Month: March 2018

The best interests of the child in deportation cases: An analysis of Ejimson v. Germany

Guest Blogger Ejimson v. Germany, Migration, Right to Respect for Family Life

By Dr. Mark Klaassen, Assistant professor at the Institute of Immigration Law (Leiden University)

Introduction

On 1 March 2018, the Fifth Section of the Court unanimously held in Ejimson v. Germany that the revocation of the right of residence in Germany of a Nigerian national after being criminally convicted for a drugs related offence did not breach Germany’s obligation to respect the private and family life of the applicant. Considering the character of the offence committed by the applicant the ruling may not come as a surprise as the Court is generally very strict in public order immigration cases in which the applicant has committed a drugs related offence. However, the reasoning of the Court is interesting for a number of reasons. After discussing the facts of the case and the judgment of the Court, I will analyse the ruling on three different aspects. Firstly, the role of the best interests of the child concept in the balancing of interests will be discussed. Secondly, the relationship between the right to respect for family life under Article 8 ECHR and the protection against expulsion under EU law will be assessed. Thirdly, I will shortly reflect on the manner in which the Court seems to redirect the case back to national decision makers. Continue reading →

The Grand Chamber, universal civil jurisdiction for torture and Naït-Liman v. Switzerland

Corina Heri Naït-Liman v. Switzerland, Prohibition of Torture

By Corina Heri, postdoctoral researcher at the University of Amsterdam

On 15 March 2018, the ECtHR’s Grand Chamber issued its first judgment of the year. The case in question is Naït-Liman v. Switzerland, and it concerns the right of a refugee to seize a Swiss court with a civil claim for damages resulting from torture allegedly suffered in a third State, Tunisia. Specifically, the Grand Chamber examined whether – as a forum of necessity or as a matter of universal civil jurisdiction – the Swiss courts were required by Article 6 § 1 ECHR to examine the applicant’s civil claim for compensation against Tunisia. Like the Chamber, the Grand Chamber found that this was not the case, and considered that the Member States are under no international law obligation to provide universal civil jurisdiction for torture. Continue reading →

Seminar “Positive obligations under the ECHR and the Criminal Law: towards a Coercive Human Rights Law?”

Laurens Lavrysen Uncategorized

Dear readers,

Together with Dr. Natasa Mavronicola (University of Birmingham), I’m co-organizing an expert seminar on “Positive obligations under the ECHR and the Criminal Law: towards a Coercive Human Rights Law?”, which will take place in Ghent on 25 May 2018.

The European Court of Human Rights increasingly requires States to protect ECHR rights by recourse to the criminal law. On the one hand, States now have to criminalize certain human rights violations, such as human trafficking, torture and rape. On the other hand, States may be under an obligation to prosecute offenders and to impose criminal sanctions. The seminar provides an excellent opportunity for an in-depth discussion on the important legal questions raised by this evolution, which go to the heart of the purpose and function of human rights law.

You can find the programme of the seminar here. The seminar is a closed event for a limited number of participants. If you have a strong research interest in the topic, you can ask the organisers to attend the seminar (laurens.lavrysen@ugent.be and n.mavronicola@bham.ac.uk).

M.K. v. Greece – Implementing children’s rights in legal proceedings following an international parental abduction.

Guest Blogger M.K. v. Greece, Right to Respect for Family Life

By Sara Lembrechts – Researcher at University of Antwerp & Policy Advisor at Children’s Rights Knowledge Centre (KeKi), Belgium

Summary

In the Chamber judgment M.K. v Greece of 1 February 2018 (application no. 51312/16), the European Court of Human Rights decided by a majority of five votes to two that the applicant’s right to family life under Article 8 ECHR had not been violated. The case concerns the inability of M.K., mother of two children, to exercise custody over her son A., despite various court decisions granting her this right. The Court, faced with the difficult task of balancing different rights and interests in this very sensitive area of family law, could not establish a violation of the Convention. Whereas the applicant was prevented from exercising her right to family life, returning A. to his mother in accordance with the 1980 Hague Convention and the Brussels IIbis Regulation would be against the child’s wishes and best interests. This conclusion challenges the boundaries of national authorities’ positive and negative obligations to protect the applicant’s rights under Art. 8 ECHR.   Continue reading →

Conviction for performance-art protest at war memorial did not violate Article 10

Guest Blogger Freedom of Expression, Sinkova v. Ukraine

By Ronan Ó Fathaigh and Dirk Voorhoof

The European Court’s Fourth Section has held, by four votes to three, that a protestor’s conviction, including a suspended three-year prison sentence, for frying eggs over the flame of a war memorial, did not violate the protestor’s freedom of expression. The judgment in Sinkova v. Ukraine prompted a notable dissent, which highlighted “inconsistency” with the Court’s prior case law, and a disregard for the principle that criminal penalties are likely to have a “chilling effect on satirical forms of expression relating to topical issues.” Continue reading →

Sekmadienis Ltd. v. Lithuania: Can Religious Figures Be Featured in Commercial Advertising?

