Month: April 2020

Blog Symposium “Strasbourg Observers turn ten” (6): S.A.S. v. France: an ongoing learning experience

Saïla Ouald Chaib Anniversary Symposium, S.A.S. v. France

In February, not long before we all went in lockdown, I attended an event with civil society organisations in Brussels concerning litigation and advocacy strategies. One of the organizers approached me as she recognized my name from the Strasbourg Observers blog and she explained how the series we published on the case of S.A.S. v. France helped her to understand the case more deeply. Little did my colleagues and I realize, I thought, how broad our readership would become, when we enthusiastically founded the Strasbourg Observers blog 10 years ago. A readership, which includes scholars, practitioners and civil society organisations. I am very grateful for that and for the work of my colleagues who are keeping the blog going these days.

Not long after that encounter, I was asked by my colleague Claire Poppelwell to write a reflection on the post I co-authored with dr. Lourdes Peroni on the S.A.S. case back in 2014. This commitment took me on a trip down memory lane Continue reading →

The end of the Interlaken process: A (yet another) missed opportunity to guarantee the long-term future of the ECtHR?

Guest Blogger CDDH, Committee of Ministers, Interlaken Declaration

This post was written by Stefanos Xenofontos, PhD Researcher at Birmingham Law School

The Steering Committee for Human Rights (CDDH) has recently submitted its contribution to the evaluation of the Interlaken process for the reform and future of the European Court of Human Rights (ECtHR or ‘the Court’). Building upon its assessment in the 2015 report on the matter, the CDDH’s latest report, signals the end of a decade-long reform process, at least at a technical level. The ECtHR has pledged to reply to the Report in 2020 (See, Foreword by President Sicilianos). Despite its importance, however, the CDDH’s Report did not attract much (academic) attention to date – something that the present post seeks to compensate. In what follows, after presenting the main conclusions reached by the CDDH, I argue that a rather conservative approach regarding the framework of the ongoing reform process remains apparent. In other words, the CDDH’s primary focus is on sustaining the current status quo of the European Convention on Human Rights (ECHR) system while disregarding any other possible alternative reform outside this existing framework. In this regard, I question whether the current reform framework, and measures adopted within it so far, have been sufficient in addressing and/or resolving the underlying challenges facing the ECtHR. The post concludes that in the absence of a clear determination of what the future role of the ECtHR should be, in a way that best reflects its regional, supranational and subsidiary character, the root causes of the Court’s challenges will continue to be overlooked and its viability and long-term effectiveness will be difficult to achieve.

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Announcement: Webinar “The State’s positive obligations under IHRL during the coronavirus outbreak” (5 May)

Strasbourg Observers Covid-19

After thought-provoking webinars on “Human Rights in the Times of Coronavirus” and “Council of Europe: The Conscience of Europe in a Time of Crisis” (recorded versions of which are available here and here), next week a third webinar in the series will address the role of positive obligations in the context of Covid-19. The webinar takes place on Tuesday 5 May at 3 pm UK time, 4 pm CET. Here is the announcement:

The State’s positive obligations under IHRL during the coronavirus outbreak

Webinar

5 May 2020

3pm (UK time) Continue reading →

Refusal to give access to ‘confidential’ information about politicians violated NGO’s Article 10 rights

Guest Blogger Access to information, Centre for Democracy and the Rule of Law v. Ukraine, Magyar Helsinki Bizottság v Hungary

By Ronan Ó Fathaigh and Dirk Voorhoof

On 26 March 2020, the European Court of Human Rights unanimously found that a refusal by the Ukrainian authorities to give a non-governmental organisation (NGO) access to information about the education and work history of top politicians as contained in their official CVs, filed as candidates for Parliament, violated the NGO’s right of access to public documents under Article 10 ECHR. The Court in Centre for Democracy and the Rule of Law v. Ukraine, highlighted that it was the first case from Ukraine on access to information since the Grand Chamber’s seminal 2016 Magyar Helsinki Bizottság v. Hungary judgment, and that it raised ‘novel’ issues for Ukraine’s authorities and courts. This judgment, delivered during the Covid-19 pandemic, clearly illustrates how important it is, more than ever, that the Court applies strict scrutiny under Article 10 in cases on access to public documents, recognising the importance of transparency on matters of public interest. Continue reading →

