An Endeavor Towards More Situational Positive Obligations Stemming from Article 2: Case of Kotilainen and others v. Finland

Guest Blogger Kotilainen and Others v. Finland, Positive Obligations, Right to Life

Elina Pekkarinen is a university instructor and PhD candidate in Tampere University. Her dissertation concerns the contextual interpretation of rights laid down in the European Convention

Introduction

On 17 September 2020, the European Court of Human Rights delivered its judgement in the case of Kotilainen and others v. Finland (application no.62439/12). The ECtHR found that Finland had violated the substantive aspect of Article 2 of the European Convention on Human Rights when the local police refrained from seizing a weapon from a person who subsequently committed a school shooting. The Court was satisfied that the national authorities complied with the requirements emanating from the procedural aspect of Article 2. The rest of the applicants’ complaint, which concerned Articles 5, 6 and 13 of the Convention, was declared manifestly ill-founded.

In Kotilainen and others, the Court emphasised the duty of diligence which poses special obligations to national authorities when they are dealing with matters that include a particularly high risk to life. Moreover, the Court concluded that an obligation to uphold the legislation regulating the lawful possession of firearms does not only require, from the national authorities, that they intervene in activities where the risk to life is imminent, but also in activities that cause concrete suspicions about the compliance of requirements regarding the possession of a firearm.

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Privacy International and others v United Kingdom: Hacking Admissibility Decision and the Risk of ‘Deference Ping Pong’

Strasbourg Observers Admissibility, Privacy International and others v United Kingdom

By Daniella Lock (Doctoral Candidate and Teaching Fellow, UCL Faculty of Laws, University College London)

Last month, the European Court of Human Rights (ECtHR) handed down a decision that the application regarding the compatibility of the exercise of UK hacking powers made in Privacy International and others v United Kingdom was inadmissible. This was on the basis that the applicants had not exhausted domestic remedies. The Court reached this conclusion despite a case having been brought to the UK Investigatory Powers Tribunal (IPT), in Privacy International and Greennet v Secretary of State for Foreign and Commonwealth Affairs and ors, and a fifty-six page judgment being issued on the lawfulness of hacking (referred to ‘Computer Network Exploitation’ or CNE). This post sets out the reasoning of the Court and argues that while the decision itself is understandable, the reasoning underpinning it risks creating a process of ‘deference ping pong’. Deference ping pong – an ingenious phrase gratefully borrowed from Professor Colm O’Cinneide after a discussion on this issue – refers to a process by which the domestic courts and Strasbourg repeatedly defer to each other on key issues, usually with the consequence that substantive scrutiny of the state is ultimately avoided.

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Catch 22: The Interim Measures of the European Court of Human Rights in the Conflict between Armenia and Azerbaijan

Guest Blogger Armenia v. Azerbaijan, Inter-state case, Rule 39

By Prof Kanstantsin Dzehtsiarou (University of Liverpool, Editor-in-chief of the European Convention on Human Rights Law Review)

On 29 September 2020, the European Court of Human Rights (ECtHR or Court) granted interim measures in the inter-state application of Armenia against Azerbaijan related to the conflict in Nagorno-Karabakh. Through these measures the Court demanded Armenia and Azerbaijan not to breach human rights of the civilian population. On 6 October 2020, the Court extended the already broad interim measures to ‘all States directly or indirectly  involved in  the conflict, including Turkey, to refrain from actions  that  contribute to breaches of the  Convention rights of civilians, and to respect their obligations under the Convention’. It was at least the third time that the Court granted such measures in the context of the inter-state cases. Interim measures were also requested and granted in Georgia v Russia and Ukraine v Russia. I commented on the effectiveness of these measures in previous interstate cases here and here. Unfortunately, the current case provides further evidence that the Court’s interim measures in inter-state cases suffer from two key challenges: first, they are vague and their legal value is unclear; second, their impact almost entirely depends on the political reality on the ground. One can argue that the latter challenge can be applicable to every decision of the Court but when interim measures are issued in “the heat of the moment”, the costs of compliance for the parties can be too high.

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Systematic push back of ‘well behaving’ asylum seekers at the Polish border: M.K. and Others v. Poland

Guest Blogger Asylum Seekers, M.K. and Others v. Poland, Rule 39

Francesco Luigi Gatta, Research Fellow, UCLouvain, EDEM

On 23 July 2020, the ECtHR delivered its judgment in the case M.K. and Others v. Poland, concerning the removal of certain Russian families to Belarus, after they had repeatedly and unsuccessfully tried to lodge asylum applications at the Polish border. With an encouraging decision, the Court found – unanimously – multiple violations of the Convention, unmasking a wide State practice of systematic push back of asylum seekers at the borders between Poland and Belarus.

The Court adds a new chapter to its growing case-law concerning border controls, collective expulsions of migrants and push back practises at land borders. For the first time, following the judgment in N.D. & N.T. v. Spain, it explicitly performs the ‘own culpable conduct test’ or the ‘N.D. & N.T. exception’, methodically assessing the applicants’ behaviour at borders. It also provides some insights about individual assessments and interviews to be performed by border authorities.

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Placing gender equality in the workplace at the forefront of social rights in Europe: equal pay and equal opportunities under the scrutiny of the European Committee of Social Rights.

Guest Blogger ECSR, Equal Pay, Women's Rights

By Maria Kotsoni, a PhD Researcher at the Department of Law of the European University Institute

Recently, the European Committee of Social Rights (ECSR) adopted a series of decisions on equal pay and equality of opportunity between women and men in the workplace. This is the first time the ECSR reviewed states’ compliance on these matters in the context of the collective complaints procedure, therefore establishing comprehensive standards of protection.  Following the collective complaints lodged by the non-governmental international organization University Women of Europe, it assessed the compliance with these standards of all the fifteen Member States to the European Social Charter (ESC) that have ratified or acceded to the Additional Protocol providing for a system of collective complaints, namely Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, Slovenia and Sweden. The decisions were adopted on 5 and 6 December 2019 and became public on 29 June 2020.  

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Substantive equality as the driving force behind reasonable accommodations for pupils with disabilities: the case of G.L. v. Italy

Guest Blogger Disability, G.L. v. Italy

By Merel Vrancken (UHasselt)

In G.L. v. Italy, the first section of the European Court of Human Rights decides on yet another case regarding the principle of inclusive education and the right to reasonable accommodations for persons with disabilities. The two most recent cases on inclusive education (Dupin v. France and Stoian v. Romania, decided at a committee level) seemed to have marked a turn in the Court’s appraisal of the right to education and the principle of non-discrimination. With G.L. v. Italy, however, the Court seems to return to its earlier case law, namely that of Çam v. Turkey and Enver Şahin v. Turkey. In the judgment at hand, the ECtHR gets back in line with its promising line of case law on the inclusion of pupils with disabilities and sets a valuable next step in the direction of substantive equality.

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European Court President Spano’s Visit to Turkey and Its Repercussions

Strasbourg Observers European Court of Human Rights

By Hakan Kaplankaya (Former Turkish diplomat, jurist, INSTITUDE member)

Robert Spano, President of the European Court of Human Rights (ECtHR), paid an official visit to Turkey upon the invitation of the Turkish Minister of Justice between 3-5 September 2020. He was accompanied by Saadet Yüksel, national Judge of Turkey and Hasan Bakırcı, Deputy Section Registrar at the Court. In respect to the events and meetings held during this visit, Spano and the Strasbourg Court have been harshly criticized for undermining its independence, neutrality and ethical rules. Thus, it would not be wrong to stress that the reputation of the young and ambitious President of the Court has been considerably damaged at an early stage of his tenure.

