Remembering Paula Marckx

Earlier this week, we received the sad news that Paula Marckx passed away at the age of 94. Having lived a remarkable life as, amongst others, a journalist, model, pilot and entrepreneur, she will be remembered, first and foremost, for the case that bears her name in Strasbourg. Her death, little over a year after the 40th anniversary of the Marckx v. Belgium judgment, offers an occasion to delve into the history of the case and to reflect on the significance of Paula Marckx’s struggle for equal rights for her daughter Alexandra and the implications thereof for the development of European human rights law. Continue reading

Advisory Opinion No. 2: a Slightly Bigger Rodent

Little over a year ago, I wrote a blog post discussing the Advisory Opinion No. 1 issued under Protocol No. 16, with the title “The mountain gave birth to a mouse”. Last week, the Grand Chamber of the European Court of Human Rights give birth to Advisory Opinion No. 2concerning the use of the ‘blanket reference’ or ‘legislation by reference’ technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the offence and the amended criminal law”, requested by the Armenian Constitutional Court. After a brief examination, my preliminary conclusion is that, this time, we’re dealing with a slightly bigger rodent – perhaps a rabbit but certainly not a capybara. In this contribution, I will discuss the new Advisory Opinion, focusing in particular on what further lessons can be drawn from it. The key takeaway from this blog post, compared to its predecessor, is that it provides a somewhat more meaningful contribution to the development of the case law. However, the messages given by the Court, regarding the kinds of questions it wants to respond to, are unlikely to spark a lot of enthusiasm among domestic courts to make use of the Advisory Opinion mechanism, potentially thwarting Protocol No. 16’s objective of encouraging judicial dialogue. Continue reading

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

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

New journal: ECHR Law Review

It doesn’t happen every day that a new journal is launched in the area of human rights law, let alone one that focuses exclusively on European Convention law. Looking forward to reading the new ECHR Law Review, edited by regular Strasbourg Observers blogger Kanstantsin Dzehtsiarou and by Vassilis Tzevelekos.

More info on the aim of the journal and how to submit an article below.

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Strand Lobben and Others v. Norway: from Age of Subsidiarity to Age of Redundancy?

In the recent judgment of Strand Lobben and Others v. Norway, the Grand Chamber found a violation of Article 8 ECHR (the right to respect for family life) on account of shortcomings in the decision-making process leading to the adoption of a boy who had been placed in foster care. The Grand Chamber in particular took issue with the fact that this decision had been taken without up-to-date expert evidence on the mother’s capacity to provide proper care and on her son’s vulnerability. As the case has already been discussed by Marit Skivenes on this blog, this post will only focus on a particular aspect of the case: the side-stepping of the important substantive issues in favour of a purely procedural review of the case, despite strong mobilization by third party interveners around the former. This certainly fits within the broader trend seen in the case law where there is an increasing reliance on procedural review, often associated with the idea of Strasbourg having entered the “Age of Subsidiarity”, a term coined by Judge Spano. It is argued that, by micromanaging domestic processes rather than providing guidance on substantive issues, at a moment in time in which no useful decision can still be made for the families affected, the Court risks making itself redundant in addressing human rights concerns in the area of child protection. Continue reading

Zhdanov and others v. Russia: on missed opportunities and an offensive applicant

On 16 July, the Court delivered its judgment in the case of Zhdanov and others v. Russia. The case concerns the refusal by the Russian authorities to register two LGBT rights organisations because they were considered extremist organisations on account of the allegedly immoral character of their activities. In this judgment, the Court found a violation of Article 6 § 1 (access to court) and of Article 11 (freedom of assembly), alone and in conjunction with Article 14 (prohibition of discrimination). This blog post is only concerned with the Article 11 and 14 aspects of the case. After setting out the facts, I will highlight some of the missed opportunities in the Court’s judgment from the perspective of the third party intervention we, as the Human Rights Centre of Ghent University, submitted in this case (in particular as far as the assessment of the legitimate aim of the interference is concerned). In addition, I will discuss a quite peculiar aspect of the case: the decision to declare the part of the complaint lodged by LGBT activist Nikolay Alekseyev inadmissible as an abuse of the right of application because of offensive statements he made about the Court and its judges on social media. In line with the (partly) dissenting judges, I will argue that this is problematic from the viewpoint of both freedom of expression and access to the Court. Continue reading

The mountain gave birth to a mouse: the first Advisory Opinion under Protocol No. 16

On 10 April, the Grand Chamber of the European Court of Human Right adopted its first Advisory Opinion under the new Protocol No. 16 to the ECHR, which entered into force on 1 August last year. This Protocol, which has so far been ratified by twelve States, allows the “highest domestic courts” to request the European Court to give an Advisory Opinion on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”. The objective of the Protocol is to “further enhance the interaction between the Court and national authorities and thereby reinforce implementation of the Convention, in accordance with the principle of subsidiarity.”

