Too little, too late? The ECtHR’s pilot judgment on the Belgian internment policy

Guest post by Els Schipaanboord, LL.M. – PhD Researcher at the Institute for International Research on Criminal Policy, Ghent University

On 6 September 2016, the European Court of Human Rights condemned Belgium once more, after 22 previous convictions, for its internment policy. This safety measure, under the Belgian law referred to as ‘internering’, aims to protect the society against ‘dangerous’ mentally ill offenders who cannot be held accountable for the offence they have committed, due to their illness. This time, however, the verdict granted Belgium the questionable honor of a pilot judgement. Applying the ‘pilot procedure’, the Court classifies Belgium’s internment policy as systematically and structurally dysfunctional and imposes an obligation upon it to address these problems within a limited amount of time. The Court gave Belgium a deadline of two years.

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Crossing the Very Fine Line between Justice and Vengeance: Massive Purges in the Aftermath of the Attempted Coup in Turkey

Guest post by Duygu Çiçek – LL.M. in Human Rights from the University of Edinburgh (2015-2016)

Turkey’s recent attempted coup of the 15th of July exposed various discussions and conspiracy theories about the reasons behind the coup as well as future concerns regarding political dynamics at the domestic and international level. This contribution, however, will specifically focus on the massive purges occurring in the aftermath of the failed coup and the human rights implications of these violations within the ambit of the European Court of Human Rights’ jurisprudence, with a specific focus on the example of lustration.

Turkey’s current de-Gülenization movement has employed harsh measures, including torture and ill treatment of detainees, arbitrary detention of people in the absence of due process, as well as the screening, suspension, and dismissal of tens of thousands of teachers, public employees, judges, prosecutors, academics, and journalists accused of aligning themselves with the Gülen movement. The recent Decree-Law no. 672 enacted under the state of emergency does not only regulate the dismissal of public officials who are related to FETÖ (“Fethullah Gülen Terror Organization”, accused of creating a parallel state and organizing the coup attempt), but also bans them from working in the public field in the future, aiming to sweep out the influence of this movement from state institutions as well as the private sector. All these measures violate the European Convention on Human Rights (“the ECHR” or “the Convention”) and go beyond what can be justified even under the state of emergency invoked by the Turkish government.

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Blog seminar on positive obligations (4): The Responsiveness of a Positive State – Vulnerability and Positive Obligations under the ECHR

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

The concept of vulnerability has had wide-ranging effects for the Strasbourg jurisprudence, although the European Court of Human Rights, in what appears to be a matter of conscious choice,[1] has never defined it. Instead, the Court has opted for a flexible and reactive application of the concept in a broad array of cases under various Convention articles. This approach, which has been employed by the Court in deciding hundreds of cases to date, has recently benefitted from much-needed scholarly attention.[2] It has also enjoyed further exploration in the context of Laurens Lavrysen’s recently-published Ph.D. thesis on Human Rights in a Positive State. Against the backdrop provided by these findings, the following will seek to shed some additional light on the Court’s approach to vulnerability-based positive obligations. Continue reading

Blog seminar on positive obligations (3): Positive obligations to protect fundamental rights – any role to be played by the European Court of Justice?

By Malu Beijer, researcher Radboud University Nijmegen

The concept of positive obligations has become a regular feature of the case law of the European Court of Human Rights (ECtHR) ever since the classic cases of Marckx v. Belgium, Airey v. Ireland and X. and Y. v. the Netherlands. The ECtHR has made very clear in this case law that the full and effective protection of fundamental rights requires states to take active measures. States cannot simply remain passive by complying only with their negative obligations.

In other systems of international human rights law and under national law, a similar concept of positive obligations can often be recognised. The same does not hold true for the protection of fundamental rights under EU law. The EU’s (relatively) more recent system of fundamental rights protection so far mainly has had a focus on negative obligations. Can it be established by the European Court of Justice (ECJ) that the EU institutions and the member states must fulfil positive obligations as well? In this post I will briefly explain some of my thoughts on this specific question which formed the topic of my PhD research. Continue reading

Blog seminar on positive obligations (2): positive obligations under unqualified rights

Guest post written by Dr. Vladislava Stoyanova, Lecturer and Postdoctoral Fellow, Faculty of Law, Lund University

Author of Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in Europe (Cambridge University Press, 2017). Currently working on a postdoctoral project entitled ‘Positive Obligations under the ECHR’

I certainly agree with Dr. Laurens Lavrysen’s assessment that the concept of positive obligations has remained undertheorized in the existing literature and in this respect, his book constitutes an invaluable contribution aimed at filling the gap. There is much in Lavrysen’s Human Rights in a Positive State for human rights scholars, lawyers, students and both national and international judges to engage with and enjoy. The book offers an impressive review of recent judgments and demonstrates an excellent analytical rigor in its efforts to extract relevant principles and structure these in a clearer analytical framework. In this contribution, I would like rather focus on two issues: the analytical distinction between qualified and unqualified rights and, as related to the above, the proximity requirement, namely the proximity between State conduct and the harm sustained by the individual. Continue reading

Blog seminar on positive obligations (1): Publication PhD “Human Rights in a Positive State”

I am proud to announce the publication of my PhD “Human Rights in a Positive State – Rethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights”. In my PhD, I have exhaustively studied the concept of positive obligations in the case law of the European Court of Human Rights, on the basis of a corpus of 2618 cases in which the Court used the notion of positive obligations, identified through the Court’s HUDOC database. During my PhD research, I was particularly interested in how the Court distinguishes between the respective concepts of positive and negative obligations and how the choice to examine a case from the one or the other perspective influences the Court’s legal reasoning. Continue reading

ECJ headscarf series (6): The vicious circle of prejudices against Muslim women

By Saïla Ouald Chaib

The day the opinion of Advocate General Kokott in the case of Achbita v. G4S came out, my phone did not stop ringing. The press wanted to know if this opinion really meant that employers could refuse to hire women wearing a hijab. The fact that even journalists sounded surprised speaks for itself. Friends and organizations called me to know my view as a lawyer about this development in the case-law. “How can this be justified from a human rights perspective?” “What can we do to stop this?” And also: “how will I ever find a job if even a European Court backs this kind of discrimination?” These are only a few of the questions I received.

There are many aspects of these opinions that I would like to discuss. However, in light of the previous blog posts in this series, in which a technical legal analysis has already been undertaken from different angles, I will, within the limits of a short post, focus on one particular aspect, namely the perspective of the applicants and with them that of many other Muslim women, in particular in Belgium where the facts of the case of Achbita took place and where our Human Rights Centre is also based. Indeed, in complement to a strictly legal debate, it is important to understand the situation on the ground. This post should therefore be read as a companion piece to the previous post in this series written by Eva Brems, in which she gave an overview of the limiting regulations affecting Muslim women in Belgium.

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