Blog Symposium “Strasbourg Observers turn ten” (5): Daring to think – the spirit of human rights

Guest Blogger Anniversary Symposium, Hirsi Jamaa and Others v. Italy, Migration

By Marie-Bénédicte Dembour

Have the Strasbourg Observers really been running only for ten years? On receiving the invitation to celebrate this anniversary, my mind travelled back to the time before your emergence, and I felt rather isolated in my critical approach to the study of the European Court of Human Rights. Long before I joined Ghent’s Human Rights Centre last October, you have provided me – and no doubt others – with a sense of ‘home’. With this post I want to acknowledge my immense gratitude. I shall do so not by tracing the case law since Hirsi Jamaa and Others v Italy but by reflecting upon how my two posts on this case of 2012 were differently read. My point will be to highlight how the Strasbourg Observers have created an essential space for actively engaging and debating what the spirit of human rights might or should entail.

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Blog Symposium ‘Strasbourg Observers turns ten” (4) Wedging the Door? The Paposhvili Opening Three Years Later

Lourdes Peroni Anniversary Symposium, Paposhvili v. Belgium, Prohibition of Degrading Treatment, Savran v. Denmark

Lourdes Peroni, Lecturer in Human Rights, Sheffield Hallam University, UK

I am thrilled to be part of this Blog Symposium to celebrate the 10th anniversary of the Strasbourg Observers with some reflections on the memorable Grand Chamber judgment in Paposhvili v. Belgium. In December 2016, amidst a growing number of dissenting voices pushing for change within the Court, Paposhvili came to soften the restrictive application of the high Article 3 threshold that had prevailed in cases concerning the expulsion of seriously ill migrants. The pre-Paposhvili approach meant that, in practice, Article 3 protection was offered to this group of applicants only in very exceptional cases, namely in cases in which applicants were close to death at the time of expulsion.

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The right to education in Transdniestria seven years after Catan and Others v. Moldova and Russia: are we there yet?

Guest Blogger Catan and Others v. Moldova and Russia, Right to Education, Transdniestria, Uncategorized

By Linda Hamid, Research Fellow at the Leuven Centre for Global Governance Studies – Institute for International Law, KU Leuven

On 4 December 2019, during a research stay in the Republic of Moldova, I travelled to the village of Doroțcaia, where I visited the ‘Ștefan cel Mare și Sfânt’ lyceum and met with the principal, Ms Eleonora Cercavschi. Until August 2002, the school had been situated in Grigoriopol, a small town in the Moldavian Republic of Transdniestria (MRT or Transdniestria), which is a breakaway region in Moldova that declared independence in 1991, but has not been recognized by the international community. However, in the wake of events that will be described below, the school was evacuated from its premises by MRT ‘police’ and forced to relocate 20 km away, in Moldovan-controlled territory. As can be gathered from this post’s title, the Grigoriopol lyceum is one of the Romanian-language schools in Transdniestria concerned by the landmark European Court of Human Rights (ECtHR or the Court) Grand Chamber judgment Catan and Others v. Moldova and Russia. Ms Cercavschi, who together with her daughter was one of the applicants in the case, graciously answered my questions and recounted the circumstances leading to the school’s predicament. This post is based on insights acquired from this discussion and a few other in-depth interviews with key actors in Moldova and Transdniestria, as well as an analysis of both legal and political texts.

