Admissibility of ByLock-related data as evidence is now under the scrutiny of the European Court

Guest Blogger Internet

by Yasir Gökce*

Almost every smartphone user would have likely downloaded a sort of messaging app onto their phone and/or corresponded by means of it. Imagine that one day the government asserts that the messaging app you have been enjoying has long been used by a group that the government declares “terrorist” and that on that ground you have become a member of this terrorist organisation. This is what tens of thousands of alleged ByLock app users in Turkey have experienced after the app has been qualified as such and the waves of investigations, prosecutions and detentions that followed it. Ever since, they have desperately been trying to “prove their innocence” by advancing that they have never downloaded the app, or they downloaded it but have never used it for criminal/terrorist purposes.     

Following the assertion of the Erdogan government, almost all first instance courts in Turkey consider the use of ByLock app sufficiently proves the affiliation of the accused with the Gülen Group, which the Erdogan government has branded as ‘Fetullahist Terrorist Organization’ (hereinafter FETÖ). Having endorsed the judgment by the first instance and turned it into its settled jurisprudence, the Turkish Court of Cassation establishes that any involvement in the ByLock network, if substantiated beyond any doubt, suffices to demonstrate terrorist membership and that the content of the messages might be relevant for convicting someone of belonging to the leadership of the group. Here, it is worthy to note the UN Working Group on Arbitrary Detention’s opinion that the actual use of ByLock app would merely constitute an exercise of freedom of expression.

An individual, Mr. Yalcinkaya, who was convicted of “FETÖ” membership for inter alia ByLock use, has exhausted the domestic remedies in Turkey and managed to bring his case before the European Court of Human Rights. Within the framework of communications with the Turkish government, the European Court posed critical questions, which the defendants have been asking since day one of the accusations and to which Turkish courts have so far been oblivious. These questions boil down to the legality, reliability, accuracy and integrity of the evidence which the allegations of the ByLock use are predicated on. This piece aims to address these questions from a legal and technical point of view, in light of the assertions and assumptions of the Erdogan government as well as current developments concerning the ByLock investigations.

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Gasangusenov v. Russia and the right to life: When the ECtHR establishes state responsibility with the wrong reasoning

Guest Blogger Article 2, Gasangusenov v. Russia, Right to Life

Dr Dilek Kurban (Fellow and Lecturer, Hertie School, and Max Weber post-doctoral fellow, EUI, 2021-2022)

What should a supranational human rights court do when faced with a case concerning extrajudicial execution of civilians by a state agent? Certainly not what the European Court of Human Rights (ECtHR or the Court) has done in the case of Gasangusenov v. Russia: framing the case as an unintended consequence of counter-terrorism.

In a unanimous judgment issued on 30 March 2021, the Third Chamber of the ECtHR found a substantive violation of Article 2 of the European Convention on Human Rights (ECHR) in a case concerning the killing of two civilians.  It based its finding on the disproportionate use of lethal force during an alleged special anti-terrorism operation, rather than on an intentional and arbitrary killing by a state agent, seemingly covered up by the entire state apparatus. Doing that, the Court contradicted its own statement of the facts of the case. It also engaged in inconsistent judicial reasoning by, on the one hand, concluding that the authorities had “staged” the crime scene and, on the other, not accepting the applicant’s claim that the aim was to cover up an extrajudicial execution. More broadly, the ECtHR demonstrated, once again, its lack of appreciation for the indispensable role of supranational courts for victims of state violence in authoritarian contexts. In calling for an effective domestic investigation into the killings, the ECtHR acted with the presumption that Russian courts are able and willing to hold the law enforcement accountable for gross human rights violations – presumption disproven by its own jurisprudence on Russia.

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Valdís Fjölnisdóttir and Others v Iceland: cross-border surrogacy and foster care. What about the best interests of the child?

Guest Blogger Article 8, Best interests of the child, Surrogacy, Valdís Fjölnisdóttir and Others v Iceland

By Dr Marianna Iliadou, Teaching Fellow in Medical Law and Ethics at Durham University, UK.

On 18 May 2021, the Third Section of the European Court of Human Rights (ECtHR or the Court) delivered a judgment on the contested issue of non-recognition of the parent-child relationship for a child born through cross-border surrogacy. Surrogacy is the practice where a woman (surrogate) carries and gives birth to a child for someone else.

Valdís Fjölnisdóttir and Others v Iceland gave the Court the opportunity to rule on the refusal of parentage recognition where no intended parent is genetically related to the child, but the child is under their foster care. The Court found no violation of Article 8 ECHR (private and family life), because based on the foster care arrangements there were no actual, practical hindrances in the enjoyment of family life, while given the same (in principle) nature of the complaint under private life it did not see any reason to depart from the above conclusion. Lastly, the Court did not engage with the claim under Article 14 (non-discrimination) and rejected it as manifestly ill-founded.

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Much Ado About Mass Surveillance – the ECtHR Grand Chamber ‘Opens the Gates of an Electronic “Big Brother” in Europe’ in Big Brother Watch v UK

Guest Blogger Article 8, Big Brother Watch and Others v. UK, Mass Surveillance, Right to Private Life

By Dr Eliza Watt, researcher in cyber law, lecturer in law, Middlesex University, London, UK.

On 25 May 2021 the Grand Chamber (GC) of the European Court of Human Rights (ECtHR, the Court) handed down its much-anticipated decision in Big Brother Watch and Others v the UK (Big Brother Watch). The case is of vital importance for the future of the Council of Europe (CoE) member states increasingly relying on mass surveillance regimes because it condones their overall utility as a means of fighting serious cross-border crime and terrorism. It also lays down for the first time new procedural safeguards that all CoE domestic surveillance legislation must adhere to henceforth.

Ostensibly a victory for privacy advocates, the judgment represents a salient high water mark in achieving almost exactly the opposite. This is because it acquiesces not only to the European governments’ quest for greater securitisation, but also cements divergent levels of protection from unwarranted state intrusion based on whether the intercepted material is domestic or foreign in nature, thereby setting out separate standards for targeted and bulk interception of communications. In its earlier case-law on bulk interception of communications when considering the legality of domestic surveillance measures in Roman Zakharov v Russia and Szabó and Vissy v Hungary,  the ECtHR not only challenged their compatibility with Convention rights, but also set out a stringent requirement for the existence of ‘reasonable suspicion’ against a citizen before the surveillance can be authorised. Conversely, in its 2018 Centrum för rättvisa v Sweden (Centrum) and Big Brother Watch Chamber judgements the Court embraced the utility of bulk interception of foreign communications (or strategic surveillance) proclaiming that it constitutes ‘a valuable means to achieve the legitimate aims pursued, particularly given the current threat level from both global terrorism and serious crime’ (para 386 Big Brother Watch 2018).

The purpose of this post is to discuss how the Grand Chamber’s Big Brother Watch findings impact privacy rights and in what way they contribute to the bifurcation of legal standards between domestic and foreign surveillance. To this end, it first briefly outlines the previous ECtHR stance on states’ strategic surveillance as set out in its earlier case law. It then offers a quick reminder of the 2018 Big Brother Watch and Centrum judgements to finally highlight a number of crucial aspects of the GC’s appeal in the former case.

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Xhoxhaj v. Albania: The Aftermath of the Vetting Process in Albania

Guest Blogger Right to a Fair Trial, Right to Private Life, Xhoxhaj v. Albania

By Ina Xhepa, lawyer and Executive Director at the European Centre (Albania)

Over the last decade, the Albanian judiciary was considered to be one of the weakest aspects of the functioning of the rule of law in the country. Field surveys revealed high levels of corruption and led to the loss of citizen’s trust towards the juridical system. This motivated the Albanian Assembly to undertake an in-depth justice reform, aimed at challenging the culture of impunity and restoring citizens’ trust towards this system. Re-evaluation of all judges, prosecutors and legal advisors in office based on three criteria, also known as the vetting process, was considered to be the corner stone of the justice reform.

This contribution discusses one of the latest judgments delivered by the European Court of Human Rights (‘the Court’), the case of Xhoxhaj v. Albania. The judgment`s focus lies on some of the most important aspects of Albania’s vetting process. The Court decided that the respondent State respected fair trial guarantees whilst setting up the vetting bodies. It considered this two-instance structure as tribunals set up by law, which enjoy sufficient legal and structural guarantees to be independent and impartial. The Court considered the Albanian case sui generis. Moreover, a lifetime veto to take juridical office was not considered to constitute a violation of human rights. The following contribution will firstly  shed light on the background and facts of the case, before engaging in a discussion on the dilemmas and consequences of the judgment.