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Living with HIV/AIDS in Prison: Segregation and Othering Endorsed by the ECtHR in Dikaiou v Greece

Strasbourg Observers Dikaiou v. Greece, HIV, Prohibition of Torture

By Vandita Khanna and Natasa Mavronicola

In Dikaiou and Others v Greece, the First Section of the European Court of Human Rights (ECtHR) was called upon to determine, inter alia, whether the separate detention of six female prisoners living with HIV/AIDS amounted to ‘ghettoisation and stigmatisation’ in violation of the prohibition of discrimination (Article 14 ECHR) taken together with the right not to be subjected to torture or inhuman or degrading treatment or punishment (Article 3 ECHR). The ECtHR held that Greece had not violated Articles 3 and 14 ECHR. In this short piece, focusing on the question of segregated detention, we consider how the Court’s reasoning obscures, legitimises, and helps perpetuate the stigmatisation of prisoners living with HIV/AIDS, while failing to recognise the dignity-harm of segregated detention. We argue that the Court’s amplification of the ‘othering’ of an already vulnerable group fundamentally contradicts the core values of Article 3 and Article 14 ECHR.

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A right to regularize unlawful residence? Pormes v. Netherlands untangled

Strasbourg Observers Migration, Pormes v. the Netherlands

By Mark Klaassen (assistant professor of immigration law at the Europa Institute of Leiden University)

To what extent can irregular migrants rely on the protection of Article 8 ECHR to regularize their irregular residence? The European Court of Human Rights (the Court) has dealt with this issue before, in different cases with various factual backgrounds. The starting point of the Court has always been – and remains to some extent – that only in exceptional circumstances the state is under an obligation to regularize the stay of an irregular migrant. In my view – which I expressed before in ‘Between facts and norms: Testing compliance with Article 8 ECHR in immigration cases’ – the test to determine whether such obligation exists is unclear and would benefit from clear guidance from the Court.

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The Strasbourg Court Establishes Standards on Blocking Access to Websites

Guest Blogger Bulgakov v. Russia, Engels v. Russia, Freedom of Expression, OOO Flavus and Others v. Russia, technology, Vladimir Kharitonov v. Russia

Atakan Güngördü is a qualified attorney in Turkey, currently pursuing an Adv. LL.M. in European and International Human Rights Law at Leiden University.

On 23 June 2020, European Court of Human Rights (the “Strasbourg Court” or the “Court”) delivered no less than four judgments against Russia (OOO Flavus and Others v. Russia, Bulgakov v. Russia, Engels v. Russia, Vladimir Kharitonov v. Russia) all of which concern the blocking of access to websites. The Court held that Russian authorities had violated the applicants’ right to freedom of expression on the internet, as well as their right to an effective remedy in all four cases.

These four judgments come as an important victory for the protection of online free speech in Russia and set precedents for other Member States to adopt or amend internet laws in line with the Court’s standards.

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Irony in Court: Marina v. Romania

Guest Blogger Freedom of Expression, Marina v. Romania, Right to Respect for Private Life

By Dr Alberto Godioli*

Introduction

Due to its inherent link with elusiveness and ambiguity, humour makes it particularly difficult to draw a line between lawful and unlawful expression. The task of assessing the harm in a joke is notoriously complicated by strategies such as exaggeration, distortion or irony, which are typical of humorous expression in its various forms (from satire to parody). The legal challenges posed by humour become apparent in several cases lodged with the ECHR either by those responsible for a controversial joke (under Article 10), or by those who felt offended by a humorous remark (under Article 8 or 9). The list of humour-related cases handled by the Strasbourg Court is by now quite extensive and diverse – including, among others, satirical paintings depicting Austrian politicians (Vereinigung Bildender Künstler v. Austria), mocking remarks about a brand of potato chips (Kuliś and Różycki v. Poland), obscene cartoons about colleagues (Aguilera Jimenez and Others v. Spain), homophobic jokes (Sousa Goucha v. Portugal) and facetious references to the lifestyle of public figures (Ernst August von Hannover v. Germany).

In short, humour is a frequent feature in Strasbourg jurisprudence regarding freedom of expression; and this is bound to become an increasingly topical issue, due to the growing impact and circulation of offensive jokes in the digital age. On the other hand, as shown by recent scholarship, the Court’s approach to humour is still relatively inconsistent and unsystematic; this is mostly due to the lack of a shared terminology and clear distinctions between different types of potentially offensive humour. In order to tackle this gap, a closer interdisciplinary dialogue is needed between humour studies and the law. My blog post aims to illustrate this point by commenting on Marina v. Romania, a recent case concerning a satirical radio show; while the general outcome of the case is convincing, the Court’s handling of humorous speech is problematic in some respects, and points to persistent flaws in the current approach. Continue reading →

The Lithuanian saga of limiting evidence in trials – the genesis and new cases

Guest Blogger Right to a Fair Trial

By Donatas Murauskas, Assistant Professor at Vilnius University Law Faculty

The European Court of Human Rights continues to deal with cases against Lithuania concerning equality of arms in trials. Earlier cases could be linked to the heritage of the Soviet rule and practices, recent cases are illustrations of increasing reliance on national security in (criminal) intelligence in discovering relevant facts to be used later in national proceedings. In all cases the law or state authorities limit possibilities of one party to challenge some of decisive or at least important evidence in judicial proceedings. The question arises every time – was the measure proportional or not? Continue reading →

Defamation proceedings against Romanian MEP over anti-corruption comments violated Article 10

Guest Blogger Freedom of Expression, Monica Macovei v. Romania

By Ronan Ó Fathaigh and Dirk Voorhoof

On 28 July 2020, the European Court of Human Rights held in Monica Macovei v. Romania that defamation proceedings against a sitting Member of the European Parliament violated the politician’s right to freedom of expression, under Article 10 of the European Convention on Human Rights. The Court reiterated that there is ‘little scope’ for restricting political speech, and faulted the national courts for lacking ‘convincing reasons’ for interfering with an elected official’s expression on a matter of public interest. The judgment is a strong reaffirmation of the Court’s seminal 1992 Castells v. Spain judgment, with the Court applying its strictest test – ‘closest scrutiny’ – to interferences with a politician’s freedom of expression discussing a matter of public interest. It also clarifies that allegations of corruptive practices by members of parliament need to be situated in their context, in particular when they are part of a political debate on how to prevent conflicts of interests and lack of integrity by elected officials. Continue reading →

Mugemangango v. Belgium: finally a Grand Chamber judgment on post-election disputes.

Guest Blogger Mugemangango v. Belgium, post-electoral disputes, Right to Free Elections

By Mathieu Leloup

Post-election disputes and the type of body that should handle them is a topic that comes up before the Court every now and again. In 2010, in the case of Grosaru v. Romania, the Court had indicated that a parliamentary body could not be seen as sufficiently impartial when it had to rule on a dispute about its own election results. After this judgment, it was generally accepted by Belgian constitutional scholars that the system of election disputes in Belgium, which is also parliamentary in nature, was not in line with the Convention standards. It was simply a matter of time until a Belgian case on the issue was brought before the Court.