In what follows, I will employ the Catan judgment to briefly illustrate the quandaries surrounding the (non-)execution of ECtHR judgments in circumstances as complex as those in Transdniestria, where various actors, State and non-state alike, vie for control and influence. Inside this tangled web, legally binding obligations arising from ECtHR judgments and political commitments extraneous to them may, at times, mutually reinforce each other to give some incidental effects to the former. This, however, does not transpire as traditionally envisioned by Article 46 of the European Convention on Human Rights (ECHR or Convention), i.e. through the execution of the judgment by the State bound by it, but rather indirectly, as a byproduct of two different but ultimately complementary processes. In referring to this byproduct, I will use the terms (indirect and partial) ‘implementation’ or ‘effects’. To me, they have a broader meaning than ‘execution’, in that they may also refer to the (persuasive) authority of the Court’s judgments and their influence on other actors than the State(s) directly bound to execute them, such as will be described in this post.

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Strengthening the supervision of ECHR derogation regimes. A non-judicial avenue

Guest Blogger Covid-19

By Georgiana Epure

This contribution sheds light on the limited effectiveness of the European Court of Human Rights (ECtHR) in supervising states of emergency and highlights one possible non-judicial avenue to strengthen the supervision of derogation regimes: Article 52 of the European Convention on Human Rights (ECHR), which allows the Secretary General of the Council of Europe to open and inquiry into the effective implementation of the Convention. 

The derogation clause and the ECtHR’s limited supervisory role

An epidemic of authoritarian measures may be following on the heels of the COVID-19 pandemic, warned Fionnuala Ní Aoláin, the UN Special Rapporteur on counterterrorism and human rights. Across the Council of Europe membership, numerous countries have declared states of emergency in order to take unprecedented measures to tackle the COVID-19 pandemic. Continue reading →

Announcement: Webinar “Council of Europe: The Conscience of Europe in a Time of Crisis” (21 April)

Strasbourg Observers Covid-19

In follow-up to the succesful webinar on “Human Rights in the Times of Coronavirus” (a recorded version of which is available here), next week another webinar is taking place on the role the Council of Europe could play in the context of the Covid-19 crisis. The webinar takes place on Tuesday 21 April at 4 pm UK time, 5 pm CET. Here is the announcement:

 

Council of Europe: The Conscience of Europe in a Time of Crisis

Webinar

21 April 2020

4 pm

https://zoom.us/j/164030987 (if you wish to participate and ask questions. Come early limited to 100 participants)

https://youtu.be/LrHejIHHAfQ (if you wish to follow the livestream)

The panellists will discuss the role and potential influence of the Council of Europe on the ongoing COVID-19 crisis. The panellists will discuss the expectations and reality of what can be done by a human rights institution in time of de facto emergency.

Panellists:

Chairs: Prof Kanstantsin Dzehtsiarou (University of Liverpool) and Dr Stuart Wallace (University of Leeds)

Dr Veronika Bilkova (Charles University in Prague, Venice Commission)

Prof Philip Leach (University of Middlesex)

Rob Linham OBE (Deputy UK Permanent Representative to the Council of Europe)

Jörg Polakiewicz (Director of Legal Advice and Public International Law Legal Adviser of the Council of Europe)

Prof Ineta Ziemele (President of the Constitutional Court of Latvia, Former Judge of the European Court of Human Rights)

 

Update (22/04): for those who were unable to join, you can watch the recorded version of this Webinar on YouTube.

Blog Symposium “Strasbourg Observers turns ten” (3) – Gäfgen v. Germany: Some Reflections, Ten Years On

Guest Blogger Anniversary Symposium, Gäfgen v. Germany

By Stijn Smet, Assistant Professor of Constitutional Law at Hasselt University

I was sitting on the grass outside a classroom at the University of Vienna when I first understood why notions like control, power(lessness) and vulnerability are central to the interpretation of the absolute prohibition of torture. It was a warm and sunny day in Spring, and Manfred Nowak had led us out of the classroom and onto the grass for one of his lectures. Nowak was UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment at the time, and we were enrolled in his university course on torture.

