New publication: ‘Judging Stereotypes: What the European Court of Human Rights Can Borrow from American and Canadian Equal Protection Law’

Stereotyping has appeared on the radar of the European Court of Human Rights (ECtHR) fairly recently. In contrast, stereotyping has long been a central feature of both American and Canadian equal protection law. This has led me ask what the ECtHR could borrow from the U.S. and Canadian Supreme Courts. I am happy to be able to announce that my article “Judging Stereotypes: What the European Court of Human Rights Can Borrow from American and Canadian Equal Protection Law” has now been published in the American Journal of Comparative Law (Volume 63, 2015, p. 239-284).

This article was written as part of Eva Brems’ research project “Strengthening the European Court of Human Rights: More Accountability Through Better Legal Reasoning”. The full text is available via HeinOnline.

This is the abstract: Continue reading

New publications: Vulnerability in the case law of the European Court of Human Rights

As we announced earlier, Lourdes Peroni and I have  written an article together which analyzes the development of the vulnerable group concept in the Strasbourg case law. I am happy to say that this article has now been published as:

Lourdes Peroni & Alexandra Timmer, Vulnerable Groups: the Promise of an Emergent Concept in European Human Rights Convention Law, 11 International Journal of Constitutional Law (2013), p. 1056-1085 (link is to the full-text article!).

This is the abstract:

The concept of “vulnerable groups” is gaining momentum in the case law of the European Court of Human Rights. The Court has used it in cases concerning Roma, people with mental disabilities, people living with HIV and asylum seekers. Yet the appearance of the vulnerable group concept in the Court’s legal reasoning has so far escaped scholarly attention. Drawing on theoretical debates on vulnerability and equality as well as on the Court’s case law, this Article offers a descriptive and normative assessment of the concept. Reasoning in terms of vulnerable groups opens a number of possibilities, most notably, the opportunity to move closer to a more robust idea of equality. However, the concept also has some inherent difficulties. This Article argues for a reflective use of the concept and points out ways in which the Court can avoid its pitfalls.

In relation to ECtHR case law, the concept of vulnerability proved to be a rich topic for research. Widening the inquiry beyond “vulnerable groups” to vulnerability more generally, I  have written a second piece which has also just been published:

Alexandra Timmer, “A Quiet Revolution: Vulnerability in the European Court of Human Rights”, in: Martha Fineman & Anna Grear (eds.), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate), p. 147-170.

Again, the abstract:

Without occasioning much comment, the European Court of Human Rights is increasingly relying on vulnerability reasoning. This chapter analyses that development. First it discusses the concept of vulnerability and its relationship to human rights on a theoretical level, particularly drawing on the work of Martha Fineman. Through an emphasis on universal vulnerability, Fineman’s work invites a reimagining of the human of human rights law. This chapter then examines and critiques how the Court conceives of vulnerability: it charts who are vulnerable according to the Court, and why.
The ability of vulnerability, the chapter argues, is that it allows the Court to prioritize between different claims. Vulnerability reasoning likewise enables the Court to extend certain positive obligations. Vulnerability considerations are thus at the frontlines of the Strasbourg case law. However, as a social institution the Court is also vulnerable in and of itself. This is a reality that the ECtHR will have to take seriously in order to endure as a supranational human rights court. The Court’s legal reasoning about vulnerability, and the revolutionary potential of that reasoning, is therefore ultimately limited by the Court’s own vulnerability.

Seminar Announcement: Stereotyping as a Human Rights Issue

The Human Rights Centre of Ghent University organizes a seminar on the topic of Stereotyping as a Human Rights Issue. The seminar will take place in Ghent on 4 December 2013.

The purpose of this seminar is to explore the topic of stereotyping from a wide human rights perspective. We will address questions like: How do invidious stereotypes affect the enjoyment of human rights? How came the language of stereotyping to be included in human rights treaties such as CEDAW and CRPD? Does human rights law manage to capture the harms of stereotyping? How could human rights law be improved in this respect? What potential has a focus on stereotypes to develop a more robust notion of equality in human rights law?

This is the program:  Continue reading

HIV-based employment discrimination: the ECtHR takes a strong stance in I.B. v. Greece

The Strasbourg Court has recently delivered its first judgment on the topic of HIV-based employment discrimination. I.B. v. Greece (judgment in French!) concerns a man who is HIV-positive and who was fired from his job, because his employer wished to keep the company running smoothly. What happened was that a group of I.B.’s co-workers, finding out about his HIV diagnosis, had called for his dismissal because they were afraid of contagion.

