Karapetyan and Others v. Armenia: Senior Civil Servants as Defenders of Democracy or as Lackeys of the Executive?

By Stijn Smet

A few weeks ago, a Section of the European Court of Human Rights ruled that the Armenian government had not exceeded its margin of appreciation by summarily dismissing senior civil servants who had voiced critical remarks on the democratic nature of the 2008 presidential elections in Armenia. The Court’s view on the need for a ‘politically neutral body of civil servants’ in its Karapetyan and Others v. Armenia judgment is worrying. It risks demoting senior civil servants to mere lackeys of the executive, impeding them from playing a potentially vital role in defending democracy and the rule of law.

Continue reading

Magyar Helsinki Bizottság v Hungary: a (limited) right of access to information under article 10 ECHR

Guest post by M. Schaap-Rubio Imbers, PhD Candidate international public law, Erasmus School of Law  

On the 8th of November 2016, the ECtHR’s Grand Chamber delivered its judgment in Magyar Helsinki Bizottság v Hungary. The applicant NGO (Magyar Helsinki Bizottság) complained that the refusal of police departments to disclose information on the appointment of public defenders upon their request represented a breach of its rights as set out in article 10 ECHR. The Court held by fifteen votes to two that there has indeed been a violation of article 10. This judgment is the latest ruling on access to public interest information, and as such a very welcome elaboration of the Court’s position on the right of access to public interest information under article 10 ECHR.

Considering that others have already provided a good overview of the background and what is at stake in this judgement (here) and provided a general discussion of the case at hand (here), in this contribution I will focus particularly on the criteria established by the Court for access to public interest information under article 10 ECHR.

Continue reading

Publication Book – Resolving Conflicts between Human Rights: The Judge’s Dilemma

Resolving Conflicts between Human Rights: The Judge's Dilemma (Hardback) book coverI am most pleased to announce the publication, with Routledge, of my book Resolving Conflicts between Human Rights: The Judge’s Dilemma. The book is based on my PhD research. Its first 20-odd pages – including the entire introduction – can be consulted here. This should give interested readers a good idea of what the book is about.

This is its first page:

Under the influence of the global spread of human rights, legal disputes across the globe are increasingly framed in human rights terms. In a myriad of court cases the world over, opposing parties can invoke human rights norms in support of their competing claims. Take, for instance, a labour dispute in which a church invokes its religious freedom to shield it from the complaint of a lay employee, who claims that his dismissal for having engaged in an extramarital relationship has violated his right to privacy. Or take the case of a politician who sues a newspaper for defamation, claiming that a corruption story on the newspaper’s front page has breached her right to reputation. Or the case of an adopted person who seeks a court order for the disclosure of information related to her origins, against the express wishes of her biological mother, who had given birth to her anonymously.

When confronted with such cases in which human rights conflict, judges face a dilemma. In ‘traditional’ human rights cases, in which human rights are opposed by the public interest, the former arguably function as ‘trumps’ over or ‘shields’ against the latter. Human rights, in other words, hold special normative force over the public interest invoked to justify their infringement. In ‘traditional’ human rights cases, the scales of justice are thus loaded in favour of human rights. When human rights conflict with each other, however, there are no ‘trumps’ to be played or ‘shields’ to be wielded. Instead, often difficult choices have to be made between superior norms that deserve principled equal respect. I do not mean to imply, here, that ‘traditional’ human rights cases are always easy to resolve, nor that conflicts between human rights invariably make for complex cases. But human rights conflicts do pose particular challenges for adjudication. Those challenges are identified and tackled throughout this book.

The central argument of this book is that human rights conflicts are uniquely problematic, in that they are special kinds of hard cases that require a distinct resolution framework. The need for such a distinct framework flows directly from the special normative force of human rights, as ‘trumps’ over or ‘shields’ against the public interest. Taking the special normative force of human rights seriously, I posit, necessitates a departure from the proportionality test in the specific domain of human rights conflicts. Throughout this book, I question the relevance of the proportionality test, ubiquitous in human rights reasoning, to conflicts between human rights. Instead, I propose an alternative (or refined) framework, specifically designed to tackle the hard cases in which human rights collide.

