” to vulnerability more generally, I have written a second piece which has also just been published:
Alexandra Timmer, “A Quiet Revolution: Vulnerability in the European Court of Human Rights”, in: Martha Fineman & Anna Grear (eds.), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate), p. 147-170.
Again, the abstract:
Without occasioning much comment, the European Court of Human Rights is increasingly relying on vulnerability reasoning. This chapter analyses that development. First it discusses the concept of vulnerability and its relationship to human rights on a theoretical level, particularly drawing on the work of Martha Fineman. Through an emphasis on universal vulnerability, Fineman’s work invites a reimagining of the human of human rights law. This chapter then examines and critiques how the Court conceives of vulnerability: it charts who are vulnerable according to the Court, and why.
The ability of vulnerability, the chapter argues, is that it allows the Court to prioritize between different claims. Vulnerability reasoning likewise enables the Court to extend certain positive obligations. Vulnerability considerations are thus at the frontlines of the Strasbourg case law. However, as a social institution the Court is also vulnerable in and of itself. This is a reality that the ECtHR will have to take seriously in order to endure as a supranational human rights court. The Court’s legal reasoning about vulnerability, and the revolutionary potential of that reasoning, is therefore ultimately limited by the Court’s own vulnerability.
This guest post was written by Natalija Bitiukova*
Is it possible that having a discriminatory law allowing civil partnerships only for different-sex couples is better than having no law at all? After the Grand Chamber released its judgment in Vallianatos and Others v. Greece case, Lithuanian human rights advocates have realized that indeed it is. Contrary to a popular view that the judgment could become an easy-win for Lithuanian same-sex couples, it seems that the equal right to enter into a civil partnership will have to wait. Unfortunately, the ECtHR, in naming Greece and Lithuania as the only countries which provide for a form of registered partnership designed solely for different-sex couples, has counted them wrongly. Read more…
Criminal conviction for denying the existence of the Armenian “genocide” violates freedom of expression
This guest post was written by Dirk Voorhoof*. The post is a shortened version of an original contribution by the same author, which first appeared on the ECHR Blog. It is reproduced here, in shortened version, with permission and thanks.
In Perinçek v. Switzerland, the European Court of Human Rights ruled on 17 December 2013, by five votes to two, that Switzerland had violated Doğu Perinçek’s right to freedom of expression by convicting him for publicly denying the existence of a genocide against the Armenian people. On several occasions, Perinçek – at the time chairman of the Turkish Workers’ Party – had described the Armenian genocide as “an international lie”. He had particularly insisted that whatever massacres had taken place did not meet the definition of genocide under international law.
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. Read more…