Although much of the legal reasoning in this judgment is familiar (notably from the landmark case of Kiyutin v. Russia), this ruling is notable for the strong message the Court sends about the harms of HIV-based stigma and discrimination. In this post I will highlight what are to my mind the most noteworthy aspects of this judgment, namely that the Court applies a social model of disability and that it uses the concept of vulnerable groups to narrow the margin of appreciation. The drawback of this judgment, I conclude, is that it does not give much support to HIV-positive people requiring some form of accomodation from their employer. Continue reading

Horváth and Kiss v. Hungary: a strong new Roma school segregation case

The Strasbourg Court has once more delivered a judgment in a Roma school segregation case. The applicants in Horváth and Kiss v. Hungary are two young Roma men, who were diagnosed as having mild mental disabilities when they were children. As a result of these diagnoses, they were placed in a remedial school. Their education there was poor: the curriculum was underdeveloped, their schooling did not give them access to the type of job they wanted, and they ended up de facto segregated from the wider population. The applicants claim that their education in the remedial school constituted ethnic discrimination in their enjoyment of their right to education (Article 2 Protocol 1 in conjunction with Article 14 ECHR). The Strasbourg Court rules that they’re right: it finds a violation of the Convention on the ground of indirect ethnic discrimination.

Much of the reasoning in this case is familiar from other Roma school segregation cases, such as, notably, D.H. and Others v. Czech Republic (2007) and Oršuš and Others v. Croatia (2010). In this post, I will discuss the judgment and try to highlight what’s new in the Court’s reasoning. Continue reading

C.N. v. United Kingdom: the Court addresses domestic servitude

Amongst all the rightful concerns about the Strasbourg Court’s case-overload, I often find myself wondering about the cases that the Court isn’t getting. Some structurally occurring human rights violations aren’t receiving the attention of the Court – at least not in any amount that is proportionate to their scale. Domestic violence against women is one example, as is trafficking and domestic servitude. There is an extremely worrying dearth of judgments on these issues.

C.N. v. the United Kingdom, a case about a woman who was held in domestic servitude, is therefore a welcome ruling. This is just the fourth judgment in which the Court finds a violation of the prohibition of slavery, forced labor and servitude (Article 4 ECHR).[1] In this post I will highlight the most salient aspects of the Court’s reasoning. Continue reading

The Court on Racial Discrimination (Part I): M. and Others v. Italy and Bulgaria

It’s fair to say that the Court’s record on racial discrimination is hesitant. Only as late as 2004 did the Court for the first time find that a State was guilty of racial discrimination.[1] This was in the Chamber judgment of Nachova v Bulgaria, which was later partly rescinded by the Grand Chamber in 2005. Since then, the Court’s jurisprudence on the topic of racial discrimination has rapidly expanded. The Court has delivered some strong judgments in the past years, most notably D.H. and Others v. the Czech Republic(2007). Yet the Court remains reluctant to find a violation of Article 14 of the Convention on the basis of race discrimination.

In the past few months, the Court has delivered several judgments on the topic. These cases illustrate the difficulties of the Strasbourg jurisprudence on race discrimination, but they also contain some promising new points of departurein the Court’s legal reasoning. First was B.S. v. Spain (24 July), concerning a sex worker of Nigerian origin who was harassed by the Spanish police. Then came M. and Others v. Italy and Bulgaria (31 July), about a Bulgarian Roma girl who alleged that she was trafficked to Italy and abused there by several men who held her hostage in a villa. Most recent is the case of Fedorchenko and Lozenko v. Ukraine (20 September), concerning a Roma man who complained that a police officer had set fire to his house. Five of the applicant’s family members died because of that fire.

In a two-post miniseries, Lourdes Peroni and I will discuss these three cases, which have to our knowledge not been picked up by other blogs. In the process we will revisit some of the major factors that continue to hamper the Court’s case law in the field of racial discrimination. In this post – the first half of the series – I will discuss M. and Others v. Italy and Bulgaria, which raises the question what racial discrimination is (or what counts as discrimination) in the eyes of the Court. Next week, Lourdes will discuss the Court’s standard of proof in cases that concern the investigation of racist violence. Continue reading

Announcing a Blog Tribute to Judge Tulkens

Next month, Judge Tulkens will be leaving the ECtHR after serving on it for fourteen years. She has been the Belgian judge since 1998, the year the new Court started working. As of 2011 she has been one of the Court’s two Vice-Presidents.

We at the Strasbourg Observers are based in Belgium – at Ghent University – and are excited to be able to seize this opportunity to highlight Judge Tulkens’ unique contribution to the Court. We work on a research project entitled “Strengthening the European Court of Human Rights: More Accountability through Better Legal Reasoning” and, to us, Judge Tulkens epitomizes what our research is all about. As a judge she has tirelessly devoted herself to safeguard and improve the standard of legal reasoning in the ECtHR.