The two scenarios Nowak presented to us that afternoon, as we were sitting comfortably on the grass, decisively shaped my understanding of torture. Nowak asked us which treatment we would qualify as torture: a police officer shooting a suspect in the leg, from behind, as he was fleeing down the streets (in my recollection, it was the left leg); or that same police officer putting out a cigarette on the hand of a suspect in custody. Nowak’s intention was, of course, to encourage us to reflect on the essence of torture. He invited us to consider the idea that powerlessness of the victim and control by the authorities may be at least as important factors as the severity of the physical harm inflicted. Continue reading →

What Can the European Court of Human Rights Do in the Time of Crisis?

Guest Blogger Covid-19

By Prof Kanstantsin Dzehtsiarou (University of Liverpool, Editor-in-chief of the European Convention on Human Rights Law Review)

In my previous blog post I have analysed what consequences the COVID-19 crisis might have on Human Rights enshrined in the European Convention on Human Rights. Here I will look at the institutional aspect of what the Strasbourg Court can do to ensure ongoing human rights protection in the face of the COVID-19 crisis. Unfortunately, my preliminary answer is not that much. The nature of the European Court of Human Rights as well as many other courts around the world is that they predominantly act post factum, in other words they assess the events after they have already taken place. That said, it is not impossible for the Court to get involved in the current affairs, even though the scope of such involvement is quite limited. In the following parts I will analyse what the Court can and should do in the current situation. Continue reading →

Blog Symposium “Strasbourg Observers turns ten” (2): The Court’s subtle approach of online media platforms’ liability for user-generated content since the ‘Delfi Oracle’

Guest Blogger Anniversary Symposium, Delfi v. Estonia, Freedom of Expression, technology

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

On 18 June 2015, Strasbourg Observers published our blog post ‘Delfi AS v. Estonia: Grand Chamber confirms liability of online news portal for offensive comments posted by its readers’. It situated and commented the Grand Chamber judgment of 16 June 2015 in the first case before the European Court of Human Rights on online media liability for user-generated content. In particular the application and impact of Article 10 ECHR was tested with regard to the liability of an online news portal for offensive (anonymous) comments posted by its readers below an online news article (see the Grand Chamber judgment in Delfi AS v. Estonia). The Grand Chamber, by fifteen votes to two, found the imposition of liability of the Estonian news portal justified and proportionate, in particular because the users’ comments had been extreme and had been posted in reaction to an article published by Delfi on its professionally managed news portal run on a commercial basis. The circumstance that Delfi had immediately removed the offensive content after having received notice of it, did not suffice to exempt Delfi from liability. Now this blog post, nearly five years after the final Delfi judgment, focusses on the impact of the Delfi case and gives a short overview of the further developments in the Court’s case law determining the scope of liability of internet platforms or other online intermediaries for user-generated content. Finally we refer to the initiative by the Committee of Ministers of the Council of Europe recommending the member states to respect and  apply a set of guidelines when implementing the legislative frameworks relating to internet intermediaries, including some principles guaranteeing users’ rights to freedom of expression in the online environment. Continue reading →

Blog Symposium “Strasbourg Observers turns ten” (1): a cause for celebration!

Laurens Lavrysen Anniversary Symposium

Dear readers,

This month we’re celebrating Strasbourg Observers’ 10th anniversary. In order to celebrate this event, we’re launching a blog symposium, on which you’ll read more below. But first a bit of history.

In April 2010, Strasbourg Observers was founded by Professor Eva Brems and a team of five PhD researchers from the Human Rights Centre of Ghent University: Alexandra Timmer, Lourdes Peroni, Maris Burbergs, Saïla Ouald Chaib and Stijn Smet. I personally joined the blog a couple of months later, in October 2010, as a recently graduated 22-year old at the beginning of my PhD research. It was an exciting time to join these bright young minds at our Human Rights Centre, which was then turning into a genuine ECHR knowledge centre – think for instance also of the practice the Human Rights Centre has developed in submitting third party interventions to the Strasbourg Court in cases that come within the scope of our academic expertise. All of this would not have been possible had Eva Brems not obtained funding from the European Research Council for the project “Strengthening the European Court of Human Rights: More Accountability through Better Legal Reasoning”. Continue reading →