With Mugemangango v. Belgium that time had arrived. A bit more than a decade after the Grosaru judgment, the Court was going to rule on the Belgian system of election disputes. Continue reading →

The Miners’ Raid of June 1990 and the Questionable Execution of the Judgment in the Case of Mocanu and Others v. Romania

Guest Blogger Implementation judgments, Mocanu v. Romania

By Monica Pirvulescu

On 17 September 2014, the Grand Chamber of the European Court of Human Rights (“ECtHR”) delivered its final judgment in the Case of Mocanu and Others v. Romania (“the Case of Mocanu”). The ECtHR found a breach of the procedural aspects of Article 2 (right to life) and Article 3 (prohibition of torture) in the European Convention of Human Rights (“ECHR”) for lack of an effective investigation, and a violation of Article 6 § 1 (right to a fair trial) for the excessive length of the impugned proceedings. The Case of Mocanu concerned the flaws and delays in the domestic investigations that followed the violent crackdown of the anti-government demonstrations which had taken place in Bucharest in June 1990 (events known as the Miners’ Raid because of the implication of mineworkers in the suppression of the protests). The final judgment in the Case of Mocanu (“the Judgment”) was seen by the victims of the Miners’ Raids and by the Romanian society, in general, as a big victory of European justice and as a hope that those responsible for the violent events of June 1990 would be soon identified and punished. However, today, almost six years since the delivery of the Judgment and two years since the resolution of the Committee of Ministers (Resolution CM/ResDH(2018)229) closed the execution in the Case of Mocanu, the domestic proceedings regarding the investigation of the Miners’ Raids of June 1990 seem still far from being finalized. Continue reading →

The Bitter Price of Being an Inactive Parent: Lyapin v. Russia

Guest Blogger Best interests of the child, Lyapin v. Russia, Right to Respect for Family Life

By Nadia Rusinova, attorney-at-law and lecturer in International private law at the Hague University

On 30 June 2020 the European Court of Human Rights (hereinafter: The Court) delivered its judgment on the case Ilya Lyapin v. Russia. The case addresses the divestment of parental rights from a biological father due to his inaction in exercising his parental responsibilities. This inaction led to a voluntary and prolonged separation from the child, already well integrated into mother’s new family from an early age, and subsequently served as a main reason for the domestic court to fully deprive the father from his parental rights and duties. What is striking – and will be discussed in this post – is the obvious and already acknowledged inflexibility of the Russian laws, the lack of proportionality when taking such drastic measures, and the inconsistent conclusion of the Court that the mere passive behaviour of the father appears to be enough to strip him of all his parental authority and to pose absolute restrictions in the restoration of contact with his son. Continue reading →

Strasbourg v Kafka: Diplomatic Immunity of the Judges of the European Court of Human Rights

Guest Blogger Immunity

By Prof Kanstantsin Dzehtsiarou (University of Liverpool, Editor-in-Chief of the European Convention on Human Rights Law Review)

I have already written about the unprecedented pressure that the Ukrainian authorities place on the sitting judge of the European Court of Human Rights (ECtHR or Court) in my previous blogpost on the issue. A while ago, the National Anti-Corruption Bureau of Ukraine started investigating the fact that the Ministry of Justice of Ukraine accepted a friendly settlement and paid compensation in one of the cases pending before the Court. There was nothing unusual about that case except a significant amount of compensation that would perhaps even have been higher if the friendly settlement had not been concluded. The Anti-Corruption Bureau tried to implicate the husband of the sitting Ukrainian Judge, Georgii Logvynskyi, in this case. Mr Logvynskyi is a well-known lawyer and politician in Ukraine. In my previous blog, I argued that the Court needs to react to these attempts to put the whole Court in disrepute. Now the Court was forced to react as the Prosecutor General of Ukraine requested the ECtHR to lift the immunity of Mr Logvynskyi which derives from the immunity of his spouse – Judge Ganna Yudkivska of the ECtHR. The Court decided not to lift this immunity because of the pressure that the National Anti-Corruption Bureau placed on the witnesses in this case. As far as I know this was only the second time that the question of immunities of the ECtHR judges came before the Court and the first time when the request was denied in full. Continue reading →

Baldassi & Others v. France:  Article 10 protects the right to call for a boycott of goods from Israel

Guest Blogger Baldassi and Others v. France, Comparative Law, Freedom of association

This guest post was written by Robert Wintemute (a Professor of Human Rights Law at King’s College London, who gave some comparative-law advice to the lawyers for the applicants) (*)

Criticism of the policies of a government, and calls for peaceful action intended to put pressure on it to change its policies, would normally be considered political expression protected by Article 10 of the European Convention on Human Rights.  But, since at least 1973, when Israel’s Foreign Minister, Abba Eban, wrote that “[a]nti-Zionism is merely the new anti-Semitism”, attempts have been made to characterise criticism of the Government of Israel’s treatment of the Palestinians as “anti-Semitic” (“anti-Jewish”), and therefore as a form of hate speech.  Describing Israel-Palestine as a situation of “apartheid”, and calling for a boycott of goods from Israeli settlements (built illegally in occupied Palestinian territory) or from anywhere in 1949-67 Israel, is especially likely to trigger this characterisation.  In Baldassi & Others v. France (11 June 2020), the European Court of Human Rights ruled unanimously (7-0) that Article 10 protects the right to call for a boycott of goods from Israel. Continue reading →

Molla Sali v. Greece: a pyrrhic victory following just satisfaction judgment? 

Guest Blogger Just Satisfaction, Molla Sali v. Greece, Prohibition of Discrimination

By Adiba Firmansyah, LLB graduate from Middlesex University Dubai, soon to start as an LLM student at King’s College London

In its principal judgment in Molla Sali v. Greece, delivered on 19 December 2018, the Court held that there had been a violation of Article 14 ECHR in conjunction with Article 1 of Protocol No. 1. The case concerns a complaint by Ms Molla Sali, a widow to a Greek national from the Muslim minority, about the application of Sharia law to an inheritance dispute regarding her husband’s Greek and Turkish properties (a greater analysis of the merits of this case can be found here). The husband’s initial wish, expressed in a will drawn up in accordance with Greek civil law, to bequeath the whole of his estate to his wife (the applicant). However, the Greek courts considered that the will was devoid of effect and instead applied principles from Muslim inheritance law which, in Greece, applied specifically to Greeks of Muslim faith. The applicant was therefore deprived of 3/4 of her inheritance as a result, and the deceased husband’s sisters were subsequently recognised as joint beneficiaries.

The Court reserved the issue of just satisfaction under Article 41 to be decided at a later stage. In its just satisfaction judgment delivered on 8 June 2020, the Court held that it would be appropriate redress for the violations of the applicant’s rights if measures were taken by Greece so as to ensure that she retained the property left to her in Greece – but not in Turkey. It also held that if these measures are not taken within one year, Greece must pay the applicant pecuniary damages.

This judgment should be seen against the backdrop of the allocation of just satisfaction by the Court which has become increasingly controversial. As Abdelgawad notes, ‘Article 41 is probably one of the provisions which have raised the most important difficulties to judges over the years’. Given that the issue of just satisfaction is usually decided with scant legal reasoning and with only occasional allusions to equity and necessity as the foundational principles for the determination of compensation, the Molla Sali case therefore provided an opportunity for the Court to discuss the application of Article 41 in greater depth in a separate judgment.

