Between a Rock and a Hard Place: The Court’s Difficult Choice in Khamtokhu and Aksenchik v. Russia

Is it permissible for States to categorically exempt women, juveniles and the elderly from being sentenced to life in prison? How should the Court handle the threat that States will ‘level down’ protection after it finds that a given measure is discriminatory? Those were the questions facing the Court’s Grand Chamber as it reached its judgment in Khamtokhu and Aksenchik v. Russia, issued on January 24th. The case concerned the alleged discrimination inherent in the fact that life imprisonment in the respondent State can only be imposed on men between the ages of 18 and 65. The Grand Chamber was divided, and ultimately found no violation of the Convention in the case. When reading the judgment and separate opinions, it emerges that the Court failed to find that gender discrimination had taken place for a very specific reason: doing so would have brought about the (re-)introduction of life imprisonment for the excepted groups. Continue reading

The Unbreakable Vow: Marital Captivity in Strasbourg

By Corina Heri, Visiting Scholar at Ghent University           

It has been the ECtHR’s constant case-law that Article 12 ECHR, while enshrining the right to marry an opposite-sex spouse, does not protect a right to divorce. The fact that the Court has resolutely held on to that idea despite the modern-day legalization of divorce in the Council of Europe Member States has been brought to the fore once again with the Fourth Section’s judgment in Babiarz v. Poland, issued on 10 January 2017. That case, brought under Articles 8 and 12 ECHR, concerned the applicant’s inability to obtain a divorce from his wife without her consent, as a result of which he could not marry the mother of his child. In short, Polish law gave higher priority to the legal fiction of an ongoing relationship between the spouses than to the de facto relationship between the applicant and his new partner, which had been ongoing for 11 years at the time of the Court’s judgment. The majority, in its judgment, found no violation of the ECHR. The present post will summarize the salient arguments made by the two dissenters, Judge Sajó and Judge Pinto de Albuquerque, and add some critiques of its own.

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A Casualty of Formalism: The Application of the Six-Month Rule in Kamenica and Others v. Serbia

By Corina Heri, PhD candidate at the University of Zürich / Visiting Scholar at Ghent University

On 27 October 2016, the Court published the Third Section’s decision in Kamenica and Others v. Serbia. That case concerns the alleged ill-treatment of 67 persons who fled Bosnia and Herzegovina during the conflict that broke out there in 1992 and who were subsequently interned in a Serbian detention camp. The Third Section applied the six-month rule to the case, finding that it had been brought out of time. Its decision raises questions about the strictness of the six-month rule and the application of a statute of limitations to grievous alleged violations of Article 3 ECHR. Granted, the application of a rigid time limit for bringing applications to Strasbourg fosters certainty and ensures that the proceedings before the Court take place within a useful time frame. However, decisions such as this one indicate that, in certain types of cases – here, a particularly grievous one that stood to be investigated in a post-conflict scenario – the Court’s emphasis of a strict time limit can seem decidedly formalistic.

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Blog seminar on positive obligations (4): The Responsiveness of a Positive State – Vulnerability and Positive Obligations under the ECHR

By Corina Heri, PhD candidate at the University of Zürich / Visiting Scholar at Ghent University

The concept of vulnerability has had wide-ranging effects for the Strasbourg jurisprudence, although the European Court of Human Rights, in what appears to be a matter of conscious choice,[1] has never defined it. Instead, the Court has opted for a flexible and reactive application of the concept in a broad array of cases under various Convention articles. This approach, which has been employed by the Court in deciding hundreds of cases to date, has recently benefitted from much-needed scholarly attention.[2] It has also enjoyed further exploration in the context of Laurens Lavrysen’s recently-published Ph.D. thesis on Human Rights in a Positive State. Against the backdrop provided by these findings, the following will seek to shed some additional light on the Court’s approach to vulnerability-based positive obligations. Continue reading

Silence as Acquiescence: On the Need to Address Disability Stereotyping in Kocherov and Sergeyeva v. Russia

By Corina Heri, PhD candidate at the University of Zürich / Visiting Scholar at Ghent University

In Kocherov and Sergeyeva v. Russia, a Chamber judgment issued on 29 March 2016, the ECtHR held that the restriction of a mentally disabled father’s parental authority had violated his rights under Article 8 ECHR (the right to respect for private and family life). In the past, the ECtHR has found violations of Article 8 ECHR where the domestic authorities failed to provide sufficient reasons for measures withdrawing parental care or contact rights from disabled parents (compare Olsson v. Sweden (No. 1), Kutzner v. Germany, and Saviny v. Ukraine). One of the most interesting aspects of the Kocherov and Sergeyeva case, however, concerns another provision, namely the prohibition of discrimination in Article 14 ECHR. The complaint made in this regard concerned the fact that Mr. Kocherov was considered an unfit parent based on stereotyped assumptions about parents with mental disabilities, contrary to the evidence about his actual ability to care for a child. The fact that the majority did not find it necessary to examine this complaint represents a missed opportunity to confront stereotyping head-on.

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The Problem with Insularity: On the Court’s View of Anti-Abortion Campaigning in Annen v. Germany

By Corina Heri

On 26 November 2015, the ECtHR published the Fifth Section’s judgment in Annen v. Germany. The majority in that case found a violation of the applicant’s freedom of expression under Article 10 ECHR by an injunction that prohibited him from distributing anti-abortion leaflets outside a day clinic and from publishing the names and address of two doctors on his website. The following will argue that the female perspective was entirely missing from the majority’s judgment, in three main regards.

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The Court’s Approach in Y. v. Slovenia, Annotated

By Corina Heri

This guest post was written by Corina Heri, Ph.D. researcher at the University of Zürich, Switzerland, and visiting researcher at the Human Rights Centre, Ghent University.

On the 28th of May, the Fifth Section of the Strasbourg Court issued its judgment in Y. v. Slovenia. The judgment in the Y. case ties in to some of the criticism recently formulated by Yaiza Janssens on this blog concerning the I.P. v. the Republic of Moldova case. While noting the novelty of the Court’s approach under Article 8 in Y., the present contribution will point out some remaining room for improvement in the Court’s approach to sexual violence-related cases.

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