A new chapter on the deportation of ill persons and Article 3 ECHR: the European Court of Human Rights judgment in Savran v. Denmark

By Dr. Mark Klaassen, Institute of Immigration Law, Leiden University

On 1 October 2019, in the Savran judgment the European Court of Human Rights (hereinafter: ‘the Court’) has applied the Paposhvili-test in cases involving the expulsion of migrants who fear to be the victim of a violation of Article 3 ECHR because a medical treatment is not available in the country of origin. See, for an analysis of the Paposhvili ruling, the blog post of Lourdes Peroni on this blog. The case involves the deportation of a Turkish man with a severe psychiatric condition from Denmark to Turkey. In this contribution, I will first briefly sketch the development of the case law of the Court in Article 3 ECHR cases involving medical treatment. After that, I will outline the facts of the present case and the ruling of the Court. In my analysis of the ruling I will question the feasibility of the Court’s position that the host state is required to obtain assurances from the country of origin that medical treatment is available for a particular patient. I will argue that in case serious doubts persist as to whether the required medical treatment is available and accessible, the returning state should simply refrain from deportation. My final argument is that the Court should have addressed the issue of the right to respect for private and family life under Article 8 ECHR, as I believe it would be helpful to receive more guidance in deportation cases of convicts who committed their crimes in a situation that they cannot (fully) be held accountable because of a psychiatric condition. Continue reading

ECtHR engages in dangerous “triple pirouette” to find criminal prosecution for media coverage of PKK statements did not violate Article 10

By Ronan Ó Fathaigh and Dirk Voorhoof

The European Court’s Second Section recently found that criminal proceedings against the owner and the editor of a newspaper for having published statements by the leader of a terrorist organisation were justified and did not violate the right to freedom of expression. The Court in Gürbüz and Bayar v. Turkey found that the newspaper’s article with statements by the leader of the PKK, Abdullah Öcalan, contained and implied a threat of resumption of violence. In its approach and finding no violation of freedom of expression under Article 10 ECHR, the Court itself made an assessment of the context and content of the article at issue, as the Turkish courts had restricted themselves to the finding of the illegal character of reproducing the statements of the PKK-leader as such, without further evaluating the necessity of the interference in a democratic society. Continue reading

Child protection and child-centrism – the Grand Chamber case of Strand Lobben and others v. Norway 2019

By Prof. Marit Skivenes, Centre for Research on Discretion and Paternalism (University of Bergen)

The backdrop for the Grand Chamber case, is the dissenting Chamber judgment of 2017 – Strand Lobben vs. Norway  – about a boy that had been adopted from foster care. Here, the Chamber concluded it had not been a violation of the mother´s right to respect for family life under Article 8 due to the Chamber’s strong emphasis on the child’s best interest and his de facto family situation, as well as his need for permanency. The dissenting minority of three judges argued for the importance of legal (de jure) bonds and the negative effects of cutting biological ties. In the Grand Chamber judgment, a majority of 13 judges concluded that Norway had violated the applicants’ right to family life on procedural grounds – not on the merits of adoption from care. By this, the Court bypassed a discussion on the tensions and challenges children´s strong position as right bearers implies for the traditional relationships between family and the state.

Although, the Grand Chamber judgement is a disappointment for some and a relief for others, I believe that from a child´s rights perspective there are three important messages that should be addressed: Continue reading

The protection of foster parents right to family and the best interests of the child

By Kartica van de Zon, assistant professor of Family Law, Leiden Law School, the Child Law Department

On 9 April 2019, the ECtHR delivered its judgement in the case V.D and others v Russia. The case concerned a seriously disabled boy who had been in the care of his foster mother for nine years. Typically in cases on long term foster care and adoption, parents complain about their loss of parental authority, or the fact that the child has not returned to their care. In this case, however, it was the foster mother who complained that the child did return to the care of his biological parents. This poses the Strasbourg Court with a difficult dilemma. On the one hand, the Court has often stated that the reunification of children and their parents is the primary goal of child protection measures. On the other hand, the family life between children and their foster parents also deserves protection under Article 8 of the Convention. Granting foster parents a right not to be separated from foster children might come in conflict with the primary goal of child protection measures. Thus how far does the protection of foster parents right to family life reach? Continue reading

Another turn of the screw – further restrictions for Hungarian applications to the ECtHR

This blogpost was written by Andras Kadar, attorney at law, Co-chair of the Hungarian Helsinki Committee

Two recent posts on this blog (one on the Mendrei case and one on the Szalontay decision) by Dániel A Karsai have described how the European Court of Human Rights (Court) – largely disregarding the Hungarian legal-political context and its own jurisprudence on the burden of proof concerning the effectiveness of remedies – has limited potential applicants’ access to the Strasbourg protection mechanism by declaring the Hungarian constitutional complaint an effective domestic remedy to be exhausted as a strong main rule.

With the inadmissibility decision handed down concerning application no. 22172/14, the Court has gone one step further on this road, mounting a procedural obstacle to seeking protection in Strasbourg that certain applicants coming from less privileged groups of society may not be able to overcome.  Continue reading

Burmych v. Ukraine two years later: What about restoral?

By Lize R. Glas, Assistant Professor of European law, Radboud University, the Netherlands

When the Court took the unprecedented decision to strike 12,143 repetitive cases out of its list in  Burmych and Others v. Ukraine on 12 October 2017, it added that it may reassess the situation within two years and restore the cases. As this date is approaching, this blog addresses the question whether the Court will and should restore these cases. For this purpose, I will outline what has happened in the execution process since Burmych, explain what restoration involves and discuss whether the principled and pragmatic reasons for striking out Burmych still apply and convince. This blog begins with a brief summary of the judgment and the events leading up to it. Continue reading

The importance of time in child protection decisions; a commentary on Haddad v Spain

By Simona Florescu PhD fellow, Leiden Law School, the Child Law Department

On 18 June 2019 the European Court of Human Rights found a violation of Article 8 of the Convention in the case of Haddad v Spain. The main reason was that the Spanish authorities did not discharge of their positive obligations to facilitate reunification between the applicant and his daughter (who had been placed in care). The applicant was the child’s father who at the time of placement was suspected of domestic violence against his children and their mother. About one year and four months had elapsed by the time the applicant was legally able to contact his children. During this time, his youngest child (one year and a half old at the time) had been living with foster parents and the authorities were envisaging her adoption.

In addition to finding a violation, the Court called upon the Spanish authorities to re-examine the situation in light of the judgment. Thus, arguably the Spanish authorities are to endeavor to secure the applicant’s reunification with his daughter. Continue reading