The saga continues … Legal standing for NGOs when de facto representing mentally disabled dying in institutions

By Helena De Vylder

Once again, in the decision in Bulgarian Helsinki Committee v Bulgaria, the ECtHR had the opportunity to rule on the legal standing of an NGO when de facto representing two mentally disabled adolescents, who died in an institution. The ECtHR applied the criteria it established in Centre for Legal Resources on behalf of Vincent Campeanu v Romania and confirmed in Helsinki Committee on behalf of Ionel Garcea v Romania. The Court found that the applicant organisation in Bulgarian Helsinki Committee does not meet the requirement that it must formally be involved in the domestic proceedings having all the rights parties in criminal proceedings enjoy. Unfortunately, the Court does not attach more importance to the ultimate goal of granting legal standing to de facto representatives. In Campeanu, it held that this was in order to prevent allegations of a serious nature from being examined at the international level, with the risk that the respondent state might escape accountability under the Convention.

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Buzadji v. the Republic of Moldova: a welcome development in pre-trial detention case law

Guest post by Catherine Van de Heyning (Dr. LL.M.), researcher at the University of Antwerp and visiting professor of criminal law at UC Leuven-Limburg.

In the Buzadji v. the Republic of Moldova judgment of 5 July 2016 the ECtHR took the opportunity to clarify its case law on the requirement on a judge to give relevant and sufficient reasons for detention. In its established case law, the Court has already developed criteria for the justification of arrest and detention on remand of suspects pending trial. The Court has found a reasonable suspicion to suffice for the initial detention of a suspect. However, the Court has held that after “a certain lapse of time” reasonable suspicion no longer suffices (a.o. Letellier v. France and Idalov v. Russia). Further detention must be justified in addition on one of the other lawful grounds for detention as enumerated in the ECtHR case law and these grounds must constitute relevant and sufficient reasons. The Court requires “special diligence” from the courts reviewing whether these reasons are provided when deciding on the further detention (a.o. Labita v. Italy and Ilijkov v. Bulgaria).

Due to the lack of a more precise time indication and delineation of relevant and sufficient reasons, the impact of the Strasbourg case law on the domestic practice of pre-trial detention has remained limited. In the Buzadji judgment the Grand Chamber indicated that on two points it felt compelled to further develop its case law. As such, this case is a principled outlining of the Strasbourg case law on pre-trial detention and an important guideline to take into account in practice.

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Human Rights Centre submits third party intervention in case concerning LGBT rights activism

The Human Rights Centre of Ghent University[1] has submitted a third party intervention in the cases of Nikolay Alekseyev and Movement for Marriage Equality v. Russia and Nikolay Alekseyev and Others v. Russia. The case concerns the refusal by the Russian authorities to register two LGBT rights organisations because they were considered extremist organisations on account of the allegedly immoral character of their activities. The full text of the third party intervention can be found here, the main arguments are summarized hereunder.

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Polish mayor’s private prosecution of local journalist for insult violated Article 10: Ziembiński v. Poland (No. 2)

By Ronan Ó Fathaigh

The European Court’s Fourth Section has held in Ziembiński v. Poland (No. 2) that a newspaper editor’s conviction for describing local government officials as “dim-witted” and a “numbskull” violated the editor’s Article 10 right to freedom of expression. The judgment may prove decisive for future prosecutions of journalists under article 216(2) of Poland’s criminal code, which makes it a specific offence to “insult” a person “through the mass media,” and carries a possible one-year prison sentence. Tragically, however, the editor, Maciej Ziembiński, passed away two years ago aged 70, and did not live to see the Court’s finding that his conviction violated the European Convention.

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Taddeucci and McCall v. Italy: welcome novelty in the ECtHR’s case-law on equal treatment of same-sex couples

This guest post was written by Dr. Nelleke Koffeman (*)

The Taddeucci and McCall v. Italy judgment of 30 June 2016 is a novelty in the ECtHR’s case-law on equal treatment of same-sex couples. It is the first time that the Court, in finding a violation of the prohibition of discrimination on grounds of sexual orientation (Article 14 ECHR in combination with Article 8 ECHR) in a case where stable same-sex partners do not enjoy the same rights as different-sex spouses, takes into account that those same-sex couples have no access to marriage under the relevant domestic law. It is not that the Court has never before been asked to acknowledge the (indirect) discrimination involved in such cases. Quite the opposite, but, as set out below, it has so far taken a formalistic approach in such cases. The present judgment is thus a clear – and to be welcomed – deviation from previous case-law.

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Ramadan v. Malta: When will the Strasbourg Court understand that nationality is a core human rights issue?

This guest post was written by Marie-Bénédicte Dembour, Professor of Law and Anthropology at Brighton Business School, University of Brighton. (*)

It does not seem an exaggeration to say that the recent judgment in Ramadan v. Malta suggests that citizenship revocation is not generally problematic under the European Convention on Human Rights. How else might one understand the statement according to which ‘an arbitrary revocation of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual’ (para 85)? Strictly speaking, the quoted words appear to indicate that a revocation of citizenship, even when arbitrary, could fail to violate the Convention. How is this possible? One should not have to argue that arbitrary revocations of citizenship are unfathomable in a human rights perspective. The phrasing adopted by the Fourth Section of the European Court of Human Rights is unfortunate, to say the least. So are its reasoning and verdict of non-violation. A change of perspective is needed. Nationality matters enormously – it matters so much that it has to be a core human rights issue, and it is high time the European Court of Human Rights should recognise this.

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Grand Chamber Judgment in Izzettin Doğan and Others v. Turkey: More Than a Typical Religious Discrimination Case

This guest post was written by Dr. Mine Yildirim (*)

On 26 April 2016, the Grand Chamber held, by 12 votes to 5, that there had been a violation of Article 9 ECHR, and, by 16 votes to 1, that there had been a violation of Article 14 taken in conjunction with Article 9 ECHR in the case of Izzettin Doğan and Others v. Turkey.

Relying on Article 9, taken alone and in conjunction with Article 14, the applicants complained that their right to manifest their religion had not been adequately protected in domestic law. It is important to note that their complaints are based both on their claims for public religious services and recognition of their cemevis (Alevi places of worship) as places of worship. They complained of the refusal of their requests seeking, among others, to obtain for the Alevi faith followers the same religious public service provided exclusively to the majority of citizens, who adhere to the Sunni branch of Islam. The applicants maintained that this refusal implied an assessment of their faith on the part of the national authorities, in breach of the State’s duty of neutrality and impartiality with regard to religious beliefs. They also contended that their request for the recognition of cemevis was refused. They further alleged that they had been the victims of discrimination on grounds of their religion, as they had received less favorable treatment than followers of the Sunni branch of Islam in a comparable situation, without any objective and reasonable justification.
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