In this blog post, I will briefly discuss the content of this Advisory Opinion “concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother”, before turning to the question as to what lessons can more broadly be drawn from it regarding the kinds of policy choices the Court has to make when applying the Protocol 16 mechanism. Continue reading

Murtazaliyeva v. Russia: on the examination of witnesses and the “corrosive expansion” of the overall fairness test

On 18 December, the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Murtazaliyeva v. Russia, finding no violation of the right to a fair trial in a case concerning the conviction of a Chechen woman for terrorist offences.  The most significant aspect of the judgment concerns the applicant’s complaint that the domestic courts’ refusal to call two defence witnesses violated Article 6 § 1 and § 3 (d) of the Convention.[1] As the Strasbourg case law was underdeveloped in this area, this case provided an important opportunity for the Court to clarify Convention standards.  Unfortunately, in doing so, the Grand Chamber yet again expanded the scope of the “overall fairness of the proceedings” test under Article 6 § 1, which now also serves as the final benchmark in this area. In this blog post, it will be argued that the increasing recourse by the Court to this test risks depriving defendants of meaningful procedural protection. Continue reading

New publication on the history of the ECHR in Belgium

I’m happy to announce the publication of my article “‘Strasbourg was something new, it was an adventure’ – A history of the Belgian cases before the European Court of Human Rights in the 1960s, 1970s and 1980s” in the December edition of the Legal History Review. This article is the product of a research project, funded by the Research Foundation Flanders (FWO), I undertook on the history of the European Convention on Human Rights in Belgium. It is to a large extent based on oral history accounts of actors involved in Strasbourg litigation during the period under consideration. This is the abstract:

In recent years, a burgeoning literature has focused on the history of human rights in general and the history of the European Convention on Human Rights (ECHR) in particular. In order to understand how the ECHR gradually managed to gain authority in diverse national settings, it is necessary to complement transnational historical perspectives with studies of national reception histories. The present article approaches the history of the ECHR in Belgium by focusing on the history of the Belgian cases in Strasbourg, which have played an important role in contributing to the ‘discovery’ of the ECHR in the Belgian legal system. On the basis of interviews with actors involved in the early cases against Belgium, it was possible to determine their position in the Belgian legal landscape as well as their motivations and aspirations in going to Strasbourg. Moreover, these interviews allowed gaining insight into the circumstances out of which litigation against Belgium arose.

 

Human Rights Centre submits a third party intervention in “Conchita Wurst case”

The Human Rights Centre of Ghent University[1] has recently submitted a third party intervention in the case of Minasyan and Others v. Armenia, which raises important issues concerning the protection of LGBTIQ+ persons against hate speech. In our third party intervention, we invite the Court to clarify Convention standards regarding the positive obligation for the State to combat hate speech based on sexual orientation, gender identity and gender expression. Before summarizing the main arguments developed in our third party intervention, I will first provide a brief overview of the facts of the case. Continue reading

On sledgehammers and nutcrackers: recent developments in the Court’s less restrictive means doctrine

By Laurens Lavrysen, postdoctoral researcher at the Human Rights Centre of Ghent University (Belgium)

A number of years ago, Eva Brems and I wrote an article “‘Don’t Use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights”. Using a sledgehammer to crack a nut is a quintessential example of a disproportionate action given the fact that an obvious less restrictive means (LRM) to do so is available in the form of a nutcracker. Similarly, the European Court of Human Rights has occasionally resorted to some kind of LRM analysis to determine the proportionality of a human rights restriction.

In our article, we mapped the Court’s LRM case law up to 2013. At that time, something was moving in this area. In 2012, in the judgments of Mouvement Raëlien Suisse v. Switzerland and Nada v. Switzerland, the Grand Chamber had endorsed in general terms some version of the LRM test. Continue reading

Seminar “Positive obligations under the ECHR and the Criminal Law: towards a Coercive Human Rights Law?”

Dear readers,

Together with Dr. Natasa Mavronicola (University of Birmingham), I’m co-organizing an expert seminar on “Positive obligations under the ECHR and the Criminal Law: towards a Coercive Human Rights Law?”, which will take place in Ghent on 25 May 2018.

