Month: July 2019

Volodina, Article 3, and Russia’s systemic problem regarding domestic violence

Corina Heri Domestic Violence, Prohibition of Torture, Volodina v. Russia, Vulnerability

By Corina Heri, postdoctoral researcher at the University of Amsterdam

‘When he kills you, come and see us’, police reportedly told the applicant in Volodina v. Russia before proceeding to ignore her allegations of domestic violence. On 9 July, the Third Section found that the respondent State had violated its positive obligations under Article 3 and, applying a gender-based approach, held that Russia has a large-scale structural problem when it comes to domestic violence. This post discusses the Chamber’s findings under Articles 3 and 14 ECHR, the question of whether this treatment constituted torture, and how to test compliance with the obligation to prevent ill-treatment. Continue reading →

A Bumpy Road to Strasbourg: Ups and Downs of the Ukrainian National Selection Process

Guest Blogger Council of Europe, Election ECtHR Judges

By Dr. Kanstantsin Dzehtsiarou (University of Liverpool)

I have already written two blog posts on the issue of election of judges of the European Court of Human Rights in Ukraine here and here. To sum up, the election of the new Ukrainian judge meant to take place in December 2018, but the Ukrainian authorities have only opened the national completion in March 2019 which meant that the whole process is way behind the schedule. I was quite critical of the then proposed design of the competition as it did not comply with the recommendations of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe. Since then the Ukrainian authorities have completely reloaded this competition, changed the rules of the game and reached the pinnacle of the national selection – interviews of the candidates. Recent presidential elections and changes in personnel in presidential administration were perhaps the key reasons why the previous competition was stopped and a completely new procedure was designed. Apart from that, academic criticism and litigation initiated by leading Ukrainian lawyers helped to bury the old competition. The new procedure was promising but its practical application puts the legitimacy and fairness of the whole process in some doubt. Continue reading →

Parental Child Abduction is back on the agenda of the European Court of Human Rights

Guest Blogger Children's Rights, O.C.I and Others v. Romania, Right to Respect for Family Life

Simona Florescu PhD fellow, Leiden Law School, the Child Law Department

Parental child abduction has been a frequent occurrence for the European Court of Human Rights with the case of O.C.I. and others v Romania being the latest in a series of more than 70 applications. The Court decided these cases in several formations, ranging from the Grand Chamber, to the Chamber and most recently to the Committee of three judges. These formations are indicative of the importance the Court attaches to the issues raised by parental child abduction cases. On the basis of O.C.I. and Others v Romania, we could thus infer that child abduction has become a matter of well-established case law which does not require a too detailed analysis.[1] This may well be the perspective of the ECtHR, however, child abduction is anything but well-established case law[2] and it is precisely in these cross border cases that the Court can and should make a significant contribution in standard setting.

It is for this reason that I have decided to write this blog post. I argue that the Court – and human rights practitioners in general – need to be alert of the difficulties that cross border cases raise for individuals. In these cases, domestic courts of one country are expected to defer the analysis of the merits of the case to the domestic courts of the other country. In the midst of such deferral, and because there is no supranational supervision (other than that of the ECtHR), there is a risk of lower or no protection for human rights. Therefore, dispensing with this case in a Committee of three judges does not do justice to the many complexities raised by child abduction cases. I argue that the case of O.C.I. and others v Romania is one example where, in my opinion, there is more at stake than what the Court makes of it. Continue reading →

A and B. v. Croatia and the concurring opinion of Judge Wojtyczek: the procedural status of the ‘disappearing party’

Guest Blogger A and B v. Croatia, Article 36, Right to Respect for Family Life

Claire Loven – PhD researcher at the Montaigne Centre for Rule of Law and Administration of Justice (Utrecht University)

On 20 June 2019 the European Court of Human Rights (ECtHR or Court) delivered a judgment in A and B. v. Croatia on the investigation of allegations of child sexual abuse. A, the mother of B, accused B’s father of sexually abusing the four-year-old B. After the Croatian State Attorney’s Office decided against prosecuting the father, finding that it could not conclude that C had committed any prosecutable offence, A and B lodged a complaint before the Court. They complained about the failure of the Croatian authorities to provide a proper response to allegations of child sexual abuse. By four votes to three the Court found that there had been no violation of the procedural aspects of Article 3 (prohibition of torture) and Article 8 (right to respect for private and family life). The sharp division within the Chamber is not only reflected in the bare majority vote on the outcome, but also in the fact that, together, the concurring and dissenting opinions are just as long as the Court’s judgment. The joint concurring opinion by Judges Koskelo, Eicke and Ilievski and the joint dissenting opinion by Judges Sicilianos, Turković and Pejchal focus on the scope of the case, whilst Judge Wojtyczek raises the issue of the father not having a role in the Court’s proceedings. In this blogpost, I leave the issues raised by Koskelo et al. and Sicilianos et al. for other commentators, and focus on the particular issues raised by Wojtyczek. Continue reading →

A Court Divided: discord and disagreement in Rola v. Slovenia

Guest Blogger Article 1 of Protocol No. 1, Article 4 of Protocol No. 7, ne bis in idem, Rola v. Slovenia

This post was written by Bas van Bockel, Senior Lecturer of EU law, at Utrecht University.

In a judgment delivered on June 4 by the 4th Chamber of the ECtHR, no less than 3 separate opinions – both partly dissenting and partly concurring – were delivered by 5 of the 7 judges sitting on the case. The facts of the case appear unremarkable, making it all the more surprising that the judges ostensibly found it so difficult to reach agreement between them. What is particularly concerning is that the Court appears to disagree fundamentally on one of the most well-established doctrines from its own case law, the Engel doctrine. The result is puzzling, and raises the question of how the national judiciary can be persuaded to follow the case law of the ECtHR if the Court itself appears so divided on its proper interpretation and implications. Continue reading →

Russia left, threatened and won: Its return to the Assembly without sanctions

Guest Blogger Council of Europe, Parliamentary Assembly, Russia

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

The background story: The Assembly takes action

As has been recounted on this blog and on other blogs already (see here and here as well), the Parliamentary Assembly of the Council of Europe (Assembly) and Russia have been in a row ever since the Assembly suspended the voting rights and some other rights of the Russian delegation in April 2014 (see also here). The Assembly took this measure because of, inter alia, Russia’s annexation of Crimea. In response, Russia has not submitted the credentials of its delegation since 2016. Moreover, Russia suspended its payment to the Council of Europe.

These events have not only led to serious financial consequences for the Organisation (by the end of 2019, Russia will have a debt of 90 million euros), but have also led Russia to question the binding nature of the European Court of Human Rights’ (Court) judgments, considering that it has not participated in the election of most of the Court’s current judges. To make things even worse, Russia has threatened to leave the Council of Europe if it would not be permitted to participate in the election of the new Secretary General during the June 2019 session (see also here). Russia has made its return to the Assembly conditional on the Assembly removing from its Rules of Procedure the provisions concerning the challenging of credentials and the imposition of sanctions. As a result of these events, the Council of Europe is now in a ‘deep political and financial crisis’. Continue reading →