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Regulating Signals intelligence

Guest Blogger Big Brother Watch and Others v. UK, Grand Chamber, Right to Private Life, signal intelligence

Iain Cameron is professor in public international law at Uppsala University

Introduction

For European states, an important factor pushing towards better regulation of security agencies generally has been the ECHR. The work of “signals intelligence” agencies (collecting metadata and the content of electronic mail and voice communications) came to prominence following the allegations of “mass surveillance” made by former NSA-contractor Edward Snowden in 2013. Compared to law enforcement or internal security agencies, signals intelligence agencies tend to possess much more powerful computing facilities, and they thus have abilities to process and analyse vast amounts of data. Data, both content data (telephone conversations, email etc.) and metadata are collected in bulk and then analysed using selectors. The ECtHR has recently looked at the systems for regulation and control of signals intelligence operating in two states, Sweden and the UK, in the cases of Centrum för Rättvisa v. Sweden (CFR) and Big Brother Watch and others v. UK (BBW) (see blogposts for these cases here and here). Both these cases have been appealed to the Grand Chamber which held an oral hearing on 10 July 2019. A judgment is expected soon. The present blog article will look at four issues of principle at stake in the two cases, namely bulk collection, judicial authorization, notification and discrimination. In each of these issues, there is some tension between the regional (ECHR) and sub-regional (EU) human rights standards applicable to signals intelligence.

There were three basic questions in BBW: these concerned the UK rules on bulk collection, on metadata and on intelligence sharing. The majority of the Court found violations of Article 8 and Article 10 as regards the first two issues. In CFR the issue was more simply whether the Swedish signals intelligence law and practice as a whole satisfied Article 8 and the Court unanimously found that it did. Both cases involved many sub-issues, and were detailed examinations of the foreseeability, accessibility etc. of the laws, and their necessity in a democratic society (which mainly centered around the adequacy of the control systems). The Court applies eight criteria in making its assessment, developed from its case law on targeted interception, and the Weber and Saravia v. Germany case. It declined the offer to develop new or additional criteria, taking into account improvements in technology, and designed for bulk interception specifically (previously discussed by the Venice Commission). Continue reading →

Human Rights Centre submits a third party intervention in case concerning the right to family life of transgender parents and their children

Guest Blogger A.M. and Others v. Russia, Children's Rights, Prohibition of Discrimination, Right to Respect for Family Life, Transgender rights, Uncategorized

Judith Vermeulen is a doctoral researcher and a member of the Law & Technology research group, the Human Rights Centre and PIXELS at Ghent University.

The Human Rights Centre of Ghent University (Belgium)[1] submitted a third party intervention (TPI) before the European Court of Human Rights in the communicated case of A.M. and Others v. Russia. The issue is the restriction of a trans woman’s parental rights in view of her gender identity. In our submission, we argue that this case raises important issues under the right to respect for family life (Article 8 ECHR), taken alone and in conjunction with the prohibition of discrimination (Article 14 ECHR), providing the Court with an important opportunity to clarify the standards in the area of human rights protection of trans persons and children. An overview of the facts as well as a summary regarding our main arguments are provided hereunder. Continue reading →

Beshiri et al. v. Albania: a nail in the coffin for compensation claims for properties nationalized during the communist regime in Albania?

Guest Blogger Article 1 of Protocol No. 1, Beshiri and Others v. Albania, entitlement to restitution

Giulia Borgna, PhD. Attorney-at-law at Saccucci & Partners and Co-Editor at eXtradando

Rivers of ink have flowed on the issue of compensation for former owners whose properties had been nationalized during the communist regime in Albania. Over the past decades, domestic reparation schemes and findings of violation have chased one another in an exhausting role-play on the stage of the European Court: every compensation scheme passed by the Albanian Government in the attempt to solve this systemic and structural problem would, time and again, be repudiated by the Strasbourg Court. The recent inadmissibility decision in the case of Beshiri and Others v. Albania of 17 March 2020 marks a turning point in this seemingly never-ending confrontational drama. The Court decided to pull itself away from this tiresome complex situation and waved the white flag of surrender. Even though the umpteenth revised compensation scheme passed by Albania in 2015 failed to transpose the vast majority of the directions laid down in the pilot-judgment of Manushaqe Puto, the Court sanctioned this legislative scheme in the name of budgetary constraints and subsidiarity, albeit wedging the door open for possible future reconsiderations. Continue reading →

The Grand Chamber Judgment in S.M. v Croatia: Human Trafficking, Prostitution and the Definitional Scope of Article 4 ECHR

Guest Blogger Human Trafficking, S.M. v. Croatia

By Dr Vladislava Stoyanova (Associate Professor, Faculty of Law, Lund University)

With S.M. v Croatia, issued on 25 June 2020, the Grand Chamber delivered its first judgment under Article 4 (the right not to be held in slavery or servitude or to be required to perform forced or compulsory labour) concerning inter-personal harm, i.e. circumstances where one private individual has arguably abused another. The referral of the case to the Grand Chamber has to be viewed in light of the powerful and convincing dissenting opinion of Judge Koskelo attached to the Chamber judgment. An opinion, such as Koskelo’s dissent, was well overdue, given the definitional quagmire that the various Chamber judgments under Article 4 have caused. This quagmire started with Rantsev v Cyprus and Russia (see here) and has continued ever since (e.g. see Chowdury and Others v Greece, for an analysis see here and here). Continue reading →

Remembering Paula Marckx

Laurens Lavrysen Marckx v. Belgium

Earlier this week, we received the sad news that Paula Marckx passed away at the age of 94. Having lived a remarkable life as, amongst others, a journalist, model, pilot and entrepreneur, she will be remembered, first and foremost, for the case that bears her name in Strasbourg. Her death, little over a year after the 40th anniversary of the Marckx v. Belgium judgment, offers an occasion to delve into the history of the case and to reflect on the significance of Paula Marckx’s struggle for equal rights for her daughter Alexandra and the implications thereof for the development of European human rights law. Continue reading →

An Azeri kills an Armenian soldier at a NATO training in Budapest: the ECtHR decides a rare case of State responsibility and presidential pardon

Guest Blogger Makuchyan and Minasyan v. Azerbaijan and Hungary, Right to Life, State responsibility

By Cedric Ryngaert and Kushtrim Istrefi

On 26 May 2020, the European Court of Human Rights rendered a chamber judgment in Makuchyan and Minasyan v. Azerbaijan and Hungary. The case concerns a soldier from Azerbaijan, R.S., who killed an Armenian soldier and attempted to kill another one while on a NATO training in Budapest. R.S. was sentenced by the Hungarian courts to life imprisonment for committing a serious hate crime. In 2012, following a request by Azerbaijan, R.S. was transferred to his home country to serve the rest of his sentence. However, upon his arrival in Azerbaijan, R.S. was pardoned and released. He was promoted in the army and his salaries since 2004 were reinstated. R.S. was appreciated and glorified as a national hero for what he did in Budapest.