To honor and commemorate Judge Tulkens’ work, we have invited a number of her friends in legal scholarship and practice to contribute a guest post that contemplates her invaluable role in developing the Court’s jurisprudence. Some guest bloggers will discuss one of her numerous and incisive separate opinions, others will debate a leading case in which she was among the majority. We will put all the posts online over the next month.

Also, we hereby issue an open invitation to join us in exploring and celebrating Judge Tulkens’ voice on the Court. This blogging tribute is not conceived of as a traditional liber amicorum; everybody is welcome to participate, either by sending in a guest post or by posting something in the ‘comments’ section. Publication of such guest posts will depend on editorial acceptance.

We hope that all our readers and of course Judge Tulkens herself will take pleasure in this engagement with her work. Her inimitable voice on the Court will be sorely missed.

The Strasbourg Observers

Gender equality and religious freedom in politics; Dutch SGP case declared inadmissible

The ECtHR has brought a turbulent Dutch legal saga to a close. In the highly interesting Staatkundig Gereformeerde Partij v. the Netherlands, the Court has declared the complaint by the Dutch political party ‘SGP’ inadmissible. The SGP is, in the words of the Court, “a confessional political party firmly rooted in historical Dutch Reformed Protestantism” (par. 4). The party does not allow women to stand for election, as it believes that God teaches that men and women have different roles in life. It believes that “man is the head of the woman” and “participation of women in both representative and administrative political organs” is “incompatible with woman’s calling” (par. 9). After a prolonged debate and legal struggle in the domestic courts, the Dutch Supreme Court ruled that, on the ground of Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’), the State is obliged to ensure that political parties allow women to exercise their right to stand for election. The SGP complained to the Strasbourg Court that this ruling of the Supreme Court infringed Articles 9 (right to freedom of religion), Article 10 (right to freedom of expression) and Article 11 (right to assembly) of the ECHR.

Frankly, what I expected to find was a terse decision, basically referring to the State’s margin of appreciation. I was wrong. The reasoning is brief, but includes three steps that combine to make this a memorable ruling. I will discuss these steps below. By the way, this case has provoked a lot of controversy in the Netherlands over the past years (most of it is in Dutch, but see this article in the Human Rights Quarterly). With this post, I cannot do justice to the whole debate; I just aim to give you my first impressions of the decision. Continue reading

Testimonial privilege for life-partners? The formalism of van der Heijden v Netherlands

When it comes to protecting family life, the Strasbourg Court is torn between realism and formalism. The recent Grand Chamber case of van der Heijden v Netherlands is a good example of this. The Court showed itself to be deeply divided over a question of testimonial privilege – meaning the right not to testify against one’s family member or partner. By 10 votes to 7 (and additionally 3 concurring judges expressing their hesitation), it held that the Dutch State cannot be criticized for limiting testimonial privilege to those who are related by blood and those who have formalized their relationship through marriage or registration.

At first glance this may well seem reasonable, but you might change your mind – as I did – when you hear the facts of this case. In a nutshell: Ms. van der Heijden was kept in detention for 13 days because she refused to comply with an order to testify against her life-partner, with whom she had been cohabiting for 18 years and with whom she has two children. In what follows, I will argue that it is regrettable that the Court departs from a flexible approach that puts people and not legal categories first. Continue reading

Gender Justice in Strasbourg

Today, in the judgment of Konstantin Markin v. Russia, the Grand Chamber has re-defined its jurisprudence on sex discrimination. Regular readers of this blog will know that the “Strasbourg Observers” have taken a close interest in this case (see earlier posts here and here).  The Human Rights Centre of Ghent University – of which we are a part – actually actively participated in arguing the case: we had submitted a third party intervention to the Court. Our brief is available here.

So I am thrilled to be able to report good news on this judgment. The issue in the case is whether military servicemen can be refused parental leave when such leave is available to servicewomen. With a vote of 16 to 1, the Court has held that such a difference in treatment on the ground of sex violates article 14 (the anti-discrimination provision) in conjunction with article 8 (right to private and family life). The judgment includes a thorough gender discrimination-analysis; I will do my best to highlight the most interesting parts. Continue reading

Stereotypes of Roma: Aksu v. Turkey in the Grand Chamber

 The Grand Chamber has handed down its much-awaited judgment in Aksu v. Turkey. This case concerns the use of derogatory stereotypical images of Roma in government-sponsored publications. The Grand Chamber holds with 16 votes to 1 that article 8 (right to private life) has not been violated. I have mixed feelings about the Court’s reasoning. When it comes to stereotypes, the judgment contains progressive and insightful reasoning. On the other hand, I regret that the Court did not take the substance of the applicant’s complaint – namely that he was discriminated as a Roma – seriously. In what follows I will chart the Court’s judgment and highlight both some strengths and some weaknesses. Continue reading