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Disenfranchisement of woman with a disability (yet again) reveals ECtHR’s struggle with CRPD in Caamaño Valle v. Spain

merelvrancken Article 1 of Protocol No. 12, Article 3 of Protocol No. 1, Caamaño Valle v. Spain, Disability, Prohibition of Discrimination

By Merel Vrancken, PhD student and assistant in constitutional law at UHasselt.

In the case of Caamaño Valle v. Spain, the ECtHR held that the disenfranchisement of a woman with a mental disability did not amount to a violation of her right to vote under art. 3 of Protocol No. 1, nor did it amount to discrimination under the Convention. In its reasoning, the Court explicitly rejected the principles laid down in the Convention on the Rights of Persons with Disabilities (hereinafter: CRPD). It came to the conclusion of non-violation by applying the principles it had devised some eleven years earlier, in the case of Alajos Kiss v. Hungary. Concretely, a deprivation of the right to vote on the basis of an individual’s mental capacities may only happen after an ‘individualised judicial evaluation of the person’s cognitive capacity’. While, at first glance, this may not seem like a ground-breaking judgment – it simply applies earlier devised principles and the conclusion they lead to may not seem unwarranted – the rejection it entails of the principles found in the CRPD is both remarkable and unusual. While the Court has had a somewhat conflicting relationship with disability rights for some time (see, for instance, Kargakis v. Greece + blogpost and Delecolle v. France + blogpost), it had never before explicitly rejected the CRPD and its provisions as a source of interpretation for the ECHR.

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Bivolaru and Moldovan v. France: A New Challenge for Mutual Trust in the European Union?

Guest Blogger Article 3, Bivolaru and Moldovan v. France, European Arrest Warrant, European Court of Justice, Extradition, mutual trust, Non-refoulement

By William Julié, founding partner of William Julié Law Office and international criminal law officer at the International Bar Association, and Juliette Fauvarque, trainee lawyer at William Julié Law Office.

In the recent Bivolaru and Moldovan v. France case, the European Court of Human Rights (ECtHR) handed a landmark judgment in relation to the execution of European arrest warrants (EAWs) between Member States of the European Union (EU) and the equivalent protection doctrine. For the first time, the ECtHR decided that the execution of an EAW violated Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture, inhumane and degrading treatment. As we shall see, this case sends a clear warning to all European judges – national or supranational – that the execution of EAWs is subject to the ECtHR’s jurisdiction.

Under the doctrine of equivalent protection, also known as the ‘Bosphorus’ presumption (by reference to the case in which it was first established by the Court), States Parties to the ECHR are presumed to have abided by their obligations under the Convention when applying EU law. This presumption was established by the ECtHR in consideration of the fact that the EU, as an international organization, offers substantive guarantees in the protection of fundamental rights under the Charter of Fundamental Rights, general principles of EU law and the case law of the Court of Justice of the European Union (CJEU).

Two applications were joined in this case. Both concerned French decisions granting the execution of EAWs issued by the Romanian authorities against Romanian nationals for the purpose of serving a custodial sentence. The joinder of these two cases nevertheless resulted in different verdicts, as the Court found a violation of Article 3 in respect of one of the applicants, and no violation in respect of the other.

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Falling at the First Hurdle? Terheş v Romania: Lockdowns and Normalising the Exception

Guest Blogger Admissibility, Article 5, Covid-19, Right to Liberty and Security, Terheş v. Romania , , ,

By Alan Greene*

Over a year into the COVID-19 pandemic and the petitions challenging many of the exceptional powers enacted by states across Europe, cases are now beginning to trickle though to the European Court of Human Rights (ECtHR; the Court). In a blog post on this website last year, I cautioned against the dangers of these powers from a human rights perspective. Such powers, I maintained, were absolutely necessary to confront the pandemic. The key human rights concern, however, will be the precedent that these powers may set for similar restrictive measures to be introduced outside of the COVID-19 pandemic. We must, I contended, ensure that these exceptional powers are quarantined to exceptional situations and that formal derogations using Article 15 of the European Convention on Human Rights (ECHR) were the best way of ensuring this. Unfortunately, in Terheş v Romania, the Fourth Section of the Court has fallen at the first hurdle when entrusted with this challenge.

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Council of Europe at 72: Defusing the Defence Clause, Engaging the Acquis

Guest Blogger Council of Europe, Defence Clause, Parliamentary Assembly

This post was written by Dr Andrew Forde

Winston Churchill caused quite a stir in 1950 when he used the platform of the Council of Europe’s (CoE) then Consultative Assembly (now Parliamentary Assembly) to call for the creation of a European Army. The Committee of Ministers (CM) politely but firmly rebuked the Assembly’s proposal on the basis that ‘decisions on matters of national defence do not fall within the scope of the Council of Europe’, but went on to express hope that ‘the problem of the defence of free Europe may be satisfactorily dealt with in the near future by decisions of the Governments and the competent international organisations’.

Their dismissal was based on Article 1.d of the Statute (hereafter the ‘Defence Clause’) which provides that ‘[m]atters relating to national defence do not fall within the scope of the Council of Europe’. Over time, whilst discussions on sovereign matters of national defence such as defence expenditure, weaponry, alliances and so on have remained largely taboo based on the exclusionary Defence Clause, it has become accepted practice that this does not, in any way, rule out political engagement by the CoE on matters of peace and security particularly when framed in the context of the protection of human rights. And rightly so. To do otherwise, would be to fundamentally undermine the object and purpose of the organisation.

As we recently marked the 72nd anniversary of the CoE Statute, in this piece I will briefly discuss why a more restrictive reading of the Defence Clause would be deeply problematic and that CoE Member States should significantly enhance the organisation’s engagement with emerging and legacy conflicts.

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‘A Court that matters’ to whom and for what? Academic freedom as a (non-)impact case

Guest Blogger Academic freedom, Priority policy, Reform of the Court

By Başak Çalı[*] & Esra Demir-Gürsel[†]

On 17 March 2021, the European Court of Human Rights (ECtHR or the Court) announced a new case-processing strategy. A document dramatically titled ‘A Court that matters’ states that the aim of this strategy is to deal with the pending cases on its docket in a more ‘targeted’ and ‘effective’ manner. The new strategy introduces a new category of cases called ‘impact’ cases. These cases fall under Category IV, covering ‘potentially’ well-founded cases not involving core rights under Articles 2, 3, 4, and 5(1) of the European Convention on Human Rights (ECHR or the Convention). The Court states that it has so far identified around 650 of the 17,800 pending Category IV cases as ‘impact’ cases. This leaves 17,150 cases whose adjudication will take a minimum of five to six years.

How, then, has the Court selected these 650 ‘impact’ cases? The Court explains the criteria to identify ‘impact’ cases as follows: ‘the conclusion of the case might lead to a change or clarification of international or domestic legislation or practice; the case touches upon moral or social issues; the case deals with an emerging or otherwise significant human rights issue.’ In addition, ‘[i]f any of these criteria are met, the Court may take into account whether the case has had significant media coverage domestically and/or is politically sensitive.’

In this blog post, we argue that the criteria laid out by the Court beg more questions than they answer. There is a crucial need for the Court to clarify how it distinguishes ‘impact’ from non-impact cases, and at what stage of the proceedings, through which process and based on whose expertise it does so.

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Parents in Marginalized and Vulnerable Situations, Family Life and Children’s Best Interests: A.I. v. Italy

Guest Blogger Best interests of the child, Children's Rights, Right to Respect for Family Life

Dr. Gamze Erdem Türkelli is a Research Foundation (FWO) Flanders Post-Doctoral Fellow at the Law and Development Research Group, University of Antwerp*

Introduction

On 1 April 2021, the First Section of the European Court of Human Rights (ECtHR) rendered its judgment in A.I. v. Italy (Application no. 70896/17). The judgment sheds light on the States Parties’ obligations under the European Convention on Human Rights (ECHR) in relation to children’s rights and the rights of parents in situations of vulnerability and marginalization (of the parent and the child) as well as of cultural diversity where the family in question belongs to a minority culture in the State Party.