The legal issues raised in the case are as unique as the facts. In this analysis, we examine three core issues addressed by the Court. The first issue was whether the acts of R.S. were attributable to Azerbaijan on the ground that the latter acknowledged and adopted them. The Court held that they were not, and accordingly, that Azerbaijan had not breached its substantive obligations under Article 2 ECHR, which protects the right to life. The second issue was whether, in failing to enforce the punishment of R.S., Azerbaijan had violated its procedural obligations under Article 2 ECHR. The Court ruled that it did indeed. The third question was whether Hungary violated the procedural limb of Article 2 ECHR by agreeing to transfer R.S. to Azerbaijan, a question which the Court answered in the negative. The Court’s decisions further develop European and potentially international (human rights) law, and therefore call for some closer analysis. Continue reading →

No Room for Homophobic Hate Speech Under the EHCR: Carl Jóhann Lilliendahl v. Iceland

Guest Blogger Carl Jóhann Lilliendahl v. Iceland, Freedom of Expression, hate speech

By Giulio Fedele (University of Rome “La Sapienza”, giulio.fedele@uniroma1.it)

Hate-speech against sexual minorities has become a pressing issue for the ECHR. Online media and social platforms boosted the possibilities one has to express both personal opinions and hateful comments, thus making it harder for the Strasbourg Court to draw the line of the protection afforded by the ECHR. As it is well known, freedom of expression (Article 10 ECHR) is one of the few rights of the Convention that comes with “duties and responsibilities”, especially when such expressions conflict with “the rights of others” (Article 10 § 2). Nevertheless, the Court has constantly emphasized that the Convention protects various ideas, regardless of their power to “offend, shock or disturb”, thus requiring a certain threshold of graveness in order to lawfully restrict this right. The case commented in this post, the decision in Carl Jóhann Lilliendahl v. Iceland of May 12th 2020, communicated on June 11th 2020, provides an example of the rigid viewpoint recently adopted by the Court towards expressions that amount to homophobic hate speech, seen as falling outside the scope of Article 10. The Court struck out the application of Mr. Lilliendahl, a 74-year-old convicted for hateful online comments about homosexuality, for being manifestly ill-founded. The judgement is closely related to the case of Beizaras and Levickas v. Lithuania (judgement – blog post), previously issued in January 2020, where the Court required the responding State to investigate online homophobic comments promoting violence. In this regard, the decision of the Court in Lilliendahl is of particular interest since it contributes to the development of the Court’s radical disapproval towards homophobic hate speech. It also highlights the coherent application of different principles of the Convention aiming at the protection of vulnerable groups from expression of hatred and intolerance. Continue reading →

Event Announcement: Conference “The ECHR turns 70: Taking Stock, Thinking Forward” postponed to 24-26 November 2021

Strasbourg Observers Uncategorized

We are delighted that our call for papers has attracted a huge interest from all over the world and we would like to thank everyone who submitted an abstract.

In view of the Corona crisis, we are moving the Conference to 24-26 November 2021. This will enable our participants to meet face to face which we believe will add to the discussion and the overall enjoyment of those attending the event.

We still want to celebrate the 70th anniversary of the Convention in November 2020 and are therefore organising a smaller, bespoke, event on the original date: 20 November 2020. In particular, we are delighted that the European Court of Human Rights’ President, Judge Spano, and former President of the Court, Judge Sicilianos, will be in conversation with the Ghent Human Rights Centre’s Director, Professor Eva Brems. This will be streamed online.

Further information on both this celebratory event and the conference will be published in due time on this blog. You can also visit the conference website.

 

The Recent ECtHR Judgment Kövesi v. Romania. Reactions of Romanian Authorities and Implications regarding the Rule of Law

Guest Blogger Freedom of Expression, Kövesi v. Romania, Right to a Fair Trial

By Dragoș Călin

In the recent judgment in the case Kövesi v. Romania (application no. 3594/19) the European Court of Human Rights held, unanimously, that there had been a violation of Article 6 § 1 (right to a fair trial) and Article 10 (right to freedom of expression) of the European Convention on Human Rights regarding the former anti-corruption directorate chief prosecutor Laura Codruța Kövesi, now the first European Public Prosecutor.

In fact, in February 2018, the Minister of Justice, Mr. Tudorel Toader, proposed that Kövesi be removed from office, referring, among other things, to three Constitutional Court decisions adopted in connection with the activity of the National Anti-Corruption Directorate (DNA) and to public statements she had made. The Section for prosecutors of the Superior Council of Magistracy (SCM) refused by a majority to endorse her dismissal, largely rejecting the Minister’s criticisms of the prosecutor and finding no evidence that her management had been inadequate. In April 2018 the President of Romania, Mr. Klaus Iohannis, refused in turn to sign the dismissal decree, which prompted a complaint to the Constitutional Court (CCR) by the Prime Minister. Continue reading →

(One More) Engaged Father(s) Before the ECtHR: Uzbyakov v Russia

Guest Blogger Right to Respect for Family Life, Uzbyakov v. Russia

By Alice Margaria (Research Fellow, Department of ‘Law & Anthropology’, Max Planck Institute for Social Anthropology)

Fathers who want to be or remain involved in their children’s lives have become frequent applicants before the ECtHR. Underlying many of their complaints are national measures reflecting a ‘conventional’ understanding of fatherhood, where paternal care is attached scant or no relevance. Such understanding lay also at the roots of the decisions of Russian courts to reject Mr Uzbyakov’s attempts to be reunited with his youngest daughter who had been adopted by third parties, after her mother’s death. In dealing with the resulting application under Article 8, the ECtHR brings its contribution to ongoing conversations on what makes someone a (legal) father. Next to biology and the nature of the father-mother relationship, ‘new’ elements are attached weight in the Court’s reasoning: in particular, Mr Uzbyakov’s actual behaviour towards his children and his promptness in bringing legal actions in view of having his daughter returned. This judgment (4 May 2020) offers therefore a clear illustration of the (re)construction of fatherhood that is quietly taking place within the Court’s jurisprudence under Article 8 (alone or in conjunction with Article 14). Continue reading →

Advisory Opinion No. 2: a Slightly Bigger Rodent

Laurens Lavrysen Advisory Opinion, Protocol No. 16

Little over a year ago, I wrote a blog post discussing the Advisory Opinion No. 1 issued under Protocol No. 16, with the title “The mountain gave birth to a mouse”. Last week, the Grand Chamber of the European Court of Human Rights give birth to Advisory Opinion No. 2 “concerning the use of the ‘blanket reference’ or ‘legislation by reference’ technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the offence and the amended criminal law”, requested by the Armenian Constitutional Court. After a brief examination, my preliminary conclusion is that, this time, we’re dealing with a slightly bigger rodent – perhaps a rabbit but certainly not a capybara. In this contribution, I will discuss the new Advisory Opinion, focusing in particular on what further lessons can be drawn from it. The key takeaway from this blog post, compared to its predecessor, is that it provides a somewhat more meaningful contribution to the development of the case law. However, the messages given by the Court, regarding the kinds of questions it wants to respond to, are unlikely to spark a lot of enthusiasm among domestic courts to make use of the Advisory Opinion mechanism, potentially thwarting Protocol No. 16’s objective of encouraging judicial dialogue. Continue reading →

Social media and applications to the ECtHR: connecting people in the name of human rights?

Guest Blogger Applicant Procedure, Asady and Others v. Slovakia, Social networking

By Francesco Luigi Gatta, Research Fellow, UCLouvain, member of EDEM (Equipe droits européens et migrations)

In the era of the internet, social media and e-mails, the Strasbourg Court has been called to keep up with these ‘new technologies’. The ECtHR itself, for example, has an official Twitter account, used to give information and updates to the public. During the Covid-19 emergency, moreover, telework and electronic communication have enabled the Court to continue its essential activities (see the ECtHR’s press release: here and here).