Anti-Gay Hate Speech: Vejdeland and Others v. Sweden

The Court has handed down a fascinating judgment on the freedom of expression. Vejdeland and others v. Sweden is the first time that the Court applies the principles relating to hate speech in the context of sexual orientation. A unanimous Court has ruled that Sweden did not violate the right to freedom of expression: the criminal conviction of the applicants for distributing leaflets that contained offensive statements about homosexuals did not breach the Convention. The judgment – which I will discuss below – is well worth reading, and so is the factsheet on hate speech that the Court has released on the occasion of this ruling. Continue reading

Toward an Anti-Stereotyping Approach for the ECtHR

As part of our joint research project I have written an article on gender stereotyping and the ways this could be addressed by the European Court of Human Rights in its case law.

Now I’m not sure whether flagging my own research is correct blog-etiquette, but I will take this opportunity to let you know that my article has just been published by the Human Rights Law Review and share the link with you. The full reference is Alexandra Timmer, ‘Toward an Anti-Stereotyping Approach for the European Court of Human Rights’, 11 Human Rights Law Review (2011), p. 707-738.

Here is a direct link to my article.

Comments are most welcome, either here on the blog or via email!

Here is the abstract:

The central tenet of this article is that stereotypes are both cause and manifestation of the structural disadvantage and discrimination of certain groups of people. Focusing on the gender case law of the European Court of Human Rights, this article explores what conception of equality the Court should embrace to adequately address the harmfulness of stereotypes. Since stereotypes are often the mechanisms that underlie discrimination, this article advances an anti-stereotyping approach that the Court could employ in its rulings. The proposed analysis consists of two phases: ‘naming’ and ‘contesting’ stereotypes. The whole argument is illustrated by Konstantin Markin v Russia and Rantsev v Cyprus and Russia, two recent cases in the area of gender equality.

S.H. and Others v Austria: margin of appreciation and IVF

In Austria, it is forbidden to use donated sperm or ova for in vitro fertilization (‘IVF’). Ovum donation is under all circumstances prohibited; sperm donation is only possible when the sperm is directly placed in the womb of a woman (in vivo artificial insemination). Two Austrian couples complained about this regulation; the first couple needs IVF treatment with use of donor sperm and the other couple needs IVF with use of a donor ovum to fulfill their wish for a child of which at least one of them is the genetic parent. In 2010, the First Section held in S.H. and Others v. Austria that the Austrian regulation violated Article 14 in conjunction with Article 8 of the Convention, with a vote of 6-1 regarding the first couple and 5-2 vote regarding the second couple. Stijn and I have both blogged about that Chamber judgment (see here and here).

The Grand Chamber reversed that judgment a few days ago. With a vote of 13 to 4, the Grand Chamber concludes that the restrictive Austrian assisted reproduction regulation is not contrary to the Convention. Quite frankly, I have difficulties writing this post. The case raises very complex issues, situated as it is within a highly contentious debate about the way the Court should adjudicate culturally or ethically sensitive issues. Recently, the Court has had to endure a barrage of critique for what is perceived as its usurpation of power from the Contracting States. The majority of the Grand Chamber goes to great lengths in this case to appease its critics and appear respectful of State sovereignty: ‘the Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating matters of artificial procreation’ (par 92). And: ‘The Court considers that concerns based on moral considerations or on social acceptability must be taken seriously in a sensitive domain like artificial procreation’ (par. 100). The stakes are high; a lot of pressure is put on the Court. In its third-party intervention, the Italian Government practically announces the apocalypse if ovum donation were allowed: ‘to call maternal filiation into question by splitting motherhood would lead to a weakening of the entire structure of society’ (par 73).

It is impossible to navigate this debate and discuss all the facets of the case satisfactorily in a blog post. I will limit my discussion to the Court’s use of the margin of appreciation- and consensus-arguments, and Austria’s reasons in support of its restrictive legislation as regards assisted reproduction. Continue reading

Bah v UK: on immigration, discrimination and worrisome reasoning

This post was co-authored by Lourdes Peroni and Alexandra Timmer

The Court recently ruled on the case of Ms. Bah, a Sierra Leonean woman with indefinite leave to remain in the UK, who asserted that she was discriminated against in the allocation of social housing. The Court’s reasoning in Bah v. UK gives ample food for thought. We find two aspects of the Court’s reasoning especially worrisome: the Court’s explicit references to the need of a ‘comparator’ and the Court’s use of the ‘immutability-criterion’.  Though these are familiar concepts within discrimination law, the Court has thankfully largely steered clear of them through the years. With this post we question the Court’s present recourse to these concepts. The comparator-approach and the immutability-criterion are potentially harmful and, moreover, we are of the opinion that the Court could have reached the same decision without relying so heavily on these concepts. Continue reading