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Anti-vaxxers before the Strasbourg Court: Vavřička and Others v. the Czech Republic

Guest Blogger Article 8, Best interests of the child, Children's Rights, Vaccination, Vavřička and Others v. Czech Republic

By Katarzyna Ważyńska-Finck, PhD researcher at the European University Institute and
a former assistant lawyer at the European Court of Human Rights.

Compared to our ancestors, we are lucky to have at our disposal safe and effective vaccines against illnesses such as polio, measles or hepatitis B. To ensure that the number of immunized people is high enough to prevent diseases from spreading, some governments make vaccinations compulsory. This is especially the case for childhood vaccination schemes. However, some parents who oppose to having their children vaccinated against these illnesses are ready for lengthy legal battles to challenge the mandatory vaccinations as violating their human rights. In a recent judgment the European Court of Human Rights refuted the applicants’ claim that the Czech compulsory vaccination programme violated their Convention rights.

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The impact of infringement proceedings in the Mammadov/Mammadli group of cases: a missed opportunity

Guest Blogger Committee of Ministers, Infringement proceedings, Mammadov v. Azerbaijan, Remedies

Toby Collis, Lawyer at the European Human Rights Advocacy Centre (EHRAC)[1]

Infringement proceedings are a relatively new measure designed to deal with a state’s failure to implement a judgment of the European Court of Human Rights (ECtHR, the Court). Introduced by Protocol No. 14 in 2010, and contained in Article 46(4) of the Convention, the measure is triggered only after serving formal notice on the state concerned, and (which more difficult to achieve) securing a two-thirds majority of votes of the Committee of Ministers (CM). After this, the case is referred to the Court to determine whether the state has, in fact, failed to abide by the judgment. If such a failure is found, leading to a violation of Article 46(1) of the Convention, the case is then returned to the CM to consider any further measures that need to be taken. The CM cannot issue fines, but further measures could include adopting ‘strongly worded’ resolutions or decisions, convening meetings, and (in theory but not in practice) the state’s suspension or expulsion from the Council of Europe.

The infringement procedure was viewed by commentators as unlikely to ever be used. Then, along came the case of Azerbaijani opposition politician Ilgar Mammadov, who was imprisoned in circumstances the Court found had been designed to silence or punish him, and who remained imprisoned despite the CM repeatedly calling for his release. Perhaps because of this outrageousness, and perhaps because the stars aligned making it politically possible to gain the required number of votes in the CM, this case was the first and so far only example of infringement proceedings to be launched.

Now that a number of years have passed since these infringement proceedings were initiated, the purpose of this blog is to assess their impact–both on the situation of Ilgar Mammadov, and on that of several Azerbaijani politicians, human rights defenders and civil society activists who, like Mammadov, won a case in Strasbourg and are waiting for their judgments to be fully implemented. In cases such as these, where a number of judgments raise common issues, the CM will group them together and examine them jointly. The CM has therefore been supervising the execution of all these cases under the Mammadov (now Mammadli) group. We will see that the narrow terms of the infringement procedure—relating only to Mammadov and not the other applicants in the group, and not applying to general measures—led to a missed opportunity to generate meaningful impact.

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What Future for Human Rights? Decision-making by algorithm

Guest Blogger Admissibility, Algorithmic decision-making, Procedure

Veronika Fikfak is an Associate Professor at the University of Copenhagen, where she is leading the ERC Project Human Rights Nudge team (ERC 803891), which looks at how and when states change their behaviour in response to ECtHR judgments. We use computational methods to analyse large datasets of ECtHR case law and follow up processes before the Committee of Ministers. We then apply behavioural insights to understand behaviour of individuals, institutions and states.

The President of the European Court of Human Rights, Robert Spano, recently announced that the Court was looking into introducing algorithmic decision-making to help with new applications coming to the Court. In a speech to the German Marshall Fund of the United States, Spano said:

We have throughout the last decade been introducing reforms and one of them, certainly, is the use of information technology. We are now in a phase where we are looking at to what extent we can, for example, at the registration phase introduce algorithmic or automated decision making so as to try and reduce the extent to which this classical registration phase has to all be done manually. … When it is done, we can use the data introduced into the system in a more effective manner. But I do think moving to the future a mass, a bulk case court like ours will slowly start introducing algorithmic tools to facilitate its tasks.

(see min. 16 and onwards)
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Do human rights go on holiday? The blackout in the Court’s processing of Rule 39 requests for interim measures

Guest Blogger Human Rights Protection vacuum, Interim Measures, Rule 39

Francesco Luigi Gatta, Research Fellow, UCLouvain, EDEM

Thursday 13 May 2021 is a holiday in France, celebrating the Ascension. As a consequence, various offices and services are closed. The European Court of Human Rights makes no exception in this respect. The Court is also remaining closed for the following day, Friday 14 May. 

Nothing strange, so far. Until Monday, 10 May, when this announcement was published in the home page of the Court’s website:

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Feilazoo v. Malta: Immigration detention in the context of the Covid-19 pandemic and beyond and the right of individual petition

Guest Blogger Covid-19, Feilazoo v. Malta, Prisoners

By Dr. Aristi Volou (Post-Doctoral Researcher at the Centre for Fundamental Rights, Hertie School and Associate Editor of Oxford Reports on UN Human Rights Law)

Introduction

On 11 March 2021, the First Section of the European Court of Human Rights (hereinafter the ‘Court’) delivered a highly anticipated judgment which concerned issues related to the Covid-19 pandemic. More precisely, in Feilazoo v. Malta, the Court was called upon to decide on the applicant’s immigration detention next to new arrivals in Covid-19 quarantine, as well as on the conditions and the lawfulness of his immigration detention and on issues related to the right of petition before the Court.

Although we can praise the Court for its balanced approach to the question of access to medical treatment, other aspects of its decision on the conditions of detention are disappointing. First, the Court did not seize the opportunity to develop clear and adequate standards in the context of the deprivation of liberty during the Covid-19 pandemic and thus clearly failed to live up to expectations that it would play an active role in safeguarding the rights of those most affected by the pandemic such as detainees and prisoners. Second, the Court failed to consider all available evidence which would enable it to hold the respondent State accountable for overcrowding in detention.

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Grandma take me home! Visiting rights of (grand)parents and Roma discrimination in Italy: two systemic problems? – Terna v. Italy

Guest Blogger Right to Respect for Family Life, Roma discrimination, Terna v. Italy

Francesco Luigi Gatta, Research Fellow, UCLouvain, EDEM

The case Terna v. Italy (application no. 21052/18) concerns the non-enforcement of a grandmother’s right of access to her granddaughter, who belongs to the Roma ethnic group. It touches upon two serious issues in Italy: visiting rights and Roma discrimination. With the judgment delivered on 14 January 2021, the European Court of Human Rights (ECtHR) found a violation of Article 8 of the European Convention on Human Rights (ECHR) due to the national authorities’ failure to ensure the grandmother’s visiting rights. Going beyond the specific case, moreover, the Court explicitly acknowledged the existence of a systemic problem, since Italy has a long history of delays, disorganisation and judicial decisions left unexecuted when it comes to family issues and access rights. Terna only represents the tip of the iceberg. 

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Victims of ‘vulnerability’: Balancing protection, privacy and participation of child victims in X and Others v. Bulgaria

Guest Blogger Article 3, Children's Rights, Positive Obligations, Sexual Violence, X and Others v Bulgaria

By Prof. Dr. Ton Liefaard[*], Jessica Valentine (LL.M)[†] and Lisanne van Dijck[‡]

‘This is a sad case’ begins the joint partly concurring and partly dissenting opinion of Judge Spano and others in the case of X and others v. Bulgaria. The judgment, delivered by a Grand Chamber of the European Court of Human Rights (ECtHR) on 2 February 2021, certainly concerns sad circumstances: three children (siblings) were abandoned by their mother and placed in an orphanage in Bulgaria where they were allegedly victims of sexual abuse before being adopted by an Italian couple. The separate opinion notes the case concerns ‘some of the most vulnerable of applicants that have come before this Court’. The applicants allege that, following their claim that they had been subjected to sexual abuse at the orphanage, the Bulgarian authorities failed in their positive obligation to protect them against that treatment and in their obligation to conduct an effective investigation into those allegations.

