Pryanishnikov v. Russia: the production and distribution of erotic and pornographic material under Article 10 of the ECHR

Argyro Chatzinikolaou is a doctoral researcher and a member of the Law & Technology research group and the Human Rights Centre at Ghent University. She is currently working on the research project “Minors and online sexual acts: a study of legal qualifications and regulatory approaches from a children’s rights perspective”.

In Pryanishnikov v Russia, a case concerning the authorities’ refusal to grant the applicant a film reproduction license, the European Court of Human Rights (hereinafter ECtHR or Court) found a violation of the right to freedom of expression, as the only reason advanced by the domestic courts for the refusal of the relevant license had been based on mere suspicions rather than findings of fact. Moreover, the Court concluded that the authorities had failed to strike a fair balance between the right to freedom of expression and the need to protect public morals and the rights of others. Beyond the judgment itself and the finding of a violation of Article 10 of the European Convention of Human Rights (hereinafter ECHR), what merits attention is the elaborate concurring opinion delivered by Judge Pinto de Albuquerque on the regulation of pornography and the justification of restrictions of such material at a European and national level. Continue reading

Strasbourg Court’s new non-contentious phase – a tax on lawlessness?

Jessica Gavron, Legal, Director, European Human Rights Advocacy Centre, London

It is widely recognised that the European Court of Human Rights is under huge pressure to reduce its caseload, currently standing at almost 60,000 cases. To this end, the Court has been increasing the number of cases resolved by friendly settlements and unilateral declarations and in January this year started trialling a new compulsory 12 week non-contentious phase to its procedure. The intention behind this new phase is the early, expeditious and domestic resolution of cases, involving greater ‘burden sharing’ of the caseload with Contracting States. The friendly settlement of cases could justifiably lead to the resolution of many pending cases and has the potential benefit, with proper oversight, of allowing for more specific remedies than may be forthcoming from a final judgment. However, the implementation and conduct so far of this new phase has given human rights lawyers and applicants cause for serious concern. Continue reading

Denying journalist access to asylum-seeker ‘reception centre’ in Hungary violated Article 10 ECHR

By Dirk Voorhoof and Ronan Ó Fathaigh

In Szurovecz v. Hungary, the European Court of Human Rights has held that a refusal to grant a journalist access to an asylum-seeker ‘reception centre’ in Hungary violated his right to freedom of expression under Article 10 ECHR. The ECtHR emphasised that newsgathering, including ‘first-hand’ observation by a journalist reporting on a matter of significant public interest, is an essential part of journalistic research and press freedom. The ECtHR found that the public interest in reporting from certain locations is especially relevant where the authorities’ handling of vulnerable groups is at stake, and the presence of media is a guarantee that the authorities can be held to account for their conduct. Continue reading

Ilașcu: from contested precedent to well-established case-law

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

On 15 October 2019, the European Court of Human Rights delivered a judgment in the case of Grama and Dîrul v. The Republic of Moldova and Russia, whereby it found a violation of Art. 1, Protocol No. 1 and Art. 13 to the/of the Convention by the Russian Federation only. More specifically, the Court held that the seizure of the applicants’ cars and the imposition of fines on them by the authorities of the ‘Moldavian Republic of Transdniestria’ (the MRT or Transdniestria) and the lack of an effective remedy for the applicants to assert their rights in the face of the actions of the MRT constituted a breach of said Convention provisions. Transdniestria is a breakaway region in Moldova that declared independence in 1991 but remains unrecognized by the international community. Continue reading

Strand Lobben and Others v. Norway: from Age of Subsidiarity to Age of Redundancy?

In the recent judgment of Strand Lobben and Others v. Norway, the Grand Chamber found a violation of Article 8 ECHR (the right to respect for family life) on account of shortcomings in the decision-making process leading to the adoption of a boy who had been placed in foster care. The Grand Chamber in particular took issue with the fact that this decision had been taken without up-to-date expert evidence on the mother’s capacity to provide proper care and on her son’s vulnerability. As the case has already been discussed by Marit Skivenes on this blog, this post will only focus on a particular aspect of the case: the side-stepping of the important substantive issues in favour of a purely procedural review of the case, despite strong mobilization by third party interveners around the former. This certainly fits within the broader trend seen in the case law where there is an increasing reliance on procedural review, often associated with the idea of Strasbourg having entered the “Age of Subsidiarity”, a term coined by Judge Spano. It is argued that, by micromanaging domestic processes rather than providing guidance on substantive issues, at a moment in time in which no useful decision can still be made for the families affected, the Court risks making itself redundant in addressing human rights concerns in the area of child protection. Continue reading

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