Inter-American Commission praises ECtHR in a landmark decision on domestic violence

The Inter-American Commission on Human Rights released its keenly anticipated merits report in the case of Jessica Lenahan (Gonzales) v United States a few weeks ago.  This was the first time a domestic violence survivor filed an international legal claim against the U.S.[1] The case has been extensively commented on elsewhere (see for example this article in the Harvard Human Rights Journal and this post on IntLawGrrls), so my aim with this post is just to flag the decision and note the extensive references to the case law of the European Court of Human Rights therein.

The facts of the case are horrifying. Continue reading

Mainstreaming the Human Rights of Older Persons

After a long time of neglect, there is an increasing awareness and recognition of the human rights of older persons within the international human rights community. Several stakeholders have issued a call for a ‘UN Convention on the Rights of Older Persons’. In a recent article in the Human Rights Law Review, entitled ‘The Human Rights of Older Persons: A Growing Challenge’, Frédéric Mégret does an excellent job assessing these developments. Mégret shows that the rights of older persons should be approached through a human rights framework and that this is an issue which human rights lawyers cannot afford to ignore any longer.

So far, the European Court of Human Rights has not exactly produced a rich case law on the human rights of older persons. Perhaps this is not surprising, given that the European Convention and its Protocols are silent on the issue of rights for the elderly (in contrast to the European Social Charter (see article 23) and the Charter on Fundamental Rights of the European Union (article 21 and 25)). However, this might be changing. There is definitely potential in the Court’s legal analysis to mainstream the rights of older persons. This blog post focuses on that potential through the lens of two cases that were handed down in July: Heinisch v. Germany and Georgel and Georgeta Stoicescu v. Romania. Continue reading

Live from Strasbourg: the hearing of Konstantin Markin v. Russia

Together with Lourdes and Stijn, I’ve just attended the Grand Chamber hearing in the case of Konstantin Markin v. Russia. We’ve blogged about this case here and here. Just to refresh your memory: the case concerns a military serviceman, Konstantin Markin, who was divorced from his wife and who had custody of their three young children. He applied for three years parental leave, but his request was denied because only female military personnel are allowed parental leave of such duration. The issue in Strasbourg is whether this difference in treatment is allowed because sufficient justifications exist for it, or whether it violates article 14 of the Convention in conjunction with article 8 (the non-discrimination provision in combination with the right to private/family life).

Our research team has taken a keen interest in this case. We – in the form of the Human Rights Centre of Ghent University – have submitted a third party intervention to the Court in this case. Our submission focused on the issue of gender stereotyping and how that is addressed by other instruments of international law. We were expressly asked by the President of the Court not to address the facts or the merits of the case, so our comments had to be of a quite general nature.

Now some first impressions of the hearing. Continue reading

R.R. v. Poland: of reproductive health, abortion and degrading treatment

The Court has released an important judgment in the area of reproductive health, R.R. v. Poland.  It is also a very interesting judgment, as it raises a complex set of issues connected to different fields of law. Our team had a lively debate about this case yesterday. It became clear that there are various ways of looking at the Court’s reasoning: gender, health rights and freedom of religion are all perspectives that can be brought to bear on this case. With this post I would like to put my first thoughts on paper. The focus will be on the Court’s reasoning under Article 3 (prohibition of inhuman or degrading treatment).

Facts
The facts of R.R. v. Poland make for sad reading. Continue reading

Saying It Is Doing It (comments on the hearing in the case of Aksu v. Turkey)

The famous American feminist legal theorist Catherine MacKinnon argued that pornography is an act of subordination. In Only Words, she notes: “Social inequality is substantially created and enforced – that is, done – through words and images. . .  Elevation and denigration are all accomplished through meaningful symbols and communicative acts in which saying it is doing it.” (p. 13)

It is this sort of insight that was crucially lacking in the recent hearing before the Grand Chamber in the case of Aksu v. Turkey. The hearings are online. I’ve blogged about this case before; here and here. Briefly, the case concerns a State-sponsored dictionary and book that contain derogatory stereotypes of Roma. The dictionary contains entries that define “Gypsy” as “(metaphorically) stingy” and the book contains passages that portray Roma as thieves, beggars and prostitutes.