The European Court of Human Rights increasingly requires States to protect ECHR rights by recourse to the criminal law. On the one hand, States now have to criminalize certain human rights violations, such as human trafficking, torture and rape. On the other hand, States may be under an obligation to prosecute offenders and to impose criminal sanctions. The seminar provides an excellent opportunity for an in-depth discussion on the important legal questions raised by this evolution, which go to the heart of the purpose and function of human rights law.

You can find the programme of the seminar here. The seminar is a closed event for a limited number of participants. If you have a strong research interest in the topic, you can ask the organisers to attend the seminar (laurens.lavrysen@ugent.be and n.mavronicola@bham.ac.uk).

Medical negligence after Lopes de Sousa Fernandes: a blank check to the Member States with respect to the substance of the right to life?

In the Lopes de Sousa Fernandes v. Portugal judgment of 19 December, the Grand Chamber made an attempt to clarify the Court’s case law in the area of medical negligence. Traditionally, the Court has examined cases of death resulting from alleged medical negligence almost exclusively from the viewpoint of the procedural obligations under Article 2. Those obligations require the State to set up an effective judicial system to determine the cause of death and to hold those responsible accountable (e.g. Calvelli and Ciglio v. Italy). In recent years, the Court seemed more and more willing to also examine such cases from the viewpoint of the substantive obligations under this provision. Particularly in the Chamber judgment in the Lopes de Sousa Fernandes case, the Court interpreted these substantive obligations in an expansive manner, which arguably would have turned the Court into “a first- and last-instance medical malpractice court” (joint dissenting opinion of Judges Sajó and Tsotsoria). The Grand Chamber, however, didn’t feel like opening the floodgates and decided to overturn the Chamber judgment, severely limiting the scope of the State’s substantive obligations in this area. Continue reading

Bayev and Others v. Russia: on Judge Dedov’s outrageously homophobic dissent

Earlier this week, we published a blog post by Pieter Cannoot and Claire Poppelwell-Scevak on the judgment of Bayev and Others v. Russia in which the Court held that Russia’s so-called gay propaganda law violated the European Convention. In this blog post, I will not further dwell upon the outcome of the case or the reasoning by the majority. However, it is necessary to highlight and protest against the dissenting opinion by Judge Dedov. In his dissent, the Russian judge has crossed a line by making outrageously homophobic statements that are unworthy of a judge at the European Court of Human Rights. Continue reading

Blog seminar on positive obligations (3): Positive obligations to protect fundamental rights – any role to be played by the European Court of Justice?

By Malu Beijer, researcher Radboud University Nijmegen

The concept of positive obligations has become a regular feature of the case law of the European Court of Human Rights (ECtHR) ever since the classic cases of Marckx v. Belgium, Airey v. Ireland and X. and Y. v. the Netherlands. The ECtHR has made very clear in this case law that the full and effective protection of fundamental rights requires states to take active measures. States cannot simply remain passive by complying only with their negative obligations.

In other systems of international human rights law and under national law, a similar concept of positive obligations can often be recognised. The same does not hold true for the protection of fundamental rights under EU law. The EU’s (relatively) more recent system of fundamental rights protection so far mainly has had a focus on negative obligations. Can it be established by the European Court of Justice (ECJ) that the EU institutions and the member states must fulfil positive obligations as well? In this post I will briefly explain some of my thoughts on this specific question which formed the topic of my PhD research. Continue reading

Blog seminar on positive obligations (2): positive obligations under unqualified rights

Guest post written by Dr. Vladislava Stoyanova, Lecturer and Postdoctoral Fellow, Faculty of Law, Lund University

Author of Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in Europe (Cambridge University Press, 2017). Currently working on a postdoctoral project entitled ‘Positive Obligations under the ECHR’

I certainly agree with Dr. Laurens Lavrysen’s assessment that the concept of positive obligations has remained undertheorized in the existing literature and in this respect, his book constitutes an invaluable contribution aimed at filling the gap. There is much in Lavrysen’s Human Rights in a Positive State for human rights scholars, lawyers, students and both national and international judges to engage with and enjoy. The book offers an impressive review of recent judgments and demonstrates an excellent analytical rigor in its efforts to extract relevant principles and structure these in a clearer analytical framework. In this contribution, I would like rather focus on two issues: the analytical distinction between qualified and unqualified rights and, as related to the above, the proximity requirement, namely the proximity between State conduct and the harm sustained by the individual. Continue reading

Blog seminar on positive obligations (1): Publication PhD “Human Rights in a Positive State”

