Month: October 2018

Prosecution of a publisher for ‘denigration’ of Turkey violated Article 10

Guest Blogger Article 46, Fatih Tas v Turkey, Freedom of Expression

This blog post was written by Ronan Ó Fathaigh

On 4 September 2018, the European Court of Human Rights delivered a unanimous judgment on Turkey’s controversial Article 301 insult law, and for the first time applied Article 46 of the European Convention, holding that amending the insult law would “constitute an appropriate form of execution” of the Court’s judgment. The Fatih Taş v. Turkey (No. 5) judgment is notable not only for its application of Article 46, but also given that it is the fifth set of criminal proceedings the Court has considered against an Istanbul-based publisher over the publication of various books and periodicals (see  Fatih Taş v. Turkey, Fatih Taş v. Turkey (No. 2), Fatih Taş v. Turkey (No. 3), and Fatih Taş v. Turkey (No. 4)). In all five judgments, including four in the past year alone, the Court has found violations of Article 10’s guarantee of freedom of expression, or Article 6 over the length of the criminal proceedings.   Continue reading →

Is the European Court of Human Rights capable of changing legal systems? Judgment in Aliyev v Azerbaijan.

Guest Blogger Aliyev v. Azerbaijan, Implementation judgments

By Kanstantsin Dzehtsiarou (University of Liverpool)

In spring 2014, shocking news came from Azerbaijan. Leading human rights defenders including Mr Intigam Aliyev were arrested and charged with various financial crimes. It was clear that these charges were just a cover-up for the silencing of vocal critics of the government and for the destruction of an effective human rights defence in the country. It is not surprising that those arrested and charged brought their cases to the European Court of Human Rights (ECtHR or Court). In September 2018, more than two years after Mr Aliyev was in fact released, the Court has delivered its judgment in his case. There are plenty of reasons to praise this judgment; the Court unanimously found plenty of violations of the Convention including violations of Articles 3, 5, 8 and 18. Under Article 18, the Court found that the true purpose of the arrest was not punishment for the crimes committed by the applicant but retaliation for being a human rights defender. As it is often the case, this judgment came slightly too late because the applicant has already been released from prison but it helpfully reinforces a line of judgments showing that Azerbaijani authorities use criminal law to silence its opponents. This blogpost will however focus on a more problematic aspect of this judgment, namely the Court’s attempts to improve the legal system in Azerbaijan by defining general measures that must be implemented to effectuate this judgment. Continue reading →

Comparing the Proposed EU Directive on Protection of Whistleblowers with the Principles of the European Court of Human Rights

Guest Blogger Freedom of Expression, Guja v. Moldova, Whisteblowers

By Vigjilenca Abazi (fellow at Yale Law School) and Flutura Kusari (legal advisor at the European Centre for Press and Media Freedom)

In April 2018, the European Commission put forward a much-anticipated ‘package of measures’ to strengthen whistleblower protection in the European Union. This includes a proposal for a Directive on the protection of persons reporting on breaches of Union law, which offers minimum standards of harmonization on whistleblower protection in certain fields of EU competences. After years of pro-whistleblowing campaigns by civil society and efforts by the European Parliament (EP) to induce the Commission to propose legislation, whilst the latter continuously rejected such calls, the mere fact that the Commission proposed a binding legal act is viewed as a significant progress. Whether the proposed Directive will be approved remains to be seen as it currently undergoes a lengthy process of review by the Council and the EP under the ordinary legislative procedure. Continue reading →

S.V. v. Italy: on temporality and transgender persons

Guest Blogger LGBT Rights, Right to Private Life, S.V v. Italy

By Pieter Cannoot, PhD Researcher at the Human Rights Centre of Ghent University

On 11 October 2018, the European Court of Human Rights found a violation of Article 8 ECHR in a case involving a transsexual woman called S.V. The application concerned the Italian authorities’ refusal to authorise S.V. officially changing her first name on the grounds that no judicial ruling had confirmed the successful completion of sex reassignment therapy, even though she had been socially and physically transitioning for several years. According to the Court, this waiting period had resulted in feelings of vulnerability, humiliation and anxiety, which amounted to a disproportionate interference with S.V.’s right to respect for private life. Continue reading →

Role of the constitutional courts in the system of the effective domestic remedies – a new approach on the horizon? Criticism of the Mendrei v. Hungary decision

Guest Blogger Effective remedy, Exhaustion of domestic remedies, Mendrei v Hungary

By Dr. Dániel A. Karsai, attorney at law, Dániel Karsai Law Firm

The European Court of Human Rights (hereinafter: the Court) recently adopted the Mendrei v. Hungary (no. 54927/15) decision on 5 July 2018. In this very important decision, the Court changes fundamentally, and in my opinion negatively, its understandings of the role of the constitutional courts in the system of domestic remedies and the required level of protection of Convention rights. The prospects of the negative changes are not mere Cassandra’s curse; since in Mendrei the Court accepted a legal avenue before the Hungarian constitutional court to be an effective remedy, whereas this procedure can only result in the quashing of the underlying regulations without curing the injustice concerned. Moreover, it turned upside-down the burden of proof previously vested on the governments concerning the effectiveness of a remedy, and, last but not least, the impartiality of the proceedings can be seriously questioned.

Continue reading →

Big brother may continue watching you

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

By Judith Vermeulen (PhD Candidate, Law & Technology Research Group, Ghent University)

On 13 September 2018, more than five years after Edward Snowden revealed the existence of electronic (mass) surveillance programmes run by the intelligence services of the United States of America and the United Kingdom, the European Court of Human Rights (‘ECtHR’) found two UK data collection regimes – one of which will not be discussed here[1] – to violate Article 8 of the ECHR.[2] A third one, being part of the information sharing arrangements between these so-called “Five Eyes” countries was, on the contrary, considered to involve a justified interference with the right to respect for private life

While the long-awaited Big Brother Watch and Others v. UK judgment, which joined three actions, signifies another victory for civil liberties and privacy advocating non-profit organisations and activists – no less than 16 being the applicants in this case – some serious matters of concern remain. Continue reading →

Savva Terentyev v. Russia: criminal conviction for inciting hatred against the police violated a blogger’s freedom of expression

Guest Blogger Freedom of Expression, Savva Terentyev v. Russia

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

In Savva Terentyev v. Russia the ECtHR has applied a very high level of free speech-protection for aggressively insulting and hostile comments about police officers, published on a weblog. The ECtHR observes that some of the wording in the blog post was offensive, insulting and virulent, but it found that the (emotional and sarcastic) comments as a whole could not be seen as inciting to hatred or violence. In contrast with the findings by the Russian authorities, the ECtHR is of the opinion that Terentyev’s blog did not pose “a clear and imminent danger” and could not be seen as stirring up “base emotions or embedded prejudices” attempting to incite hatred or violence against Russian police officers. Continue reading →

Inhumane and degrading treatment in the workplace: a first for the European Court of Human Rights?

Guest Blogger Hovhannisyan v. Armenia, Prohibition of Inhuman Treatment, Workplace

This guest post was written by Cathérine Van de Graaf, a PhD student at Ghent University.

In its recent judgment of Hovhannisyan v. Armenia, the European Court of Human Rights ruled that the State authorities failed to conduct a proper investigation into a civil servant’s allegations of ill-treatment by her superiors during an argument over her appraisal report. The main issue at hand was the lack of an independent and effective investigation into the applicant’s claim that she was ill-treated by her superior at work. Continue reading →