The reason why we should care about Aksu is because words and images are not neutral and harmless vessels of expression, they do something. As MacKinnon says, words and images create and enforce social inequality. As might be expected, the representative of the Turkish state denied this completely. He referred to the entries in the dictionary as “sterile quotations from the language and literatureContinue reading

Kiyutin v. Russia: landmark case concerning the human rights of people living with HIV

Recently, the Court came down with a judgment that strongly condemns the stigmatization of people living with HIV. Kiyutin v. Russia is, as far as I was able to ascertain, the first case in which the Court rules on the merits of a claim of discrimination on the ground of a person’s HIV-positive status. Straight away, the Court has chosen to become a leader in the battle against stigma and discrimination of people with HIV. Continue reading

Gypsy Way of Life “By Birth” or “By Choice”

This post is co-authored by Lourdes Peroni and Alexandra Timmer

In an inadmissibility decision that might have gone unnoticed by many, the Court has recently ruled in an interesting case, Horie v UK. The case involves a “New Age Traveler” who complained of an impediment on her ability to pursue a nomadic way of life. The case’s issue was a rather technical legal one – the question was whether a quia timet order which prevented a group of travelers to occupy any land by the Forestry Commission in the Dorset-region was justified – but en passant the Court makes some potentially important remarks about what sort of lifestyle deserves recognition. The purpose of this post is to flag this case and briefly discuss the disquieting remarks the Court makes about what kind of cultural minority-groups deserve protection and which groups don’t. Continue reading

2010: year of “profound moral views”?

2010 was a turbulent year for the European Court of Human Rights. The Court has been under fire both for usurping too much power and for achieving too little. The first type of critique is made by conservatives who recycle the old idea that an international court has no legitimacy to judge the situation on the ground in individual states; this year vocally proclaimed in for, for example, the Netherlands (in Dutch) and Russia. The second type of critique – that the Court is doing too little – refers primarily to the huge backlog in cases. The Court is not managing its workload; therefore we saw such initiatives as the Interlaken Conference.[1]  

 To my mind, the year was characterized by an intense debate about the legal relevance/importance of an individual society’s moral values.  The abortion case of A, B and C v. Ireland is the most recent of a series of high-profile cases, all delivered in 2010 and all essentially revolving around the question to what extent the Strasbourg Court should take national morality into account when determining whether human rights violations have taken place in a certain state.  Apart from the abortion case, I’m thinking here of cases concerning sexual orientation (Schalk and Kopf v. Austria and Alekseyev v. Russia) and sex discrimination (Konstantin Markin v. Russia). What follows is a brief review and a critique of A, B and C v. Ireland. Continue reading

The Court offers protection to those who have a disability and are in detention (Jasinskis v. Latvia & Raffray Taddei v. France)

In the most recent round of judgments, squeezed in just before the festive season, are two interesting cases concerning the detention of persons with a disability: Jasinskis v. Latvia and Raffray Taddei v. France. These two cases are exemplary of many others, in which people with a disability are held in detention in appalling conditions. However, the cases get a bitter twist because the national authorities try to lay the blame on the detainees themselves. The Strasbourg Court does a good job protecting the human rights of the applicants.

What happened
The facts that constitute these cases are widely different. The first case concerns Valdis Jasinskis, who was deaf and mute since birth. Continue reading

A Rose By Any Other Name?

Shakespeare suggested that the names of things do not matter, but only their substance. The applicants in Losonci Rose and Rose v. Switzerland disagree. So does the Court, and so do I.

The applicants in this case are a couple who wanted to retain their own names after marriage, rather than adopt a double-barreled surname for one of them. Complicating factor was that the man was Hungarian by birth. Their reasons for not wanting to change their names were the difficulties in changing names in Hungarian law and the fact that the second applicant, who held an important post in the federal administration, was well known under her maiden name. Continue reading

“The special social role of women”: the Strasbourg Court does not buy it (Konstantin Markin v. Russia)

Last week, the Court delivered what might well turn out to be a landmark judgment on the issue of sex discrimination; Konstantin Markin v. Russia. The facts seem simple enough: a military serviceman was not entitled to the same parental leave as a military servicewoman would have had in his case. A classic discrimination case. Yet, on reading the case, it is apparent that a lot is going on that is worth discussing and worth applauding. Here are my first thoughts. Continue reading

Child maintenance and gender stereotypes: understanding J.M. v. the UK

A recent case, J.M. v. the United Kingdom, startled our research team. The case concerns a British child support rule that is at first glance counter-intuitive. The rule, from the Child Support Act 1991, states that the parent who does not have the primary care of the children is required to pay child support. So far little news. However, the amount of this support is reduced when the absent parent enters into a new relationship. The rule made no distinction between married and unmarried couples, but took no account of same-sex relationships. In this post I will highlight why the Court’s ruling is problematic and, moreover, why the underlying rule is deeply disturbing. Continue reading

Just words? (Aksu v. Turkey Part II)

My post on Aksu v. Turkey received some criticism for not taking the freedom of expression into account. A brief memory-aid: Aksu is the case of a man of Roma origin who complained about degrading stereotypical remarks made about Roma in government-sponsored publications. In a “dictionary for pupils” and a book entitled “The Gypsies of Turkey” Roma were put down as “stingy”, “greedy”, “thieves” etc. (See my previous post).