I am proud to announce the publication of my PhD “Human Rights in a Positive State – Rethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights”. In my PhD, I have exhaustively studied the concept of positive obligations in the case law of the European Court of Human Rights, on the basis of a corpus of 2618 cases in which the Court used the notion of positive obligations, identified through the Court’s HUDOC database. During my PhD research, I was particularly interested in how the Court distinguishes between the respective concepts of positive and negative obligations and how the choice to examine a case from the one or the other perspective influences the Court’s legal reasoning. Continue reading

Human Rights Centre submits third party intervention in case concerning LGBT rights activism

The Human Rights Centre of Ghent University[1] has submitted a third party intervention in the cases of Nikolay Alekseyev and Movement for Marriage Equality v. Russia and Nikolay Alekseyev and Others v. Russia. The case concerns the refusal by the Russian authorities to register two LGBT rights organisations because they were considered extremist organisations on account of the allegedly immoral character of their activities. The full text of the third party intervention can be found here, the main arguments are summarized hereunder.

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Aldeguer Tomás v. Spain: a missed opportunity for the Court to provide guidance concerning the legal recognition of same-sex relationships

Last year, the Court issued the judgment of Oliari and Others v. Italy, described on this blog as “a stepping stone towards full legal recognition of same-sex relationships in Europe.”  In this judgment the Court recognized that Article 8 ECHR encompasses a positive obligation on States to put in place a legal framework providing for the legal recognition and protection of same-sex relationships. The Court in particular emphasised that such legal framework must at least provide for the “core rights relevant to a couple in a stable and committed relationship” – as opposed to supposedly “supplementary” rights, such as for example the question whether such legal framework should allow same-sex couples to marry, a question which the Court in its Schalk and Kopf judgment considered to fall within the State’s margin of appreciation. The Court however failed to provide any guidance on what should be understood under those enigmatic “core rights”.

In the recent case of Aldeguer Tomás v. Spain, the Court however fails to build upon the Oliari judgment in order to provide more guidance in the area of the legal recognition of same-sex relationships. The case concerns the inability of the surviving partner of a same-sex relationship to receive a survivor’s pension. Continue reading

Strasbourg Court fails to acknowledge discrimination and stigmatization of persons living in poverty

In the recent case of Garib v. the Netherlands, the Court considered that a policy imposing minimum income conditions on persons wishing to settle in a number of inner-city areas of the city of Rotterdam did not violate the freedom to choose one’s residence as guaranteed by Article 2 Protocol No. 4. In doing so, the Court over-relies on the margin of appreciation doctrine and fails to acknowledge the discriminatory and stigmatizing effects of such policy faced by persons living in poverty. Continue reading

Don’t open the floodgates: fines and Article 1 Protocol 1

In the recent case of Konstantin Stefanov, the Strasbourg Court examined the acceptability of a fine (the equivalent of EUR 260) imposed on a lawyer, appointed ex officio by a domestic court, for declining to represent a defendant from the viewpoint of Article 1 Protocol 1. The Court did not find a violation of this provision, taking into account the wide margin of appreciation allowed to the State in order to guarantee the smooth functioning of the justice system, the fact that a remedy to challenge the fine had been available to the applicant and because the Court considered the amount of the fine “neither prohibitive, nor oppressive or otherwise disproportionate”. This blog post is not concerned with the outcome of the case, but rather with the remarkable fact of the Court considering it self-evident that the imposition of a fine interferes with the right to peaceful enjoyment of one’s possessions.

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New publication: Poverty and the ECHR

I’m happy to announce the publication of my article “Strengthening the Protection of Human Rights of Persons Living in Poverty under the ECHR” in the September edition of Netherlands Quarterly of Human Rights. In my article, which could hardly be any more topical than in today’s austerity-struck Europe, I address questions such as: what is the European Court of Human Rights’ record in protecting the human rights of persons living in poverty? What are the limitations of its current approach? What kind of legal approaches could assist the Court in better grasping the nature of poverty as capability deprivation? And how could this, ultimately, result in a stronger protection of the human rights of persons living in poverty?

This is the abstract:

In recent years, the European Court of Human Rights has developed a significant jurisprudence which illustrates the added value of the European Convention on Human Rights (ECHR) in the field of poverty. Building on the findings of Amartya Sen’s “capability approach”, the article examines the extent to which the Court has grasped the nature of poverty as “capability deprivation”. It is argued that, due to polycentric concerns and a reluctance to overcome the negative / positive obligations and civil and political / social and economic rights dichotomies, the Court has only, to a limited extent, done so. Subsequently, three approaches are examined that could allow it to better take into account the findings of the “capability approach” and that could allow for enhanced protection of the human rights of persons living in poverty under the ECHR: endorsing a more complex perspective on the responsibility of the state; analysing poverty as a failure to provide substantive equality; and recognising the vulnerability of persons living in poverty.

