Strasbourg fails to protect the rights of people living in or at risk of poverty: the disappointing Grand Chamber judgment in Garib v the Netherlands

By Valeska David and Sarah Ganty, PhD researchers at Ghent University and Université Libre de Bruxelles

On November 6th the Grand Chamber of the European Court of Human Rights issued its judgment in Garib v. the Netherlands (Application n° 43494/09). It thereby confirmed the Chamber’s finding that refusing a housing permit to a single mother living on social welfare on account of legislation imposing minimum income requirements to reside in a number of hotspot areas of Rotterdam, did not violate her freedom to choose her residence (Article 2 of Protocol 4 ECHR). While the applicant and our third party intervention invited the Grand Chamber to examine the case also under Article 14 (prohibition of discrimination) read in conjunction with Article 2 of Protocol 4 ECHR, the Grand Chamber declined to do so. Five judges, rightly so, annexed three highly critical dissenting opinions. As we shall show in this post, this is a deeply disappointing judgment in terms of both reasoning and outcome.

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Preventive detention as a “penalty” in the case of Ilnseher v. Germany

By Emilie Rebsomen, Méryl Recotillet and Caroline Teuma (Aix-Marseille University) 

The internment of mentally ill offenders has a long history. The first safety measures were envisaged in the writings of the criminologists of the 18th and 19th century. Since then, various and varied security and safety measures have been introduced, security internment being one of them.

Faced with criminal policies increasingly oriented towards control, prevention or even precaution, security internment for an indefinite period as in the case of Ilnseher v. Germany threatens to spread even further. This is explained by an increasing social demand for justice and psychiatry. In the case Ilnseher v. Germany, a Chamber of the European Court of Human Rights (reaffirmed its position, developed in the Bergmann case, concerning the retrospective preventive detention of convicted murderer placed in a centre for psychiatric treatment. On 29 May 2017, the Grand Chamber Panel accepted Mr Ilsneher’s request that the case be referred to the Grand Chamber. The hearing will take place on 29 November 2017. In this framework, the European Prison Litigation Network was invited by the President of the Grand Chamber to intervene as a third party in this case. Thanks to our partnership with the European Prison Litigation Network, our law clinic Aix Global Justice, had the opportunity to participate in this intervention.[1]

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Difference in Treatment on the Ground of Sex Arising from Penal Policy Issues: Alexandru Enache v. Romania

By Beril Onder, PhD researcher at Ghent University and University of Strasbourg

On 3 October 2017 the Fourth Section of the Court delivered the judgment in Alexandru Enache v. Romania. The case concerned a discrimination complaint under Article 14 read in conjunction with Article 8 of the Convention, regarding a special measure granting women stay of execution of their prison sentences if they were pregnant or had a child under the age of one.[1] The issue concerned the difference in treatment between men and women arising from the penal policy, like the recent Grand Chamber judgment Khamtokhu and Aksenchik v. Russia, as the applicant was refused this stay of execution based solely on his gender. The Court, in both judgments, left a wide margin of appreciation to the State Parties, and supported its conclusion by referring to the international instruments addressing the needs of women for the protection of pregnancy and motherhood. However, both judgments can be considered problematic for different reasons from a perspective of gender stereotypes. Corina Heri, in her comment, already discussed the problems related to gender stereotypes in Khamtokhu and Aksenchik. The following comments will focus on the judgment in Alexandru Enache v. Romania. Continue reading

New book: Integrated Human Rights in Practice. Rewriting Human Rights Decisions

We are glad to present you the recent volume Integrated Human Rights in Practice. Rewriting Human Rights Decisions, with Edward Elgar Publishing (Eva Brems and Ellen Desmet, eds.). The book is the result of a collaborative effort of the Human Rights Integration network with international human rights experts Martin Scheinin, Rhona Smith, Gerald L Neuman, Malcolm Langford and Magnus Killander.

This is the book’s blurb: Continue reading

The Assembly’s row with Russia and its repercussions for the Convention system

By Lize R. Glas, assistant professor of European Law, Radboud University

In early 2014, Russia seized the Crimean peninsula from Ukraine. The annexation has had grave humanitarian consequences and has set in motion a chain of events that is likely to affect the European Convention on Human Rights (Convention) system. The most direct effect is extra pressure on the European Court of Human Rights (Court). Already in July 2016, about 3,000 applications relating to the annexation and the hostilities in Eastern Ukraine were pending before it. Many applications moreover include a request for interim measures. Additionally, Ukraine has brought no less than three inter-state cases against Russia. Another clearly visible effect concerns the applicability of the Convention: Ukraine has declared a state of emergency under Article 15 ECHR, so it can take measures derogating from most Convention rights. Other consequences are less direct or visible; they are the repercussions of a decision of the Parliamentary Assembly of the Council of Europe (Assembly). The Assembly took this decision in order to denounce Russia’s actions in Ukraine.

In this blog, I discuss that decision and its (potential) repercussions for the Convention system.  Continue reading

Non-execution of a pilot judgment: ECtHR passes the buck to the Committee of Ministers in Burmych and others v. Ukraine

By Eline Kindt, PhD researcher Human Rights Centre – Ghent University

The recent Burmych and others v. Ukraine judgment of the ECtHR of 12 October 2017 has thoroughly shifted the institutional balance in the Council of Europe between the Court and the Committee of Ministers. The Court decided to pull itself away from a situation of mass non-execution by Ukraine of both its own national judgments, as well as the Court’s previous pilot judgment of Yuriy Nikolayevich Ivanov v. Ukraine. The Court decided that these cases would be struck out of its list and become the responsibility of the Committee of Ministers, thus leaving thousands of victims without the possibility to bring their case before the Court.   Continue reading

Regner v. Czech Republic: has the European Court of Human Rights forgotten the fair trial rights when national security is at stake?

By Andrea Preziosi, University of Birmingham

On 19 September 2017, the Grand Chamber of the European Court of Human Rights delivered a controversial judgment concerning the extent of fair trial rights in relation to the withholding of information on grounds of national security.

Facts

The case began with an application lodged by Mr Regner, a Czech citizen who had worked for the Ministry of Defence in different high-profile posts and had his security clearance revoked on the basis of information provided by the intelligence service. Continue reading