News about the Court will pick up again – the Court will be releasing 21 judgments today – but because I find this such an interesting case I would like to take this opportunity to reflect further on Aksu, this time from a freedom of expression perspective.

The first thing that is remarkable from this perspective is that the Court decides to declare this application admissible. Continue reading

Delegitimizing tradition as a “legitimate aim”: inspiration for Strasbourg from California

Perry v. Schwarzenegger, the recent judgment overturning Prop 8, got me thinking about legitimate aims. I believe the European Court of Human Rights could gain valuable insights from that case.

Newspaper readers will be aware that, last week, a federal judge in California rejected the amendment to the California constitution (Proposition 8 ) which banned same sex marriage. What is most interesting from a European perspective is the Californian judge’s masterly and compelling reasoning.

The point I want to highlight today is the way the Californian judge meticulously sets out why certain aims (or in U.S. jargon ‘state interests’) cannot be accepted as legitimate. Specifially, why preserving tradition cannot, in itself, be a legitimate interest. Continue reading

The Power of Definition: Stereotypes of Roma in Aksu v. Turkey

The European Court of Human Rights just rendered a judgment on the issue of stereotyped images of Roma in government-funded publications in Turkey. I think the majority decision (4 to 3) lacks sustained analysis and requires problematization. 

In the case of Aksu v. Turkey the applicant, mr Aksu, is of Roma origin. He complained about two publications (a book and a dictionary) that included harmful images of Roma, like the suggestion that Roma are stingy, fraudulent and aggressive. In his view, he had been discriminated against on account of his ethnic identity and he felt that these publications harmed his dignity. The Court treats his complaint under art. 14 in conjunction with art. 8. I will discuss the two publications and the Court’s treatment of them separately, as well as the dissenting opinion. Continue reading

Strasbourg Court shows itself sensitive to the plight of Afghan women

The status of Afghan women has been high up on the agenda of the international human rights community in the past few years. Today the European Court of Human Rights joined the chorus of the concerned. The Court rendered a judgment that recognizes the extremely problematic status of women’s rights in Afghanistan and will hopefully provide firm support to Afghan women seeking asylum from gender persecution.

In N. v. Sweden, the applicant is a forty year old Afghan woman who applied for asylum in Sweden in 2004. She entered Sweden with her husband, but a year later, in 2005, she notified the authorities that she had separated from her husband and that she wanted a divorce. She alleged that she would face a serious risk of ill-treatment, contrary to art. 3 of the Convention, if she were to be returned to Afghanistan, essentially because she had transgressed established gender norms by seeking a divorce from her husband and living with a Swedish man. She claimed that she had no social network left in Afghanistan and no male support, which she needed in order to survive there. The Court finds that the general information regarding women’s rights in Afghanistan is not enough on its own, to find a violation of the Convention if the applicant were returned, but that the applicant’s personal situation is such that “the applicant faces various cumulative risks of reprisals which fall under Article 3 of the Convention from her husband X, his family, her own family and from the Afghan society.” (par. 62)

This judgment is striking because of its extensive documentation of the human rights abuses women face in Afghanistan. Continue reading

Same-sex marriage case should go to the Grand Chamber: more on Schalk and Kopf v. Austria

Gay rights are one of the human rights issues of our time. The Strasbourg Court came out with an important but ultimately disappointing ruling on same-sex marriage last week (for a summary of the case, see Lourdes’ post). It is disappointing both for the reasoning and for the outcome (see below). Despite the fact that a case like this had clearly been coming for a long time, the Chamber’s ruling is sloppy and leaves much to be desired. Add this to the fact that the judges were divided by 4 to 3 on the issue whether Austrian law was discriminatory and I think this case is ripe for the Grand Chamber.

The judgment is not all bad. The Court takes an important step in recognizing that same-sex relationships can fall under the category of “family life” (art. 8). One might interpret this ruling as a “hidden but hopeful” message that same-sex marriage laws will someday – when a sufficiently strong European consensus exists on this issue – be legally required by the Court.