The Court’s first ruling on Roma’s access to safe water and sanitation in Hudorovic et al. v. Slovenia: reasons for hope and worry

Guest Blogger Hudorovic et al v. Slovenia, Prohibition of Discrimination, Right to Respect for Family Life, Right to Respect for Home, Right to Water, Uncategorized

This blogpost is written by Valeska David who is an Affiliated Researcher at the Human Rights Centre of Ghent University and Assistant Professor of International Law at University of Navarra. She has recently published the book ‘Cultural Difference and Economic Disadvantage in Regional Human Rights Courts: An Integrated View’ (Intersentia, 2020).

On 10 March 2020, the Strasbourg Court delivered its judgment in Hudorovic et al. v. Slovenia (App. nos. 24816/14 and 25140/14). The case deals with two complaints from Roma families who have been living in informal settlements without access to water, sanitation, sewage, and electricity for decades. The Court has previously dealt with the living conditions of Roma irregular settlements (e.g. Winterstein and Yordanova) as well as with the contamination of water resources resulting in health and environmental risks (e.g. Dzemyuk and Dubetska). This is the first time, however, that it has to examine whether the right to access safe drinking water and sanitation is protected by the Convention (particularly under Article 8 ECHR). This important question is furthermore posed in relation to the social group most affected by inequality in access to water in the first European country to make water a constitutional right. The case understandably attracted third party interventions from the European Roma Rights Centre and the Human Rights Centre of Ghent University, the latter available here.

Access to clean water and sanitation might sound too basic to be an issue in today’s Europe. But the truth is that securing universal access to such essential goods continues to be a pending challenge, especially for Roma people. At a time in which the European Parliament and the Council are discussing the adoption of a so-called Drinking Water Directive,[1] the Strasbourg Court is being called to play its part. The Court can significantly contribute to develop common minimum standards to ensure that everyone, especially those historically discriminated against can effectively enjoy water rights in Europe. From this perspective, however, this post argues that the judgment in Hudorovic offers a mixed picture, one of both hope and worry. Before explaining why, I shall briefly summarise the facts of the case and the Court’s findings.   Continue reading →

Positive Obligations in Crisis

Guest Blogger Positive Obligations, Prohibition of Inhuman Treatment, Prohibition of Torture, Right to Life

Dr Natasa Mavronicola is Reader in Law at Birmingham Law School, University of Birmingham. She has written extensively on the right to life and the right not to be subjected to torture or to inhuman or degrading treatment or punishment. She is co-editor of Lavrysen & Mavronicola (eds), Coercive Human Rights: Positive Duties to Mobilise the Criminal Law under the ECHR, forthcoming with Hart Publishing (2020).

On the flip side of rights are wrongs. It is now indisputable that the State may wrong us as a matter of human rights law not only by actively mistreating us, but also by failing to protect us from certain harms. The European Court of Human Rights (ECtHR) boasts a formidable jurisprudence on positive obligations borne by States to protect persons within their jurisdiction from grave threats to our life or physical or mental integrity. It is important to understand and apply these appropriately to the current crisis, particularly as positive obligations to protect life are being actively invoked, in the context of the coronavirus pandemic, to justify extensive (coercive) measures across Council of Europe States.

In this short piece, focusing on positive obligations under the European Convention on Human Rights (ECHR), I want to underline the following: (a) the State bears positive obligations to protect, rather than coerce; (b) the State’s positive obligations do not extend to duties to act unlawfully under the Convention; and (c) positive obligations must be responsive to, and entail ancillary obligations to determine, the relevant context and risk. Continue reading →

Grimmark v. Sweden and Steen v. Sweden: no right for healthcare professionals to refuse to participate in abortion services, and framing strategies by anti-abortion actors.