In a divided judgment, the Grand Chamber ultimately found that the Bulgarian authorities had breached their procedural obligation under Article 3 of the ECHR, which requires authorities to conduct an effective investigation into arguable claims of torture, inhuman or degrading treatment. Although the Bulgarian authorities had taken a series of investigative steps, the Grand Chamber ultimately found that these had not met the required level of ‘effectiveness’. One of the reasons for this was a failure to take any steps to involve the victims in the investigation (§208). In its interpretation of Article 3, the Grand Chamber took into account other applicable international instruments and in particular the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (the ‘Lanzarote Convention’).

The joint separate opinion by Judge Spano and others suggests that the majority’s desire to respond to the applicants’ ‘sad story’ leads it astray (§2). The decision, according to this opinion, potentially exposes future child victims to excessively intrusive and unreliable investigative measures (ibid). We argue below that the dissenters’ reading risks overlooking the procedural rights of children.

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Demirtas v. Turkey: an exploration of the dissenting opinions and the Court’s oversights

Guest Blogger Article 18, Demirtaş v. Turkey (no. 2) [GC], Freedom of Expression, Right to Liberty and Security

By Hakan Kaplankaya, former Turkish diplomat, jurist, INSTITUDE member

On December 22, 2020, the European Court of Human Rights (ECtHR/the Court) delivered a landmark judgment against Turkey regarding the prolonged-detention of Selahattin Demirtaş, former leader of pro-Kurdish People’s Democratic Party (HDP). Unlike the 2nd Section of the Court, which has mostly taken a restrained and reticent stance in politically sensitive Turkish cases, especially after the attempted coup in 2016, the Grand Chamber of the Court has sent a direct and clear message by upholding almost all of the applicant’s main arguments, in opposition to the Chamber’s findings. However, the Court rejected the applicant’s claim that the Turkish Constitutional Court (TCC) had not acted fast enough to comply with the requirement of article 5 § 4 of the Convention. The Court has held this position in many post-coup Turkish cases.

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Behar and Budinova v. Bulgaria: The Rights of Others in Cases of Othering – Anti-victim bias in ECHR hate speech law?

Guest Blogger Freedom of Expression, hate speech, Minority Rights

By Margarita S. Ilieva, a strategic equality and human rights litigator with extensive experience in hate speech. She litigated Behar,  Budinova and Panayotova and Others v. Bulgaria, and other landmark cases like Yordanova v. Bulgaria and Karaahmed v. Bulgaria.

The author was the architect of the cases discussed below, having brought them domestically in 2005 and lodged them with the Court in 2013. She represented them until 2018 when a substitute lawyer appropriated them.

Introduction

On 16 February 2021, the European Court of Human Rights (‘the Court’) decided ground-breaking cases of minority othering:  Behar and Gutman; Budinova and Chaprazov. The twin cases, stemming from collective domestic litigation, concern anti-Semitic/ anti-Roma hate speech. The applicants, community members, were not personally targeted. Domestic courts failed to protect their ‘private life’ from ethnic discrimination leading to a finding of a violation of Articles 8 and 14 of the Convention.

For the first time the Court:

  • found violations in cases of general anti-minority speech; 
  • articulated criteria to assess if speech is sufficiently prejudicial to affect a community’s sense of identity/ its members’ self-worth.

This represents a quantum leap: the Court has struggled to recognize the impact of identity abuse on individual dignity. Consequently, the case law on hate speech has been lopsided. It is underdeveloped in cases brought by hate speech victims and far more evolved in cases brought by hate speakers under Article 10 as discussed in the commentary below.

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WHAT IS FAIR IN LAW & WAR? Discussing States’ conduct and compliance with human rights standards during military operations abroad in Hanan v. Germany

Aurélie Van Baelen Hanan v. Germany, Jurisdiction, procedural obligations, Right to Life

Aurélie Van Baelen, researcher at the Human Rights Centre (University of Ghent)

Introduction

On 16 February 2021, the European Court of Human Rights (ECtHR) delivered its long-awaited judgment in Hanan v. Germany (application no. 4871/16). The ruling presents another episode in the saga of cases regarding States’ conduct, and more specifically their compliance with international human rights law, during military operations abroad under the auspices of an international organisation. Facing no fewer than eight intervening governments, showing the importance of the case at hand for troop-contributing States, the ruling is – unsurprisingly – one of give and take.

As I will argue in this blog post, the judgment is remarkable for finding extraterritorial jurisdiction for the purposes of Article 1 of the European Convention of Human Rights (ECHR) and for explicitly reconfirming a State’s duty to investigate civilian casualties in correspondence to human standards. The Court’s finding of a non-violation of the procedural limb of Article 2 ECHR however is unfortunate, but expected. The Court delivered a strategic judgment, in which it attempts to not dissuade States to engage in multilateral military operations, or to institute domestic investigations into deaths occurring during military operations abroad, on the one hand, and to protect fundamental rights on the other. A carefully constructed balance which, regrettably, has tilted in favour of the former, which for airstrike victims, is the umpteenth disappointment on their quest to justice.

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Medical “normalisation” of intersex persons: third-party intervention to the ECtHR in the case of M. v. France

Guest Blogger Article 3, Intersex, LGBT Rights, M v. France, Prohibition of Discrimination, Prohibition of Torture, Third Party Intervention

By Charly Derave, PhD Researcher at the Perelman Centre for legal philosophy (ULB), and Hania Ouhnaoui, coordinator of the Equality Law Clinic (ULB).

On 24 February 2021, the Equality Law Clinic (ELC) of the Université Libre de Bruxelles[1] and the Human Rights Centre (HRC) of Ghent University[2] submitted a third-party intervention to the European Court of Human Rights in the case M. v. France. This case is the first opportunity for the Court to rule on “normalising” medical treatments of intersex persons, i.e. those who are born with sex characteristics that do not conform to the (medical) definition of the male and female sex.  They represent between 1% and 2% of the population. It is because of the “variations”[3] in their sex characteristics that, even though they are healthy, these persons often undergo enforced corrective surgeries and hormonal treatments to “normalise” their bodies and to anchor them in the binarity of sex and gender.

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Another step enhancing the (procedural) protection for judges: Eminağaoğlu v Turkey and Bilgen v Turkey

Guest Blogger Bilgen v. Turkey, Eminağaoğlu v. Turkey, Right to a Fair Trial

Mathieu Leloup, PhD researcher in constitutional and administrative law at the University of Antwerp, Belgium, research group Government and Law

The protection of domestic judges has become something of a leitmotif in the European case law over the last few years. Hardly a month goes by without a judgment in which the ECtHR or the ECJ was asked to rule on something that pertained to the safeguarding of the domestic judiciary. Most often, the issue in question relates to the broader principle of judicial independence – ranging from appointment of judges, over judicial discipline, to judicial tenure. But it may just as well address more factual issues, like the detention of judges (for example, in Baş). In other cases still, the question is not so much a substantive issue, but rather relates to the procedural protection that judges may enjoy.

The cases that will be discussed here fall within the latter category. In two cases against Turkey, Eminağaoğlu and Bilgen, the Strasbourg Court has adopted a very flexible interpretation of the so-called Eskelinen-criteria and has expanded the right of access to a court that domestic judges enjoy under Article 6(1) ECHR. In doing so, this judgment can be seen as marking another step in an evolution that has been going on for a little bit over a decade now.

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Pişkin v. Turkey: Observations on the failure of the Lawfulness Test and the Engel Criteria within the context of the Turkish Purge

Guest Blogger Pişkin v. Turkey, Right to a Fair Trial, Right to respect for private life

By Hakan Kaplankaya, former Turkish diplomat, jurist, INSTITUDE member

On 15 December 2020, the European Court of Human Rights (ECtHR/the Court) delivered its first judgment regarding the purge of a public employee as per the first of the notorious emergency legislative decrees adopted by the Turkish government in the aftermath of the controversial coup attempt staged on July 15, 2016. The government had blamed the Gülen Movement for orchestrating the coup attempt and enacted various emergency measures with no regard for constitutional and statutory imperatives, including the dismissal of 130 thousand public servants. However, the purge was not limited to Gülenists, but also affected other ‘disloyal’ public servants such as academicians who signed a petition asking for peace for the Kurdish problem. The dismissed officials were also subjected to other punitive measures including the cancellation of their passports, a ban on performing certain professions besides the life-long prohibition of public service, as well as other administrative practices preventing them from finding jobs in the private sector, which – all combined – could be argued to amount to a civil death.

