Month: June 2018

On sledgehammers and nutcrackers: recent developments in the Court’s less restrictive means doctrine

Laurens Lavrysen Gülbahar Özer and Yusuf Özer v. Turkey, Proportionality, United Civil Aviation Trade Union and Csorba v. Hungary

By Laurens Lavrysen, postdoctoral researcher at the Human Rights Centre of Ghent University (Belgium)

A number of years ago, Eva Brems and I wrote an article “‘Don’t Use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights”. Using a sledgehammer to crack a nut is a quintessential example of a disproportionate action given the fact that an obvious less restrictive means (LRM) to do so is available in the form of a nutcracker. Similarly, the European Court of Human Rights has occasionally resorted to some kind of LRM analysis to determine the proportionality of a human rights restriction.

In our article, we mapped the Court’s LRM case law up to 2013. At that time, something was moving in this area. In 2012, in the judgments of Mouvement Raëlien Suisse v. Switzerland and Nada v. Switzerland, the Grand Chamber had endorsed in general terms some version of the LRM test. Continue reading →

Mammadov v. Azerbaijan: It Is about Effectiveness of the Strasbourg System.

Guest Blogger Infringement proceedings, Mammadov v. Azerbaijan, Uncategorized

By Kanstantsin Dzehtsiarou (University of Liverpool)

Infringement proceedings: the question of legitimacy

In 2010, when Protocol 14 entered into force, it amended Article 46 of the European Convention on Human Rights (ECtHR). Section 4 was added to this Article. It empowered the Committee of Ministers of the Council of Europe to initiate infringement proceedings before the Grand Chamber of the ECtHR. On 5 December 2017, the Committee of Ministers chose to use this procedure for the first time in history and referred the case of Ilgar Mammadov v Azerbaijan to the Court. The Grand Chamber of the ECtHR must now decide whether Azerbaijan has indeed failed to fulfil its obligations under the Convention. Continue reading →

No overbroad suppression of extremist opinions and ‘hate speech’

Guest Blogger Freedom of Expression, hate speech, Stomakhin v. Russia

By Dirk Voorhoof, Human Rights Centre, Ghent University and Legal Human Academy

In its recent judgment in Stomakhin v. Russia, the European Court of Human Rights (ECtHR) launched the message to all domestic authorities to adopt a “cautious approach” in determining the scope of “hate speech” crimes and to avoid “excessive interference” with the right to freedom of expression, especially when action is taken against ‘hate speech’ or extremist opinions that are mere criticism of the government, state institutions and their policies and practices. The judgment of 9 May 2018, in which the ECtHR unanimously found a violation of Article 10 ECHR, sets an important standard: as judge Keller observed in her concurring opinion, “it is the first time that this Court has had to decide on a case which stems from the application of the Suppression of Extremist Activities Act (..), and will thus be the starting point of a body of case-law which will serve as a reference not only in future cases concerning Russia, but for all other Member States as well.” Continue reading →

Ill-treatment in the war against terror: the cases of Al Nashiri v. Romania and Abu Zubaydah v. Lithuania

Guest Blogger Abu Zubaydah v. Lithuania, Al Nashiri v. Romania, Extraordinary rendition, Prohibition of Torture

By Christina Kosin, Ph.D. Candidate and Academic Assistant at the German Police University

On 31 May 2018 the European Court of Human Rights (ECtHR) ruled in the cases of Al Nashiri v. Romania and Abu Zubaydah v. Lithuania that the Contracting States Romania and Lithuania violated multiple provisions of the European Convention on Human Rights (ECHR), among others the substantive and procedural limb of Art. 3 ECHR – the prohibition of torture and inhuman and degrading treatment or punishment. Neither in Al Nashiri nor in Abu Zubaydah did public authorities from Romania or Lithuania themselves inflict ill-treatment on the applicants who were under suspicion to be involved in terrorist activities. The Strasbourg Court found a substantive breach of Art. 3 ECHR on the basis of the conduct of a third party, the Central Intelligence Agency of the USA (CIA), at secret detention sites within the jurisdictions of Romania and Lithuania. The ECtHR established “beyond reasonable doubt” that Romania as well as Lithuania knew of the CIA’s activities in their respective territories at the material time. For this reason, it considered that Romania and Lithuania had acquiesced in and consented to the High-Value Detainee (HVD) Programme of the US and therefore held them responsible for the inhuman treatment suffered by the applicants at the hands of US officials. Continue reading →

Benedik v Slovenia: Police need a court order to access subscriber information associated with a dynamic IP address

Guest Blogger Benedik v Slovenia, Intellectual Property, Right to Private Life

By Argyro Chatzinikolaou, (Doctoral Researcher), Law & Technology research group, Ghent University

Recently, the Fourth Section of the Court held in its judgement in the case of Benedik v Slovenia that there had been a violation of Article 8 (right to respect for private and family life) with regard to the failure of the Slovenian police to obtain a court order before accessing subscriber information associated with a dynamic IP address[1]. More precisely, according to the Court, the legal provision used by the Slovenian police in order to access subscriber information associated with a dynamic IP address without first obtaining a court order had not met the Convention standard of being ‘in accordance with the law’.
Continue reading →