Guest Blogger Admissibility, Freedom of Religion, Grimmark v. Sweden, Steen v. Sweden

This blogpost was written by Niklas Barke, PhD Candidate, Institute for Human Rights, Åbo Akademi University

On the 11th of March, the European Court of Human Rights (the Court) issued its decisions in Grimmark v. Sweden and Steen v. Sweden, two cases casting light on the issue of refusal by healthcare professionals to participate in abortion procedures. The Court in these fairly straight-forward decisions rejected the Applicants’ complaints as manifestly ill-founded. Rather, the Court found the Swedish authorities’ decision to not employ midwives who refused to participate in abortion procedures complied with Article 9 of the European Convention on Human Rights (the Convention). These two cases are ground-breaking in that this is the first time that the Court decides on the issue of a purported right to refuse to carry out work duties in relation to abortion. Earlier cases relating to so-called conscientious objection have either related to other substantive issues, or been considered from the opposite perspective, that is, in relation to complaints that such refusal has impeded the possibilities to access legal abortion. Building on landmark cases such as R.R. v. Poland (2011) (blog posts here and here, P. and S. v. Poland (2012) (blog post here), Pichon and Sajous v. France (2001), Regner v. the Czech Republic (2017) (blog post here), Skugar and others v. Russia (2009), and Eweida and others v. the United Kingdom (2013) (blog posts here and here), the cases against Sweden follow the trajectory of previous case-law concerning abortion services, refusal to perform work duties, and the question whether there is a right to hold a certain work position. The Court also rejected the Applicants’ complaints under Articles 10 and 14 of the Convention, respectively. However, the focus of this comment will exclusively be on the decision under Article 9.

Continue reading →

Announcement: Webinar on Human Rights in the Time of Coronavirus (7 April)

Strasbourg Observers Article 15, Covid-19

Dear readers,

This week, an interesting debate took place on our blog regarding the necessity and/or desirability of derogation under Article 15 in the context of the Covid-19 crisis. The poll we launched yesterday on this question is still quite tight, indicating that many people continue to disagree on the path to take. At Strasbourg Observers, we are therefore very happy to support continued debate on this question in the form of a webinar, which will take place next Tuesday (7 April) at 4 pm UK time, 5 pm CET. Here is the announcement:

 

Human Rights in the Time of Coronavirus: Does England’s Lockdown Violate Human Rights Law?

Webinar

7 April 2020, 4 pm (UK time)

https://zoom.us/j/335812961 Continue reading →

To derogate or not to derogate? Poll on emergency Covid-19 measures

Strasbourg Observers Article 15, Covid-19

These are exceptional times. Covid-19 represents a threat to public health in Europe of an extent that is unprecedented in modern times. At the same time, the restrictions on normal life imposed by Council of Europe Member States in response to the outbreak are a test case for the ECHR regime. While the Strasbourg Court itself has temporarily suspended most of its activities, including the delivery of new judgments, the human rights pressures generated by the Covid-19 crisis continue to provide a source for vigorous debate within the ECHR community. An important question that currently divides the ECHR community  is whether or not States should make a derogation under Article 15 ECHR with a view to taking the necessary measures in response to the public health emergency. Via the poll below, we would like to enquire into the view of you, our readers, on the necessity and/or desirability of States making such a declaration. Continue reading →

States should declare a State of Emergency using Article 15 ECHR to confront the Coronavirus Pandemic

Guest Blogger Article 15, Covid-19

By Alan Greene

Carl Schmitt is, without a doubt, the pre-eminent scholar on states of exception. However, his famous maxim of ‘Sovereign is he who decides on the exception’ has tainted the debate on emergency powers, emphasising their antagonistic relation to the legal order they are supposed to protect and downplaying their protective potential. In this post, I argue why Article 15 of the European Convention on Human Rights (ECHR) should be used to accommodate the emergency lockdown powers necessary to confront the Coronavirus pandemic. This is the closest we shall get to an ‘ideal state of emergency’—the very thing it was designed for. In contrast, far from protecting human rights, failure to use Article 15 ECHR risks normalising exceptional powers and permanently recalibrating human rights protections downwards. Continue reading →