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Jurčić v. Croatia: clarity on protecting women undergoing IVF treatment from discrimination

Guest Blogger IVF, Jurčić v. Croatia, Prohibition of Discrimination, Stereotypes, Women's Rights, Workplace

By Jonas Deweer-Vanmeerhaeghe, lawyer at the Belgian federal Institute for the Equality of Women and Men, where he specializes in insurance discrimination and the protection of the rights of transgender and intersex persons. Jonas is a founding member of GenderSpectrum, a non-profit advocating on behalf of gender diverse persons, and he also volunteers for UTSOPI, the Belgian Sex Workers Union.

Disclaimer: The opinions expressed here are those of the author and do not necessarily reflect the official position of any organisation.

Introduction

In the case of Jurčić v. Croatia (application no. 54711/15), on the 4th of February 2021, the first section of the European Court of Human Rights (ECtHR) rendered a compelling verdict on a question of discrimination on the grounds of sex and pregnancy with regards to publicly mandated health insurance. The Court agreed with Ms. Jurčić (hereinafter ‘the applicant’) when she claimed to have been discriminated against by several national authorities and courts. These institutions, despite several appeals by the applicant, upheld the notion that her employment had been fictitious since she had been in treatment for in vitro fertilization when accepting a position with a Croatian company. They claimed that her sole motivation for accepting the position was to obtain the pecuniary advantages related to the status of working persons during her pregnancy.

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Yes, Prime Minister (bis): prosecution for satirical collage criticising Turkish prime minister’s foreign policy violated artist’s freedom of expression

Guest Blogger Article 10, Artistic and political expression, Freedom of Expression

Ronan Ó Fathaigh and Dirk Voorhoof

On 2 February 2021, the European Court of Human Rights (ECtHR) unanimously found that the criminal proceedings against an artist’s satirical collage ‘insulting’ the Turkish Prime Minister violated his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). In an earlier case (Tuşalp v. Turkey) about press articles criticising the then Prime Minister, Mr. Recep Tayyip Erdoğan, the ECtHR also concluded that the Turkish authorities had disproportionately interfered with freedom of political expression, by overprotecting the reputation of the Prime Minister (see our blog entitled ‘Yes Prime Minister!’ here). In its latest judgment in Dickinson v. Turkey the ECtHR confirms that a politician must show a greater tolerance towards criticism, especially when the expression takes the form of satire. Most importantly, the ECtHR found that Article 10 was violated, even where the applicant has ‘only’ been criminally prosecuted, without any sanction being imposed. The ECtHR considers that being prosecuted for insult of a political leader, with a risk of being imprisoned, has a chilling effect on the right to freedom of expression.

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Prosecutors Behaving Badly: Revisiting the Operational Duty to Protect Trafficked Persons in V.C.L. and A.N. v. the United Kingdom

Guest Blogger Prohibition of slavery and forced labour, Right to a Fair Trial, V.C.L and A.N v. the United Kingdom

By John Trajer, PhD Researcher in Law at the European University Institute

Introduction

In V.C.L. and A.N. v. the United Kingdom, delivered on 16 February 2021, the European Court of Human Rights (‘the Court’ or ‘the ECtHR’) was called upon to consider whether the prosecution of potential victims of trafficking could engage state responsibility under the European Convention on Human Rights (ECHR). While it has been recognised that victims should not be held liable for unlawful acts committed as a direct consequence of their trafficking (see the paper on ‘non-punishment’ by the former UN Special Rapporteur on trafficking in persons), this was the first time that an international court had pronounced on this issue.

The result is a judgment which contributes in a significant way to the Court’s existing jurisprudence on positive obligations under Article 4 ECHR (prohibition of slavery and forced labour). Paying attention to the special situation of minors throughout, the judgment introduces important safeguards to ensure that victims of trafficking suspected of committing criminal offences are not unduly deprived of the right to be identified and protected. The ruling also recognises for the first time that a failure to adequately investigate the status of possible victims of trafficking can undermine the right to a fair trial under Article 6(1) ECHR.

Following a summary of the background facts, this post describes the key points addressed in the Court’s assessment. It concludes with a reflection on the judgment’s contribution to the Court’s growing jurisprudence on human trafficking.

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Kargakis v. Greece: Protection in Substance for Detainees with Disabilities but a Web of Missed Opportunities

Guest Blogger Article 3, Detention, Disability, Kargakis v. Greece, Prisoners, Prohibition of Inhuman Treatment

By Andrea Broderick (Assistant Professor of International and European Law, Maastricht University, The Netherlands) and Delia Ferri (Professor of Law, Maynooth University, Ireland)

Delia Ferri and Andrea Broderick have collaborated on several recent publications, including the first textbook on International and European Disability Law and Policy: Texts, Cases and Materials (Cambridge University Press, 2019), and the first Research Handbook on EU Disability Law (Edward Elgar Publishing, 2020).

On 14 January 2021, the ECtHR released its ruling in the case of Kargakis v. Greece (press release available in English). The case centres on the conditions of pre-trial detention of Mr. Kleanthis Kargakis in Diavata Prison, the lack of an effective remedy to complain about those conditions and the length of judicial review proceedings. Taking into account the fact that Mr. Kargakis is a person with disabilities and having regard to the duration of his imprisonment, the Strasbourg Court held that the conditions in which he was detained amounted to a violation of Article 3 ECHR, containing the prohibition of inhuman and degrading treatment. The Court also found that Greece breached Article 13 ECHR, which enshrines the right to an effective remedy, on account of the fact that the domestic court did not adequately examine the conditions of detention and health issues experienced by the applicant.

The ruling in Kargakis v. Greece is noteworthy due to the Court’s finding that the pre-trial detention conditions in Diavata Prison exceeded the threshold of suffering inherent to the deprivation of liberty because the prison facilities were not adapted to the needs of people with disabilities. While the Strasbourg Judges did not explicitly discuss Greece’s international law obligations to provide generalised accessibility measures and individualised reasonable accommodation, the ECtHR acknowledged the rights of detainees with disabilities to an accessible place of detention. In that sense, the decision fits neatly into a long line of previous cases, such as Price v. UK, Z.H. v. Hungary and Grimailovs v. Latvia, in which the Court has recognised the general duty of Contracting Parties to the ECHR to provide accessible prison settings, alongside the obligation to take all ‘reasonable steps’ to address the individual needs of detainees with a disability. Unfortunately, the Court did not refer to, or incorporate into its reasoning in Kargakis v. Greece, the UN Convention on the Rights of Persons with Disabilities (CRPD). In that regard, the decision constitutes a missed opportunity to foster convergence between the ECHR and the CRPD.

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The Best and Worst ECtHR judgments of 2020 are…

Strasbourg Observers Uncategorized

Dear readers,

About a month ago, we presented you with a shortlist of candidates for the awards of best and worst ECtHR judgments of 2020 (see our previous blogpost). We would like to thank everybody who participated in the vote. It is our pleasure to announce the results of the poll today.

In the category of best judgment, the winner is… Selahattin Demirtaş v. Turkey (no. 2)!

Selahattin Demirtaş v. Turkey (no. 2): 48.1%

Beizaras and Levickas v. Lithuania: 15.19%

G.L. v. Italy: 12.66%

In this case, the Grand Chamber found that Selahattin Demirtaş, former co-chair of the opposition Peoples’ Democratic Party (HDP), had been unlawfully detained and that there had been a violation of his freedom of expression due to a constitutional amendment which limited political speech. Lastly, that Selahattin Demirtaş’ detention, especially during two political campaigns, violated Article 18 in conjunction with Article 5, as it ‘pursued the ulterior purpose of stifling pluralism and limiting freedom of political debate’. Most importantly, under Article 46, the Court ordered the immediate release of Selahattin Demirtaş. The Grand Chamber relied heavily on the Venice Commission as well as third party interventions from, among others, the Council of Europe Commissioner for Human Rights to solidify its stance. The results of the vote demonstrate our readership’s support for political freedom in Turkey and that the Court should continue to step up to the plate when it comes to the very real – and dangerous – issue of democratic backsliding.

In the category of worst judgment, the winner is… N.D and N.T v. Spain!

N.D. and N.T. v. Spain: 51.76%

Dikaiou and Others v. Greece: 21.96%

B.G. and Others v. France and Napotnik v. Romania: tied with 7.06%

It is no surprise, given the response to this Grand Chamber judgment, that N.D. and N.T v. Spain has occupied the top spot on our worst judgment list. The Court’s fall from grace (as the Chamber judgment won the best judgment of 2017) is palpable in the human rights community. By electing the Grand Chamber judgment of N.D. and N.T., our readership has sent a clear signal that the Court should rethink the protection (not) offered to migrants concerning police violence and push backs.