Guest Blogger Uncategorized

This guest post was written by Ingrida Milkaite, Ghent University *

On 30 January 2018 the European Court of Human Rights (the ECtHR, the Court) found a violation of Article 10 of the ECHR in Sekmadienis Ltd. v Lithuania. The main issue at hand was the question whether the national authorities provided ample explanation, consisting of relevant and sufficient reasons, as to why certain advertisements were contrary to public morals.

Continue reading →

Disability and University (pragmatic) Activism: the pros and cons of Enver Şahin v Turkey

Guest Blogger Disability, Enver Şahin v. Turkey, Right to Education

By Joseph Damamme, PhD candidate at the Centre of European Law of the Université libre de Bruxelles, member of the Equality Law Clinic & Advisor to Counsel (Constantin Cojocariu) in the case of Gherghina v Romania.

Economic and time constraints are often used as a justification for refusing or delaying necessary changes to the environment that would allow persons with disabilities to be more included in society. A balancing exercise between these constraints and the rights of these individuals was the subject of the ECtHR Chamber judgment Enver Şahin v Turkey (only available in French for now). Therein, the Court clarified somehow the content and contours of the State’s (and the University’s) responsibility, when faced with accessibility requests by their students with disabilities. The positive outcome of the Court’s ruling contrasts with some missed opportunities and unanswered questions that are addressed by Judge Lemmens in his valuable dissenting opinion. Continue reading →

The right of journalistic newsgathering during demonstrations

Guest Blogger Butkevich v. Russia, Freedom of Expression

By Dirk Voorhoof and Daniel Simons

In a case about a Ukrainian journalist being arrested during an anti-globalisation protest in Russia, the European Court of Human Rights (ECtHR) in Butkevich v. Russia (13 February 2018) has clarified that the gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom. The ECtHR found that the arrest, prosecution and conviction of the journalist had violated his right to freedom of expression under Article 10 of the European Convention of Human Rights (ECHR). The ECtHR also found violations of Article 5 § 1 (right to liberty) and of Article 6 § 1 (right to a fair trial). This blog focuses on the aspects of journalism and freedom of expression under Article 10 ECHR, and in relation to the right of peaceful demonstration under Article 11 ECHR. The judgment offers important support to journalists covering public events, demonstrations and police actions, especially after the disappointing outcome in the case of Pentikäinen v. Finland. Continue reading →

Undue political pressure is not dialogue: The draft Copenhagen Declaration and its potential repercussions on the Court’s independence

Guest Blogger Copenhagen Declaration

By Sarah Lambrecht, researcher, Research Group Government and Law, UAntwerp and law clerk at the Belgian Constitutional Court[1]

 The Danish Government wishes to initiate a renewed discussion on the future of the European Convention on Human Rights system­, as one of its priorities of the Danish Chairmanship of the Committee of Ministers of the Council of Europe from November 2017 till May 2018. Before issuing its draft Copenhagen Declaration on 5 February 2018, the Danish Government hosted a High-Level Expert Symposium ‘The Future of the European Court of Human Rights – Time for a Renewed Discussion?’ on 20-21 April 2017 at Copenhagen, at which I participated, and a High-Level Expert Conference ‘2019 and Beyond – Taking Stock and Moving Forward from the Interlaken Process’ on 22-24 November 2017 at Kokkedal. This process has been particularly transparent, a stark contrast from previous efforts, for which the Danish Government should be commended. Continue reading →

The Draft Copenhagen Declaration – What About Civil Society?

Guest Blogger Copenhagen Declaration

By Antoine Buyse, professor of human rights from a multidisciplinary perspective, Utrecht University

The very existence of this critical comment series on the draft Copenhagen Declaration of the Danish chairmanship of the Council of Europe shows that the recent publication of the draft was enough to elicit a stream of responses. This possibility for open discussion is to be applauded and certainly a big improvement over the earlier discussion surrounding the Brighton Declaration of 2012, over which debate was only possible after the text was leaked. Indeed the intensity and concerns palpable in the current responses show that the contents of the draft are not warmly welcomed by everyone. Some very esteemed colleagues, with supporting reasoning, even relegate the whole draft back to the drawing board. Continue reading →