The saga continues … Legal standing for NGOs when de facto representing mentally disabled dying in institutions

By Helena De Vylder

Once again, in the decision in Bulgarian Helsinki Committee v Bulgaria, the ECtHR had the opportunity to rule on the legal standing of an NGO when de facto representing two mentally disabled adolescents, who died in an institution. The ECtHR applied the criteria it established in Centre for Legal Resources on behalf of Vincent Campeanu v Romania and confirmed in Helsinki Committee on behalf of Ionel Garcea v Romania. The Court found that the applicant organisation in Bulgarian Helsinki Committee does not meet the requirement that it must formally be involved in the domestic proceedings having all the rights parties in criminal proceedings enjoy. Unfortunately, the Court does not attach more importance to the ultimate goal of granting legal standing to de facto representatives. In Campeanu, it held that this was in order to prevent allegations of a serious nature from being examined at the international level, with the risk that the respondent state might escape accountability under the Convention.

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(In)justice and admissibility: No standing for their representative, but effective protection for disappeared victims?

By Helena De Vylder

In the inadmissibility decision delivered on 26 April 2016 in the case of N. v. Russia and M. v. Russia, the Court rejects the petition for lack of standing of the applicants’ representative. The victims were unable to formally appoint their representative by signing a ‘power of attorney-document’, since they disappeared, allegedly as the result of a forced extradition to Uzbekistan. The Court considered that their representative could not lodge applications to the Court in their name, in the absence of a duly signed power of attorney to represent them, not just in the domestic proceedings, but also before the ECtHR. According to the Court, the vulnerable applicants did not risk being deprived of effective protection, since it was open to their immediate family to complain. The fact that the direct family members all reside in Uzbekistan, and were formerly questioned by the authorities there, were not considered to prevent the family members from applying. It will consequently never be examined whether the applicants’ abduction and transfer to their home state of Uzbekistan violate the prohibition of torture (article 3 ECHR).

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Blog post series: legal research methodologies to deal with case law from Strasbourg (and beyond)

This post was written by Valeska David, Helena De Vylder and Eline Kindt, doctoral researchers at the Human Rights Centre of Ghent University and members of the inter-university Human Rights Integration project.

We are used to discuss and analyse the Strasbourg Court’s case law. We share our thoughts and findings in blogposts, papers and even PhDs and books. But how often do we share our methodologies? We are happy to announce a blogpost series on this precise question because, indeed, methodology is one of the biggest hurdles to overcome for legal scholars in general and for PhD researchers in particular.

A few months ago the Ghent University team of the Human Rights Integration project organised a PhD Seminar on methodological approaches towards case law research. The aim was to help PhD students working on case law to reflect on their methodology design and strengthen the methodological underpinnings of their research. As experience is an important source of knowledge, seven senior PhD researchers and fresh doctors in law illustrated which hurdles they struggled with and how they developed their methodology in order to overcome these problems. The initiative was most welcomed by students and academics and it became clear that this topic is a ‘universally’ challenging one for legal researchers. We then decided to encourage the sharing of methodological experiences once again, and bring some of the debates and insights from the Seminar here, to Strasbourg Observers.

In the course of the following weeks, this Blog will publish five posts written by some of the speakers at the above-mentioned seminar concerning their experience with case law research. The first one to be online is from Dorothea Staes, PhD researcher at the Université de Saint-Louis in Brussels and member of the Human Rights Integration Project. She will approach the issue of how to do research on the Strasbourg case law from the perspective of judicial behaviour, taking on board insights from extra-legal disciplines. The second post you will read is written by Laura Van den Eynde, doctoral researcher at the Université Libre de Bruxelles and affiliated to the same project. In her post, she will explore how to define and select landmark cases.

Next, Dr. Stijn Smet, Dr. Lourdes Peroni (both postdoctoral research fellows at the Human Rights Centre of Ghent University) and Dr. Saïla Ouald Chaib, who recently obtained her PhD at Ghent University, will discuss other methodological issues.

We hope this post series will be as helpful to you as the seminar was to us! Readers who would also like to share their experiences on legal research are, of course, warmly invited to do so in the comment section.

Helsinki Committee of Armenia v Armenia: when the subsidiarity-requirement and the exhaustion of domestic remedies do not go hand in hand

By Helena De Vylder

The ECtHR’s recent Helsinki Committee of Armenia v Armenia judgment deals with the refusal of local authorities to grant permission for the holding of a mourning march. However, the letter refusing the march was only received by the applicant organisation after the proposed date for the event. Since no domestic remedies could give the applicant the opportunity to overturn the decision prior to the proposed date, the ECtHR held that domestic remedies could not effectively remedy the situation and did not need to be exhausted. This blog post explores what form of redress would be considered effective, under the circumstances, and exposes the tension with the subsidiarity principle.

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