In the Aftermath of a Judgment: Why Human Rights Organisations Should Harness the Potential of Rule 9

Guest Blogger Rule 9

Dr. Aysel Küçüksu, Postdoctoral Fellow, iCourts, University of Copenhagen[1]

Introduction

NGOs and NHRIs – collectively referred to as human rights organisations (HROs) – have long enjoyed a certain celebrity for impactful litigation at the European Court of Human Rights (ECtHR), but what do they do once the desired judgment has been handed down? Do they disperse or do they follow up, and if the latter, what does their follow-up look like? These and similar questions demarcate the largely uncharted territory that is HRO participation in the ECtHR execution process. As elusive as their responses might appear, the data to formulate them is all there, publicly available and easily accessible on the Court’s HUDOC-EXEC website in the form of Rule 9 communications. Yet, despite their power to improve our understanding of human rights’ judgments implementation, those communications have largely escaped scholarly attention. This can be attributed to the fact that, until recently, focus on HRO mobilisation within the ECtHR context has concentrated on the period preceding the delivery of a judgment. Though this trend is slowly changing, and studies of HRO participation in ECtHR post-judgment universe are steadily multiplying, attention to the Rule 9 procedure remains scarce.

This has left a huge gap in the scholarship on the invaluable monitoring role NGOs and NHRIs have been afforded with since the introduction of Rule 9 to the Rules of the Committee of Ministers (CM) in 2006. In an effort to address the gap, this entry will focus on explaining the Rule 9 procedure and increase both knowledge of, and recourse to it. Governing the involvement of NGOs in the execution phase of ECtHR judgments, the Rule 9 procedure has done wonders to diversify and democratize access to the accountability mechanisms offered by the ECtHR and Council of Europe (CoE) more generally, and created an unprecedented feedback mechanism that allows the CM, as the relevant supervisory body, to receive valuable, contextualized assessments of the execution process from HROs. Despite that, recourse to the procedure remains low, with studies showing that limited HRO engagement with the implementation process is partly due to lack of awareness as to how to do so. The aim of this post is help address this issue by spreading awareness of this formal avenue. In this way, every HRO which has a stake in the implementation of a particular ECtHR judgment would have the tools to harness its potential. In a time when 43% of all the leading cases delivered by the Court are still pending implementation, Rule 9 communications can help achieve full compliance by engaging domestic actors with an insider understanding of what home-grown remedies need to look like in order to work.

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The right to privacy used as a modern pillory in L.B. v. Hungary

Guest Blogger Article 8, L.B. v. Hungary, Right to Private Life, Right to respect for private life, Tax law

By Liesa Keunen, PhD researcher at Ghent and Antwerp University, Belgium. Liesa Keunen is working on the research project ‘Tax audits on big data: exploring the legitimacy and limits in light of the prohibition of fishing expeditions’ (Ghent & Antwerp University, FWO). She is also a member of the research group Law & Technology, the Human Rights Centre and PIXLES (Privacy, Information Exchange, Law Enforcement and Surveillance), all established at the Faculty of Law and Criminology at Ghent University. At the University of Antwerp, she is a member of DigiTax (Centre of Excellence that researches the challenges and opportunities of digitalisation for taxation).

The fourth section of the European Court of Human Rights (ECtHR) delivered a remarkable judgment in the case of L.B. v. Hungary (application no. 36345/16) on January 12, 2021. The publication of taxpayers’ personal data on the tax authority’s website for failing to fulfil their tax obligations constitutes no violation of the right to private life as established under Article 8 of the European Convention on Human Rights (ECHR). In this case, the personal data published included the applicant’s name, home address, tax identification number, and the amount of unpaid tax he owed. The ECtHR clearly prioritises the Hungarian legislature’s choice to make the identity of persons who fail to respect their tax obligations publicly available in order to improve payment discipline and protect the business interests of third parties over the data subject’s right to privacy.

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X and Y v. Romania: the ‘impossible dilemma’ reasoning applied to gender affirming surgery as a requirement for gender recognition

Guest Blogger gender recognition, LGBTQI+ Rights, Right to respect for private life, Trans rights, X. and Y. v. Romania

By Sarah Schoentjes, PhD Researcher at the Human Rights Centre of Ghent University, and Dr. Pieter Cannoot, Postdoctoral Researcher at the Human Rights Centre of Ghent University and Visiting Professor at the University of Antwerp

In the case of X and Y v. Romania, the ECtHR has declared one more abusive requirement for gender recognition to be a violation of article 8 of the Convention. Almost two years after X v. FYROM, in a case with a similar fact pattern, the Court finally declared that requiring trans persons to undergo gender affirming surgery before they could obtain legal gender recognition violates their human rights. Though the judgment is not without flaws – notably, the Court’s now steadfast refusal to examine gender recognition cases under art. 14, – X and Y v. Romania is a momentous development in the Court’s case law, guaranteeing trans people an extra level of much-needed protection, recognition and autonomy.

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They did it again: Russia’s continued presence in the PACE

Guest Blogger Parliamentary Assembly, Russia, sanctions

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

In a previous blog, I recalled how the Russian delegation managed to return to the Parliamentary Assembly of the Council of Europe (Assembly) without sanctions in June 2019. The return of these members meant the end of their refusal to submit their credentials in the years 2016-2019. That refusal, in turn, had been a reaction to the Assembly’s April 2014 decision to suspend the Russian members’ voting (and some other) rights because of, inter alia, Russia’s annexation of Crimea.

When ratifying the credentials of the Russian delegation in June 2019, the Assembly called on Russia to do a number of things, including fulfilling previous Assembly resolutions, returning 24 illegally captured sailors to Ukraine, paying all fees due to the Council of Europe, protecting LGBTQI+ people, and cooperating in the investigation of the downing of the MH17 flight and the murder of politician Boris Nemtsov. The delegation was requested to cooperate with the Assembly’s committees and engage in a meaningful dialogue. The Assembly expected that this dialogue would lead to concrete results, and invited its Monitoring Committee to report on the honouring of obligations by Russia no later than April 2020.

During the 2021 winter plenary session of the Assembly, which took place from 25 to 28 January, the credentials of the Russian delegation were challenged (again). In this blog, I will explain how the relation between the Assembly and Russia has developed since June 2019, discuss the 2021 winter plenary session, and comment on what these events tell us about the Assembly’s approach towards Russia and the steps that its representatives are prepared to take against that state and its delegation.

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The Case of Gestur Jónsson and Ragnar Halldór Hall v Iceland: Between Two Paradigms of Punishment

Guest Blogger Article 7, Criminal procedure, Gestur Jónsson and Ragnar Halldór Hall v Iceland, Right to a Fair Trial

By Agnė Andrijauskaitė, LL.M (PhD Researcher at German University of Administrative Sciences Speyer and Vilnius University)

The year of 2020 ended with an epic battle over admissibility taking place in Strasbourg. More precisely, the Grand Chamber of the European Court of Human Rights (ECtHR) has passed a judgment in the case of Gestur Jónsson and Ragnar Halldór Hall v Iceland concerning fines imposed on two Icelandic lawyers for displaying contempt of court. This case – yet again – has raised a question on which fines should fall within the criminal scope of Articles 6 and 7 ECHR. Put otherwise, the ECtHR has had the opportunity to refine the scope of the so-called Engel criteria anew. These criteria were developed as early as the ‘70s in order to combat the ‘mislabelling’ tendencies and allow the ECtHR to afford the protection of the Convention to sanctions of punitive and deterrent nature – regardless of their domestic classification – autonomously. Such protection, however, was not warranted in this particular case because the impugned fines enabling a court to sanction the applicants for their contempt of court were deemed ‘more akin to the exercise of disciplinary powers’ as contrasted with the ‘classical’ criminal measures. This contribution shall seek to decipher the rationale behind these measures and whether such a stance does not overly dilute individual rights. It will argue that the current judgment is a consistent logical extension of previous teachings of the ECtHR, in which fines devised to ensure orderly administration of justice found no place under the criminal limb of Article 6 ECHR. In fact, there are valid reasons as to why they should not be ‘upgraded’ to criminal measures under the ECHR and be rather accepted as ‘sui generis’.