Still, I am more somber regarding the instrumental value of this judgment (as it stands) in the struggle for gay equality; I think that the signal that the majority sends is too weak to provide much support for the gay movement. My main concern is the lack of a finding of discrimination. Continue reading

A Strasbourg victory for the mentally disabled

The Strasbourg Court (Second Section) came out with a landmark judgment yesterday; Kiss v. Hungary. The applicant, Mr. Kiss, suffers from manic depression. Due to this condition he was placed under partial guardianship in 2005. In 2006, with the elections coming up, he realized that the Hungarian law forbade him to vote, as all persons put under (partial or complete) guardianship were disenfranchised. The Court holds that article 3 of Protocol 1 (right to free elections) is violated.

Kiss v. Hungary is a great case for a few reasons. To begin, this is the first time the Court refers to the recent United Nations Convention on the Rights of Persons with Disabilities (“the Disability Convention”). Thus the door is opened for further and more intensive use of this recent Convention. This will undoubtedly gladden all the proponents of a disability-sensitive case law.

But the part the Court’s reasoning that excites me the most is where they explicitly condemn the stereotyping indulged in by the Hungarian legislators. To my knowledge – and I readily admit I haven’t done thorough research on this topic yet – this is the first case where the Court explicitly employs an anti-stereotyping approach in a disability-context. Even though scholars, like Michael Perlin, have maintained for years that stereotypes pollute all aspects of disability law. Continue reading

Tănase v. Moldova: multiple readings of a case concerning multiple nationality

To be honest, our team’s first reaction when discussing the recent Grand Chamber judgment in the case of Tănase v. Moldova was rather dismissive.  We had the feeling that the Court was teaching Moldova the basics of what it means to be a democracy; a thing they would hardly do in a case concerning, say, Belgium, France or the Netherlands.

The case concerns Moldovan Law no. 273, which prohibits people with multiple nationalities sitting as Member of Parliament. This law was introduced a year before the general elections and was the third aspect of an electoral reform package, whose other measures consisted of raising the electoral threshold and banning electoral blocks. As the Court notes, “All the measures proposed had a detrimental impact on the opposition” (par. 168). This makes that the Court is not satisfied that the aim of the law was to secure loyalty of MP’s, as Moldova maintained (par. 170).

The Court puts it politely, but it is quite clear what the judges think of such exclusionary practices as adopted by the governing party. Continue reading

Missed Chance at Condemning Paternalism: S.H. and others v. Austria, Part Two

In a previous entry, Stijn commented on the case of S.H. and others v. Austria (see ‘How the outcome can be good, but the reasoning sloppy’). I agree with him on both counts; the outcome in S.H. is to be applauded, but the Court’s reasoning lacks bite.

At issue was the Austrian Artificial Procreation Act prohibiting the use of ova from donors and sperm from donors for in vitro fertilization. The Court found that there was no reasonable and objective justification for the difference in treatment between the applicants and couples which may make use of artificial procreation techniques without resorting to ova donation or couples which lawfully may make use of sperm donation for in vivo fertilization.

The Austrian Government argued that “ova donation might lead to problematic developments such as exploitation and humiliation of women, in particular of those from an economically disadvantaged background” (par. 49). The Court’s reply to this argument is, rightly, that potential future abuse is not a sufficient reason for prohibiting a specific procreation technique as a whole if it is possible to devise safeguards against such abuse (par. 77).

But what the Court fails to do is to condemn the Government’s argument. Why does this risk of exploitation and humiliation only pertain to women? Why can men not be exploited and humiliated when donating their sperm? The truth is that there is an invidious stereotype at work here that formed the underlying reason for the Austrian legislation. The stereotype is that women’s sexuality is something vulnerable, something holy that needs to be protected, while men’s sexuality is something active – if not aggressive. That is paternalism, not biology.

The Convention, the Church and Child Abuse

The torrent of recent accusations of child abuse my members of the Catholic Church has included the Netherlands. In the past weeks, the Dutch newspapers have been full of horrendous stories of sexual abuse of children by priests. Now, a newspaper reports that lawyers from a foundation that supports the rights of victims of sexual abuse have said that the State can be held responsible for these acts under the European Convention of Human Rights.

They might just be right. The lawyers refer to the case of E. and Others v. the UK of 2002. That case concerned four children who were sexually and physically abused by their step-father during the ’60s, ’70s and ’80s. The Court found that the social sevices had failed to “discover the exact extent of the problem and, potentially, to prevent further abuse taking place.” (par. 97). Therefore, the Court judged that a violation of article 3 (freedom from torture or inhuman or degrading treatment) had taken place.

These facts seem to fit the case of the abuse by members of the church well. Both cases concern abuse perpetrated some time ago; both cases concern negligence by the State to investigate what was going on. However, the Court did not give a clear ruling on the issue of time limits in E. v.UK.

Do the victims from the ’50s, ’60s and ’70s have a chance in Strasbourg? I think so.

Alexandra Timmer