 

On a positive note: B.A.C. v. Greece

By Ellen Desmet, assistant professor of migration law at Ghent University.

On 13 October 2016, the European Court of Human Rights unanimously found in B.A.C. v. Greece that the Greek state’s omission to decide on an asylum application during more than twelve years violated Article 8 as well as Article 13 in conjunction with Article 8. The Court also considered that there would be a violation of Article 3 in conjunction with Article 13, if the applicant would be returned to Turkey without an assessment ex nunc by the Greek authorities of his personal situation.

This is the first time that the Court finds that an asylum seeker’s prolonged precarious and uncertain situation, due to an unjustified lack of action by the government as regards his asylum request, constitutes a violation of the right to respect for private life as guaranteed by Article 8 ECHR.

The judgment (only in French) has been discussed by Markos Karavias on EJIL: Talk!, and was mentioned by Benoit Dhondt on this blog in a comparative perspective, namely as a promising decision standing in contrast to the striking out of Khan v. Germany by the Grand Chamber. This post provides a complementary analysis of the Court’s considerations under Article 8 ECHR.

Continue reading

A Casualty of Formalism: The Application of the Six-Month Rule in Kamenica and Others v. Serbia

By Corina Heri, PhD candidate at the University of Zürich / Visiting Scholar at Ghent University

On 27 October 2016, the Court published the Third Section’s decision in Kamenica and Others v. Serbia. That case concerns the alleged ill-treatment of 67 persons who fled Bosnia and Herzegovina during the conflict that broke out there in 1992 and who were subsequently interned in a Serbian detention camp. The Third Section applied the six-month rule to the case, finding that it had been brought out of time. Its decision raises questions about the strictness of the six-month rule and the application of a statute of limitations to grievous alleged violations of Article 3 ECHR. Granted, the application of a rigid time limit for bringing applications to Strasbourg fosters certainty and ensures that the proceedings before the Court take place within a useful time frame. However, decisions such as this one indicate that, in certain types of cases – here, a particularly grievous one that stood to be investigated in a post-conflict scenario – the Court’s emphasis of a strict time limit can seem decidedly formalistic.

Continue reading

Khan v. Germany, Episode II: The Empire strikes out

Guest post by Benoit Dhondt, Belgian lawyer specialized in migration and refugee law. As a teaching assistant, he is also connected to the Human Rights Centre of Ghent University, more specifically its Human Rights and Migration Law Clinic.

Several practitioners were disappointed with the road the ECtHR traveled in Khan v. Germany last year. With the Grand Chamber referral, hope rose for a more sensible approach and greater protection standards for mentally ill migrants on the verge of expulsion. Alas, the Grand Chamber has struck out the case, leaving us with more questions than answers. In what follows I will give a brief description of the case after which I will delve a little bit deeper into some of the issues the decision to strike out has left untouched.

Continue reading

The potential of a vulnerability-based approach: some additional reflections following O.M. v Hungary

Guest post by Denise Venturi, PhD Student in International Law, Scuola Superiore Sant’Anna (Italy) and KU Leuven (Belgium)

As has recently been noted in this blog, the case of O.M. v Hungary adds another tile to the European Court of Human Rights’ (ECtHR) mosaic on vulnerability. The present blog post seeks to start from these premises and dig further into the Court’s reasoning, to reflect on the extent to which vulnerability can be operationalised and meaningfully used in the legal reasoning and when, instead, it risks to remain confined only to a synonym for specific situations deserving attention.

As the readers of this blog may know, O.M. v Hungary concerned the detention to which a gay asylum seeker from Iran was subject while his asylum request was processed and before being granted refugee status. The detention was ordered because, allegedly, Mr. O.M. had not been able to clarify his identity and nationality; had entered irregularly; had not had any resources to live on in Hungary and there was a risk he could frustrate the procedure if left at large. The applicant claimed before the ECtHR that his detention had been unjustified with respect to Article 5(1)(b) of the European Convention on Human Rights (ECHR) and that no individual assessment had been carried out. Notably, the applicant’s sexual orientation had not been taken into consideration, although Mr. O.M. reported to fear harassment in detention because of this circumstance.

Continue reading