Despite its undeniable usefulness, at the same time the use of internet has raised issues in terms of compliance with human rights. The Court has been dealing with an increasing number of questions relating to the freedom of expression, the right to respect for private life or the prohibition of discrimination, thereby developing its ‘new technologies’ case-law. Within this context, the social media-human rights nexus has also come to the attention of the Strasbourg judges, involving various issues such as hate speech (e.g. Beizaras and Levickas v. Lithuania, which concerned the discrimination, on the grounds of sexual orientation, of two men because of the authorities’ refusal to investigate homophobic comments posted on Facebook. For an analysis of the judgment, see here; for the issue of offensive comments on-line, see here).

But social media may have a direct impact on human rights also in terms of access to the ECtHR, as they may be used as a medium to lodge an application and/or to establish and maintain contact between the applicant and their representative. Accordingly, the Court has dealt with social media not only on its merits, but also from a procedural point of view, assessing the use of such modern and informal means of communication with regard to the admissibility of an application.

The topic of social media in the litigation before the ECtHR is addressed in this blogpost from two angles: the admissibility of the use of social media as a means to initially lodge an application to the Court (i), and to subsequently maintain the lawyer-applicant contact during the proceedings (ii). In each case, the legal framework is first briefly outlined, then some examples are provided. These are drawn from the ECtHR’s migration-related case-law, as situations involving migrants may typically pose major issues, given their often vulnerable and precarious conditions, for lawyers in terms of maintaining contact with the applicants. Continue reading →

Pedersen et al v. Norway: Progress towards child-centrism at the European Court of Human Rights?

Guest Blogger Best interests of the child, Children's Rights, Pedersen et al v. Norway, Right to Respect for Family Life

By Katre Luhamaa and Jenny Krutzinna, researchers at the Centre for Research on Discretion and Paternalism (University of Bergen)

Introduction

In February this year (2020), the European Court of Human Rights (ECtHR, Court) delivered two further judgments relating to the Norwegian child protection system (Hernehult v. Norway and Pedersen et al. v. Norway). In both of these, the ECtHR concluded that Norway violated the right to respect for family life (Article 8) when implementing child protection measures. This analysis focuses on Pedersen et al. v. Norway, where the Court addressed the issues of adoption and post-adoption contact.

National adoption proceedings are often hidden from public scrutiny. Indeed, research into the legal practice of eight European states showed that there are minimal accountability measures available in these cases (Burns et al. 2019). Thus, the cases that face the international scrutiny of the ECtHR give us a rare insight into the national argumentation and practice and reveal the complexity of these public care measures.

Continue reading →

Strasbourg Observers has got a new logo, we hope you like it!

Strasbourg Observers Anniversary Symposium

Dear readers,

Last month, we celebrated our tenth anniversary. Now that our blog is entering its second decade, we decided that it was time to give it a brand new, more modern logo by way of a birthday present – a first step in the restyling of our website. We’re happy to be able to present the new logo to you today (see the top of the page), we hope you like it as much as we do! As with the old logo (see below), the eye in the logo symbolizes the diverse lenses through which our bloggers approach the Strasbourg case law.

With our new logo, we also plan to increase our online visibility. For this purpose, we also created a Strasbourg Observers twitter page. Please follow us if you want to stay informed on the publication of new blog posts via that medium.

Blog9

 

Announcement: Webinar “Human Rights of Migrants, COVID 19 and the ECHR” (2 June 2020)

Strasbourg Observers Covid-19

We’re looking forward to the fourth webinar from the #HRvsCOVID series on 2 June 2020 (5 pm CET, 4 pm UK time). The webinar will address the question of the human rights of migrants in the context of COVID-19. Here is the announcement of the upcoming webinar:

 Human Rights of Migrants, COVID 19 and the ECHR 

Webinar 

2 June 2020

5 pm CET/4 pm BTS 

Continue reading →

The ECHR and the right to have a criminal record and a drink-drive history erased

Guest Blogger Gaughran v. the United Kingdom, Right to Private Life, Trajkovski and Chipovski v. North Macedonia

By Jurij Toplak

The ECHR’s Article 8 guarantees a right to have data related to criminal procedures reviewed and, after some time and in most cases, removed. In this blog post, I will first summarise the case law of the European Court of Human Rights (ECHR or “the Court”) on the retention, review, and removal of data stored during a criminal procedure and the data on convictions, generally known as “criminal records”. I will focus on two judgments, issued on 13 February 2020. They are Gaughran v. the United Kingdom and Trajkovski and Chipovski v. North Macedonia. Then I will present and analyse cases currently pending before the Court and issues on which the Court will decide shortly. Continue reading →

Access to healthcare and social distance during COVID pandemic cannot stop at the prison gate

Guest Blogger Covid-19, Prisoners

By Maïté De Rue

Because they are often very populated places with poor living conditions, prisons present a high risk of contamination in a period of pandemic such as COVID-19. A number of countries have taken measures to decrease pressure on penitentiary institutions by releasing prisoners or decreasing the number of new arrivals. This approach is with no doubt an essential one, especially in light of overcrowding that characterizes many prisons around the world. However, this is not the only measure that States must take to respond to the health crisis, as many people will stay in prison. They have also the duty to organize the protection of health and life of prisoners.

What does such obligation concretely entail when facing a pandemic? The norms and standards developed by the Council of Europe, and in particular by the Court and the European Committee for the prevention of torture (CPT), and by the United Nations can help to answer this question and to define the main duties that define State obligations with regards to protecting prisoners against COVID-19. Continue reading →

ATV ZRT v. Hungary: a missed opportunity to address Hungary’s oppressive Media Act

Guest Blogger ATV ZRT v. Hungary, Freedom of Expression

Guest Blogger: Nina de Puy Kamp, Paralegal at Leigh Day Solicitors, London UK*

Hungary’s Media Act 2010 (the Act) garnered much criticism for its chilling effects on free speech (UN, OSCE, EU, HRW).  The Act establishes a media regulator (appointed by the ruling party) to inter alia prohibit and impose fines for ‘imbalanced coverage’ and restrict non-disclosure rights of journalistic sources. ATV ZRT v Hungary concerned sections 12(3) and (4) of the Act which prohibits media service providers from adding ‘any opinion or evaluative explanation to the political news’ without ‘distinguishing it from the news [itself]’.  In its judgement, the Court expresses concern about the legal certainty of these provisions.  Nevertheless, it veers away from ruling on the Convention-compatibility of sections 12(3) and (4) of the Act.  Instead, the Court opts for a narrow ruling, finding a violation of Article 10 on the facts without triggering much needed legislative change. Continue reading →

Herd Immunity and Lockdown: The Legitimacy of National Policies Against the Pandemic and Judicial Self-Restraint by the ECtHR

Guest Blogger Covid-19

By Dr Vassilis P. Tzevelekos, Senior lecturer in Law, University of Liverpool School of Law and Social Justice; Editor-in-chief of the European Convention on Human Rights Law Review

The ongoing pandemic and the measures adopted to protect human life/health in response to the coronavirus seriously affect the enjoyment of fundamental human rights. The COVID-19 outbreak has led a number of states to derogate from their international human rights obligations. Other states have not (yet) formally derogated, but they have passed emergency legislation restricting rights through the usual means that are available within their domestic legal orders (for instance, regarding the author’s home country, see Karavokyris). This trend raises a number of interesting questions as to whether emergency laws amount to an unnotified, de facto derogation or whether states should declare a state of emergency (Greene, Scheinin). More generally, questions regarding the modalities (Istrefi, Holcroft-Emmess) and the lawfulness of derogations have arisen. Irrespective of whether restrictions to qualified/derogable human rights are made on the basis of a derogation clause contained in an international human rights instrument (such as Article 15 ECHR) or through the habitual route of ‘everyday life’ limitations, in both cases restrictions must ultimately satisfy the proportionality test. Proportionality is thus a common denominator. Continue reading →