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Georgia v. Russia (II): zooming in on conflict displacement

Guest Blogger Armed conflict, Displacement, Georgia v. Russia (II), Inter-state case

Deborah Casalin is a PhD researcher in the Law and Development Research Group at the University of Antwerp Law Faculty. Her research focuses on the role of international and regional human rights mechanisms in ensuring reparation for arbitrary displacement. 

Introduction

The European Court of Human Rights’ Georgia v. Russia (II) judgment – the first inter-State merits judgment in twenty years to address a situation of armed conflict between parties to the European Convention on Human Rights – has already given rise to highly critical legal discussions, including an extensive contribution by Jessica Gavron & Philip Leach here on Strasbourg Observers. The main focus so far has rightly fallen on the Court’s U-turn on extra-territorial jurisdiction and its effective banishment of active hostilities to a legal no-man’s-land. The aim of this post is not to revisit these debates, but to delve further into the judgment and zoom in on the aspects of the case relating to displaced people. Around 300 000 people are currently internally displaced in Georgia – some have not been able to return to South Ossetia or Abkhazia since the 2008 conflict, while others still have not found a durable solution in over three decades since previous conflicts in those regions. Considering the ongoing and serious consequences of conflict-related displacement in Georgia, as well as in other countries within and beyond the Council of Europe, the Court’s position on the issue has potentially broad resonance and so merits further analysis. 

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Trivkanović v. Croatia: About rigidity, reopening and proof of forced disappearances

Guest Blogger Forced disappearances, Right to a Fair Trial, Uncategorized

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

Introduction

The judgment in the case of Trivkanović v. Croatia (no. 2) (21 January 2021, nr. 54916/16) provides a good illustration of the European Court of Human Rights’ (ECtHR; Court) at times flexible approach towards the rules that it has created in its judgments. In the instant case, the Court presents itself as flexible when it comes to the applicability of Article 6(1) ECHR to judicial reopening proceedings and when it comes to evaluating the standard of proof imposed on the applicant by domestic judges in light of the same provision. By taking a flexible approach, the Court helps to ensure that the European Convention of Human Rights (ECHR; Convention) rights are not ‘theoretical or illusory’, but ‘practical and effective’ (see for example Salduz v. Turkey, § 51). In this blog post, I will take a closer look at the two instances of the Court’s flexible approach and at the Court’s rationales for making the exceptions. It is particularly noteworthy that the Court expects the Croatian judges to apply Article 2 ECHR case-law about state liability in case of a forced disappearance in domestic civil compensation proceedings. 

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Is begging speech? Assessing Judge Keller’s concurring opinion in Lăcătuş v. Switzerland

Guest Blogger Freedom of Expression, Poverty, Proportionality, Right to Private Life

By Dr Dimitrios Kagiaros, Assistant Professor in Public Law and Human Rights, University of Durham

In its judgment in Lăcătuş v. Switzerland, the European Court of Human Rights (‘the Court’) held that fining and imprisoning the applicant for begging amounted to a violation of Article 8 of the Convention. While the judgment raises many important issues that have been expertly covered on this blog (here), the focus of this post is on Judge Keller’s concurring opinion. In this separate opinion, Judge Keller takes issue with the majority’s refusal to examine whether begging engages Article 10 ECHR. She ultimately concludes that begging constitutes a form of communication that amounts to speech for the purposes of the Convention. The crux of Judge Keller’s argument is that begging can be likened to a distress call through which the purported speaker communicates her destitution to others in order to seek assistance. Therefore, Judge Keller views begging as an invitation to social interaction between the impoverished person and those she approaches for help. In support of this view, Judge Keller also points to developments in ECHR Member States that link begging to Article 10.

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Beg your Pardon!: Criminalisation of Poverty and the Human Right to Beg in Lăcătuş v. Switzerland

Corina Heri Lacatus v. Switzerland, Poverty, Proportionality, Right to respect for private life, Roma Rights

By Corina Heri, postdoctoral researcher at University of Zürich

Begging can be framed in different ways. For city tourism officials, it’s a problem of branding. For local legislatures, it’s an opportunity to show a ‘tough on crime’ stance. For the people who beg themselves, begging can mean survival. But, until recently anyway, the European Court of Human Rights had not considered begging as a human rights issue. That is, until 19 January 2021, when it recognised that there is in fact a human right to beg.

In the judgment concerned, Lăcătuş v. Switzerland (available here, in French only), the Third Section found that the city of Geneva had violated a young Roma woman’s Article 8 ECHR rights (respect for private and family life) by fining and ultimately imprisoning her for begging. This post will summarise and discuss the judgment, and look at how it fits into the grander scheme of the Court’s poverty-related jurisprudence and its views on distributional justice. It will also discuss the rights claims that the judges did and did not entertain, and will touch on the issue of the applicant’s vulnerability.

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Damage control after Georgia v Russia (II) – holding states responsible for human rights violations during armed conflict

Guest Blogger Georgia v. Russia (II), Grand Chamber, Inter-state case, Jurisdiction

By Jessica Gavron and Philip Leach, European Human Rights Advocacy Centre, London

Introduction

The European Court of Human Rights’ recent Grand Chamber judgment in the case of Georgia v Russia (II) has already been the subject of strong criticism, both from within the Human Rights Building and outside. For Judge Pinto de Albuquerque, the judgment represented a ‘pernicious progeny of Banković’. Judges Yudkivska, Wojtyczek and Chanturia aver that the majority have confirmed the Latin maxim silent enim leges inter arma (in times of war law falls silent). For Marko Milanovic, the decision is ‘exemplary only in its arbitrariness’. Helen Duffy points to the ‘potentially insidious policy implications’ of the judgment. Commenting on the Court’s deference to international humanitarian law (IHL), Isabella Risini notes that ‘judicial mechanisms for the enforcement of IHL are largely inexistent’. Kanstantsin Dzehtsiarou suggests that ‘the Court is ready to give up on massive human rights violations because they are too difficult to deal with.’

Although there is so much in this judgment to be dissected, this post focuses on the single, critical question of how to determine jurisdiction in respect of extra-territorial armed conflict. We revisit and discuss relevant international jurisprudence, but in the limited space available, we do not of course claim to be comprehensive.

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A Judgment to Be Reckoned with: Demirtaş v. Turkey (no. 2) [GC] and the ECtHR’s Stand Against Autocratic Legalism

Guest Blogger Article 18, Demirtaş v. Turkey (no. 2) [GC], Freedom of Expression, Grand Chamber, Right to Liberty and Security

By Ezgi Yildiz, Project Lead and Postdoctoral Researcher at the Global Governance Centre, the Graduate Institute, Geneva

The recent Demirtaş v. Turkey (no. 2) [GC] judgment (application no. 14305/17) stands out not only for its substance but also its tone. The judgment provides an unequivocal solution to the protracted political crisis in Turkey concerning the fate of Selahattin Demirtaş and other opposition politicians and dissidents in general. It highlights the ulterior political purposes behind Demirtaş’s deprivation of liberty and therefore orders his immediate release. It, thus, sends a strong and an unambiguous message to the Turkish government to grant freedoms that political dissidents should normally enjoy in a democratic society run by rule of law. But, beyond this crucial point, the judgment also demonstrates the true potential of the Court to challenge the use of domestic laws and institutions to silence opposition and suffocate pluralism – an “autocratic legalism” practice that is also widely used in other autocratic or autocratic-leaning countries in Europe. For these reasons alone – albeit not the only reasons – this an important and much-needed ruling.

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On the Value of Interim Measures by the ECtHR on Inter-Sate Disputes

Guest Blogger Inter-state case, Interim Measures, Rule 39

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

Nikos Kazantzakis’ wrote in The Saviors of God: Spiritual Exercises: ‘Love responsibility. Say: It is my duty, and mine alone, to save the earth. If it is not saved, then I alone am to blame.’ (transl. K. Friar). The ECtHR’s responsibility is not to save the earth, but to safeguard fundamental human rights. This note discusses one aspect of this mission, namely the responsibility of the ECtHR to grant (provisional) protection in inter-state disputes, in particular when protection is urgently needed because of an armed conflict.