Reaching the dead-end: M.N. and others and the question of humanitarian visas

Guest Blogger Asylum Seekers, Jurisdiction, M.N. and Others v. Belgium, Non-refoulement

By Moritz Baumgärtel

M.N. and others v. Belgium confronted the ECtHR with the question whether Article 3 of the ECHR places an obligation on State Parties to provide short-term humanitarian visas in their foreign embassies and consulates to potential asylum seekers. The Court, assembled in its Grand Chamber, found the case to be outside the jurisdiction of the Convention and thus inadmissible. While many will look at this outcome with disappointment, it is above all expected. This post provides an initial evaluation focusing on the strategic merits of the case, the issue of extra-territorial jurisdiction, and the broader question of legal pathways to asylum. The argument, in short, will be that this decision may offer a chance to come to the overdue realization that the creation of such pathways is a political question, the answer to which cannot currently be found in European human rights law. Continue reading →

‘Tell me your story, but hurry up because I have to expel you’ – Asady and Others v. Slovakia: how to (quickly) conduct individual interviews and (not) apply the ND & NT “own culpable conduct” test to collective expulsions

Guest Blogger Asady and Others v. Slovakia, Migration, ND and NT v. Spain

By Francesco Luigi Gatta, Research Fellow, UCLouvain, member of EDEM (Equipe droits européens et migrations)

On 24 March 2020, the ECtHR delivered its judgment in Asady and Others v. Slovakia, which concerned the expulsion to Ukraine of a group of Afghan nationals. With a controversial ruling (passed by a slight majority of 4 votes to 3 and accompanied by dissenting opinions) the Court declared that there had been no violation of the prohibition of collective expulsion under the terms of Article 4 of Protocol 4 ECHR.

The judgment is relevant for two reasons. First, it provides some (worrying) clarifications regarding the individualised examination of an alien prior to the expulsion, focusing on the conditions of the individual interview. Second, coming shortly after the Grand Chamber’s ruling in ND and NT v. Spain, it gave the Court an opportunity to reflect on the applicability of the exception of the “own culpable conduct” developed therein and to measure its impact on a case of collective expulsion at land borders. As it will be explained, however, this “hot potato” was only dealt with in the dissenting opinion and not by the Court, which avoided expressing itself on that point. Thus, it remains still unclear whether and how the new exception relates to the procedural test of the individualised assessment required by Article 4 of Protocol 4.

In general, Asady adds a new chapter to the fast-growing case law concerning this provision. After remaining ‘dormant’ for quite some time, it now represents a “rising star” in the migration-related litigation in Strasbourg, to such an extent that, basically, all the States forming the perimeter of the EU external borders have been involved in potential cases of collective expulsions. While initially the Court dealt with border practices aimed at tackling maritime migratory flows (e.g. Hirsi, Sharifi, Khlaifia), following the refugee crisis, it is now being called to assess the compatibility with the Convention of those conducted at land borders, including the so-called push backs. We will see if Asady will pave the way for similar decisions in cases involving the Eastern European borders which are pending against Croatia, Poland, Hungary, Latvia. Continue reading →

Indiscriminate Covid-19 location tracking (Part II): Can pandemic-related derogations be an opportunity to circumvent Strasbourg’s scrutiny?

Guest Blogger Covid-19, Right to Private Life

By Ilia Siatitsa and Ioannis Kouvakas

Yesterday, we argued that blanket mobile phone location tracking measures that aim at containing the spread of the Covid-19 pandemic cannot be regarded as strictly necessary due to their indiscriminate nature and the existence of less intrusive alternatives with potentially similar effectiveness. In this second blog post, we reflect on whether states could derogate from Article 8 in order to impose indiscriminate location tracking.

As of 24 April 2020, ten states, i.e. Albania, Armenia, Estonia, Georgia, Latvia, Moldova, North Macedonia, Romania, San Marino and Serbia have officially derogated from their obligations under the European Convention on Human Rights (ECHR) citing the public health emergency posed by the pandemic, while a domestic court has also attempted to do so on behalf of the United Kingdom! Six of these states Albania, Estonia, Georgia, Latvia, North Macedonia and Romania – have explicitly included Article 8 (or the respective constitutional right) in the list of Articles they have chosen to derogate from. Continue reading →

Indiscriminate Covid-19 location tracking (Part I): Necessary in a democratic society?

Guest Blogger Covid-19, Right to Private Life

By Ilia Siatitsa and Ioannis Kouvakas

In his recent interview on The Intercept, Edward Snowden questioned whether the measures implemented by authorities amid the pandemic are necessary to safeguard people, as well as, whether the pandemic is seen by governments as just another opportunity to make us acquiesce to mass surveillance. In a scramble to track, and thereby stem the flow of new cases of Covid-19, governments around the world are rushing to track the locations of their populace. One way to do this is to leverage the metadata, including location data, held by mobile service providers (telecommunications companies) in order to track the movements of a population, as seen in Italy, Germany and Austria, and with the European Commission.

This is the first of two blog posts that will examine whether indiscriminate location tracking could ever be justified under the Convention, in light of the global pandemic. Continue reading →

Blog Symposium “Strasbourg Observers turn ten” (6): S.A.S. v. France: an ongoing learning experience

Saïla Ouald Chaib Anniversary Symposium, S.A.S. v. France

In February, not long before we all went in lockdown, I attended an event with civil society organisations in Brussels concerning litigation and advocacy strategies. One of the organizers approached me as she recognized my name from the Strasbourg Observers blog and she explained how the series we published on the case of S.A.S. v. France helped her to understand the case more deeply. Little did my colleagues and I realize, I thought, how broad our readership would become, when we enthusiastically founded the Strasbourg Observers blog 10 years ago. A readership, which includes scholars, practitioners and civil society organisations. I am very grateful for that and for the work of my colleagues who are keeping the blog going these days.

Not long after that encounter, I was asked by my colleague Claire Poppelwell to write a reflection on the post I co-authored with dr. Lourdes Peroni on the S.A.S. case back in 2014. This commitment took me on a trip down memory lane Continue reading →

The end of the Interlaken process: A (yet another) missed opportunity to guarantee the long-term future of the ECtHR?

Guest Blogger CDDH, Committee of Ministers, Interlaken Declaration

This post was written by Stefanos Xenofontos, PhD Researcher at Birmingham Law School

The Steering Committee for Human Rights (CDDH) has recently submitted its contribution to the evaluation of the Interlaken process for the reform and future of the European Court of Human Rights (ECtHR or ‘the Court’). Building upon its assessment in the 2015 report on the matter, the CDDH’s latest report, signals the end of a decade-long reform process, at least at a technical level. The ECtHR has pledged to reply to the Report in 2020 (See, Foreword by President Sicilianos). Despite its importance, however, the CDDH’s Report did not attract much (academic) attention to date – something that the present post seeks to compensate. In what follows, after presenting the main conclusions reached by the CDDH, I argue that a rather conservative approach regarding the framework of the ongoing reform process remains apparent. In other words, the CDDH’s primary focus is on sustaining the current status quo of the European Convention on Human Rights (ECHR) system while disregarding any other possible alternative reform outside this existing framework. In this regard, I question whether the current reform framework, and measures adopted within it so far, have been sufficient in addressing and/or resolving the underlying challenges facing the ECtHR. The post concludes that in the absence of a clear determination of what the future role of the ECtHR should be, in a way that best reflects its regional, supranational and subsidiary character, the root causes of the Court’s challenges will continue to be overlooked and its viability and long-term effectiveness will be difficult to achieve.