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Poll: Best and Worst ECtHR Judgment of 2020

Strasbourg Observers Uncategorized

Dear readers,

At Strasbourg Observers, we always like to seize the opportunity of the beginning of the new year to look back at the previous one. 2020 has been a strange year. Last year, many members from our scholarly community dropped their ordinary research activities to keep us, via Strasbourg Observers, up to do date on the human rights implications of the developing Covid-19 crisis. At the same time, despite the logistical challenges of running a court in times of pandemic, the Strasbourg Court has continued its activities and eventually still managed to deliver no less than 1,901 judgments and 37,289 decisions (see the Court’s Annual Report, in which President Spano rightly praises the ‘exceptional commitment’ shown by the Court’s staff to adapt to the circumstances). And we have continued to watch the Court!

Having tried our best to keep you up to date on last year’s Strasbourg jurisprudence, we would now like to invite you, our readers, to participate in our annual poll for best and worst ECtHR judgment. Where did the Court provide a welcome contribution to the development of the jurisprudence or to the safeguarding of human rights in Europe? Or perhaps rather, where did it fail to live up to our expectations in this regard?

After an internal voting process, we have made a shortlist of five judgments in each category. If you are, however, of the opinion that we missed out on an important case(s), you can also vote for other good or bad cases using the “Other” option. You are welcome to share your reasons for voting via the comments section below.

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X and Y v North Macedonia: A missed opportunity to improve the case law on anti-Roma custodial violence

Guest Blogger Article 1 of Protocol No. 12, Article 3, Roma Rights, X and Y v. North Macedonia

By Emma Várnagy (Teaching Assistant at the Faculty of Law, Safety and Governance, The Hague University of Applied Sciences)

The case of X and Y v North Macedonia (Application no. 173/17) concerns the beating of two Roma youths by the police and the subsequent inaction concerning the investigation of their ill-treatment. In fact, it has a strikingly similar fact pattern to a number of cases throughout the last two decades, such as Assenov and Others v Bulgaria (1998); Bekos and Koutropoulos v Greece (2005); Stefanou v Greece (2010); or A.P. v Slovakia (2020). These cases all concern the apprehension of Roma minors for suspected theft and their ill-treatment in police custody. The novelty of X and Y is that it is the first time the discrimination claim was also raised under Article 1 of Protocol No. 12, thereby offering an opportunity that the Court could have taken to formulate its approach to racist violence at the hands of public authorities.

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Usmanov v. Russia: a confusing turn in the right direction?

Guest Blogger Nationality, Right to Respect for Private Life, Usmanov v. Russia

By Louise Reyntjens (Leuven Centre for Public Law, KULeuven)

On the 22nd of December 2020, the Strasbourg Court delivered its latest judgment in its case law on citizenship deprivation, a sensitive issue the Court is increasingly confronted with. Ever since the “European war on terror” has been declared, governments have rediscovered citizenship deprivation as a counterterrorism measure; a most cunning tool to shape national societies and exclude the “unwanted”, i.e. (convicted/suspected) terrorists. Over the past couple of years, those cases have started to find their way to the Strasbourg Court, with many fundamental rights questions surrounding them. Most of the judgments delivered on this particular issue were rather disappointing and failed to offer much protection to the individual(s) involved. The judgment of Usmanov v. Russia on the other hand, is indicative of a careful turnaround in this regard. It does however also cause some confusion in how the Court handles cases of deprivation, warranting further clarification (perhaps ideally by the Grand Chamber?).

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A misconceived balance by the domestic courts in Dupate v. Latvia

Guest Blogger Dupate v. Latvia, Freedom of Expression, Freedom of Press, Right to Respect for Private Life

By Evangellos Orestis Vouvonikos (Phd in Public Law, University of Athens, Attorney in Law)

Introduction

On the 19th November 2020, the European Court of Human Rights (ECtHR) delivered its judgment in Dupate v. Latvia (application no. 18068/11). In this case, the ECtHR dealt with an alleged violation of respect of the applicant’s private life (Article 8 of European Convention on Human Rights (ECHR)). The appeal was based on the publication of an article in a popular magazine, in which the applicant was photographed without her consent, while exiting a maternity clinic, after giving birth to her second child. Unlike the Latvian courts, the ECtHR assessed that there had been a violation of Article 8 ECHR. According to the Court, the Latvian authorities had not satisfactorily balanced the freedom of press against the protection of private life.  

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B. and C. v Switzerland: between concealment of sexual orientation and risk assessment in Article 3 cases

Guest Blogger B. and C. v. Switzerland, LGBT Rights, Non-refoulement, procedural obligations

Blog post by Riccardo Viviani, LL.M., and Denise Venturi, Ph.D. Candidate in Law, KU Leuven, Research Unit Public Law*

On 17 November 2020, the European Court of Human Rights (ECtHR) delivered its judgment in B. and C. v Switzerland. The case concerned the risk of deportation and ill-treatment upon return to the Gambia of a homosexual applicant**, whose request for family reunification with his partner, a Swiss national, had been rejected. The Court unanimously found a violation of Article 3 of the Convention, following the inadequate evaluation of the risk of inhuman and degrading treatment and of relevant availability of State protection in the Gambia.

For the first time, in a non-refoulement case concerning a risk of ill-treatment for reasons of sexual orientation, the Court clarified that the lack of an adequate risk assessment by domestic authorities would breach Article 3. So far, similar cases have been either struck out or have been declared inadmissible by Strasbourg judges.

This contribution will offer a brief analysis of the present judgment and will situate it in the wider context of the existing European case-law, namely the jurisprudence of the Court of Justice of the European Union (CJEU) and other precedents in which the ECtHR has dealt with Article 3 claims based on sexual orientation.

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Honner v France: Damage Prevention and/or Damage Control?

Guest Blogger Honner v. France, LGBT Rights, Right to Respect for Family Life

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

In 2020, an application concerning the parental rights of a co-mother was to be expected. What is surprising, however, is the ECtHR’s response. In Honner v France, the Court held that the refusal to grant contact rights to a social mother in respect of her child who had been born to her former female partner using assisted reproductive technologies in Belgium did not violate her right to respect for family life. This judgment evokes different feelings, prima facie conflicting but eventually pointing to a consistent picture of the ECtHR: that of an international court with strong expressive powers, which is expected to be at the same time cautious and leading the development of human rights standards in Europe and beyond. 

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When States Steal Christmas: the Citizens’ Right to Return to the Country of Citizenship in Time of Pandemic

Guest Blogger Covid-19, Freedom of movement

By Andrea Preziosi (University of Birmingham – School of Law)

Prologue

When I started writing this post, I was stuck in Birmingham few days before Christmas instead of being on a flight to Italy to spend the holiday break with my family. Needless to say, it was not my decision, but the result of the decision of the Italian government, as well as many other governments around the world, to ban flights from the UK following the reported news of a new variant of Covid-19 detected in south-east England that threatened to spread anywhere else. Frustration, anger and sadness are not enough to describe my feelings when the news broke out. I thought that Italy had disrupted my plan to visit my  family and condemned me to pass Christmas in total loneliness, as if the forced isolation lasting almost one year had not been enough.

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Insulting accusation of domestic violence

Guest Blogger Domestic Violence, Freedom of Expression, Right to Reputation, Tölle v. Croatia

By Dirk Voorhoof and Inger Høedt-Rasmussen (*)

The European Court of Human Rights (ECtHR), delivered an interesting judgment in the case of Tölle v. Croatia about insulting allegations of domestic violence. In a newspaper article a father accused an association to be responsible for his child’s abduction by the mother. The president of this association providing support for women victims of violence replied in a radio-interview that her organisation was not involved in the daughter’s abduction and that the man had violently abused his wife. That was also the reason why mother and daughter had fled the country. The association’s president was subsequently convicted for the criminal offence of insult. The ECtHR found that this criminal conviction amounted to a violation of the association’s president’s freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). The Court finds the criminal conviction for insult a sort of censorship, discouraging the promotion for support of victims of domestic violence.

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Unuane v United Kingdom: does the Convention require “pure” proportionality?

Guest Blogger Migration, Right to Respect for Family Life, Unuane v United Kingdom

By Lewis Graham (PhD Researcher at Pembroke College, Cambridge)

The Fourth Section recently delivered its judgment in Unuane v United Kingdom, in which it found that the UK had breached Article 8 ECHR through approving the deportation of an individual without properly evaluating the impact this would have on his private and family life under Article 8 ECHR. The case is important not only for its conclusions on the UK’s deportation scheme, but also for what it clarifies (and, disappointingly, what it does not clarify) about what immigration and deportation schemes across Europe must do in order to be considered compatible with Article 8 ECHR.

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