Continue reading →

Announcement: Webinar “The State’s positive obligations under IHRL during the coronavirus outbreak” (5 May)

Strasbourg Observers Covid-19

After thought-provoking webinars on “Human Rights in the Times of Coronavirus” and “Council of Europe: The Conscience of Europe in a Time of Crisis” (recorded versions of which are available here and here), next week a third webinar in the series will address the role of positive obligations in the context of Covid-19. The webinar takes place on Tuesday 5 May at 3 pm UK time, 4 pm CET. Here is the announcement:

The State’s positive obligations under IHRL during the coronavirus outbreak

Webinar

5 May 2020

3pm (UK time) Continue reading →

Refusal to give access to ‘confidential’ information about politicians violated NGO’s Article 10 rights

Guest Blogger Access to information, Centre for Democracy and the Rule of Law v. Ukraine, Magyar Helsinki Bizottság v Hungary

By Ronan Ó Fathaigh and Dirk Voorhoof

On 26 March 2020, the European Court of Human Rights unanimously found that a refusal by the Ukrainian authorities to give a non-governmental organisation (NGO) access to information about the education and work history of top politicians as contained in their official CVs, filed as candidates for Parliament, violated the NGO’s right of access to public documents under Article 10 ECHR. The Court in Centre for Democracy and the Rule of Law v. Ukraine, highlighted that it was the first case from Ukraine on access to information since the Grand Chamber’s seminal 2016 Magyar Helsinki Bizottság v. Hungary judgment, and that it raised ‘novel’ issues for Ukraine’s authorities and courts. This judgment, delivered during the Covid-19 pandemic, clearly illustrates how important it is, more than ever, that the Court applies strict scrutiny under Article 10 in cases on access to public documents, recognising the importance of transparency on matters of public interest. Continue reading →

Blog Symposium “Strasbourg Observers turn ten” (5): Daring to think – the spirit of human rights

Guest Blogger Anniversary Symposium, Hirsi Jamaa and Others v. Italy, Migration

By Marie-Bénédicte Dembour

Have the Strasbourg Observers really been running only for ten years? On receiving the invitation to celebrate this anniversary, my mind travelled back to the time before your emergence, and I felt rather isolated in my critical approach to the study of the European Court of Human Rights. Long before I joined Ghent’s Human Rights Centre last October, you have provided me – and no doubt others – with a sense of ‘home’. With this post I want to acknowledge my immense gratitude. I shall do so not by tracing the case law since Hirsi Jamaa and Others v Italy but by reflecting upon how my two posts on this case of 2012 were differently read. My point will be to highlight how the Strasbourg Observers have created an essential space for actively engaging and debating what the spirit of human rights might or should entail.

Continue reading →

Blog Symposium ‘Strasbourg Observers turns ten” (4) Wedging the Door? The Paposhvili Opening Three Years Later

Lourdes Peroni Anniversary Symposium, Paposhvili v. Belgium, Prohibition of Degrading Treatment, Savran v. Denmark

Lourdes Peroni, Lecturer in Human Rights, Sheffield Hallam University, UK

I am thrilled to be part of this Blog Symposium to celebrate the 10th anniversary of the Strasbourg Observers with some reflections on the memorable Grand Chamber judgment in Paposhvili v. Belgium. In December 2016, amidst a growing number of dissenting voices pushing for change within the Court, Paposhvili came to soften the restrictive application of the high Article 3 threshold that had prevailed in cases concerning the expulsion of seriously ill migrants. The pre-Paposhvili approach meant that, in practice, Article 3 protection was offered to this group of applicants only in very exceptional cases, namely in cases in which applicants were close to death at the time of expulsion.

Continue reading →

The right to education in Transdniestria seven years after Catan and Others v. Moldova and Russia: are we there yet?

Guest Blogger Catan and Others v. Moldova and Russia, Right to Education, Transdniestria, Uncategorized

By Linda Hamid, Research Fellow at the Leuven Centre for Global Governance Studies – Institute for International Law, KU Leuven

On 4 December 2019, during a research stay in the Republic of Moldova, I travelled to the village of Doroțcaia, where I visited the ‘Ștefan cel Mare și Sfânt’ lyceum and met with the principal, Ms Eleonora Cercavschi. Until August 2002, the school had been situated in Grigoriopol, a small town in the Moldavian Republic of Transdniestria (MRT or Transdniestria), which is a breakaway region in Moldova that declared independence in 1991, but has not been recognized by the international community. However, in the wake of events that will be described below, the school was evacuated from its premises by MRT ‘police’ and forced to relocate 20 km away, in Moldovan-controlled territory. As can be gathered from this post’s title, the Grigoriopol lyceum is one of the Romanian-language schools in Transdniestria concerned by the landmark European Court of Human Rights (ECtHR or the Court) Grand Chamber judgment Catan and Others v. Moldova and Russia. Ms Cercavschi, who together with her daughter was one of the applicants in the case, graciously answered my questions and recounted the circumstances leading to the school’s predicament. This post is based on insights acquired from this discussion and a few other in-depth interviews with key actors in Moldova and Transdniestria, as well as an analysis of both legal and political texts.

In what follows, I will employ the Catan judgment to briefly illustrate the quandaries surrounding the (non-)execution of ECtHR judgments in circumstances as complex as those in Transdniestria, where various actors, State and non-state alike, vie for control and influence. Inside this tangled web, legally binding obligations arising from ECtHR judgments and political commitments extraneous to them may, at times, mutually reinforce each other to give some incidental effects to the former. This, however, does not transpire as traditionally envisioned by Article 46 of the European Convention on Human Rights (ECHR or Convention), i.e. through the execution of the judgment by the State bound by it, but rather indirectly, as a byproduct of two different but ultimately complementary processes. In referring to this byproduct, I will use the terms (indirect and partial) ‘implementation’ or ‘effects’. To me, they have a broader meaning than ‘execution’, in that they may also refer to the (persuasive) authority of the Court’s judgments and their influence on other actors than the State(s) directly bound to execute them, such as will be described in this post.

Continue reading →

Strengthening the supervision of ECHR derogation regimes. A non-judicial avenue

Guest Blogger Covid-19

By Georgiana Epure

This contribution sheds light on the limited effectiveness of the European Court of Human Rights (ECtHR) in supervising states of emergency and highlights one possible non-judicial avenue to strengthen the supervision of derogation regimes: Article 52 of the European Convention on Human Rights (ECHR), which allows the Secretary General of the Council of Europe to open and inquiry into the effective implementation of the Convention. 

The derogation clause and the ECtHR’s limited supervisory role

An epidemic of authoritarian measures may be following on the heels of the COVID-19 pandemic, warned Fionnuala Ní Aoláin, the UN Special Rapporteur on counterterrorism and human rights. Across the Council of Europe membership, numerous countries have declared states of emergency in order to take unprecedented measures to tackle the COVID-19 pandemic. Continue reading →