Dubská and Krejzová v. Czech Republic: a ‘negative’ or ‘positive’ right to give birth at home?

By Laurens Lavrysen

In the case of Dubská and Krejzová v. Czech Republic, the Strasbourg Court had to pronounce itself on the regulation of home birth under Czech law. While on the one hand Czech law allowed for home births, on the other hand it prohibited midwives from assisting them. In its judgment of 11 December, the Court found no violation of the right to respect for private life (Article 8), mainly based on the increased risks to the lives and health of newborn and mother vis-à-vis a hospital birth in case of complications. The Court thereby endorsed the paradoxical Czech legal framework under which relatively safe home births with the assistance of a midwife are prohibited on health grounds, whereas unsafe home births without such assistance are allowed. It is argued that by constructing the case as one involving a narrow conception of ‘interference’, the Court failed to look at the broader picture of what it means to effectively secure a human right. Such a more holistic understanding requires an appreciation of both ‘negative’ and ‘positive’ aspects of Article 8 at stake in the present case.

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New publication: Less Restrictive Means & the Strasbourg Court

First of all, a Happy New Year to you all, dear readers! As far as we are concerned, 2015 couldn’t have started better. We’re proud to announce the publication of the article “‘Don’t use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights”, written by prof. Eva Brems and I. The article is concerned with the emerging practice by the European Court of Human Rights to use more and more explicit lines of legal reasoning placing the examination of less restrictive means at the centre of its proportionality analysis. What is the theory behind this concept? How does it work in practice? Is there really a less restrictive means revolution going on in Strasbourg? For the answer to all these questions and more, you can access the article on the website of Human Rights Law Review.

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Belgium violated the ECHR by extraditing a terrorist to the USA despite an interim measure by the Strasbourg Court: Trabelsi v. Belgium

The Trabelsi case is noteworthy for two reasons. Firstly, because of the blatant disregard by Belgium of the interim measure issued by the European Court of Human Rights. Secondly, because of the application of the reasoning from Vinter v. UK – in which the Court found that life without parole is incompatible with Article 3 ECHR – to the context of extradition proceedings. The Court finds that the applicant’s extradition by Belgium to the USA, where he ran the risk of being convicted to life without parole and despite an interim measure to the contrary, was in violation of Articles 3 and 34 ECHR. This blog post will first highlight the latter violation, before questioning the Court’s reasoning with respect to the former one.

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Education in prison: right to education only protects access in case of ‘existing’ educational facilities (Velyo Velev v. Bulgaria)

In Velyo Velev v. Bulgaria, the Court found a violation of the right to education (Article 2 Protocol 1) in a case concerning the refusal to allow a prisoner to enrol in a secondary school operating inside the prison. While the judgment should be hailed for explicitly affirming that remand prisoners also enjoy the right to education, it is unfortunate that the Court continues to construct the scope of Article 2 Protocol 1 in a very narrow fashion. As a result the Court fails to provide genuine substance to the right to education in a prison context. Continue reading

Strasbourg Court fails to adequately protect trade union freedom: secondary strike action only considered to be an ‘accessory’ aspect of Article 11 (R.M.T. v. UK)

According to the Strasbourg Court’s established case law, the right to strike action is protected by Article 11 ECHR (e.g. Enerji Yapi-Yol Sen v. Turkey), which more generally protects the right of trade unions to strive for the protection of their members’ interests (e.g. Demir and Baykara v. Turkey). In the recent case of R.M.T. v. UK, the Court for the first time had to rule on a case concerning so-called secondary strike action, i.e. a strike organized by trade union members in one company in support of a strike initiated in another company. The United Kingdom is one of the few Council of Europe member states – together with Austria, Luxembourg and the Netherlands – in which a total prohibition on secondary strike action is in place. In its judgment of 8 April, the Court nonetheless did not consider such a blanket ban to be contrary to Article 11.

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Shitting in ‘closed’ overall not ‘degrading’ according to Strasbourg Court

If you look up the word ‘degrading’ in the dictionary, chances are that you find a picture there of a person who cannot help shitting him- or herself. In the case of Lindström and Mässeli v. Finland, the Strasbourg Court however did not consider that state authorities necessarily inflict ‘degrading treatment’ when they are responsible for bringing a prisoner in such a situation. The case concerns prisoners who were put in ‘closed’ overalls they were unable to remove, which resulted in them shitting themselves because the prison guards did not bring them in time to a toilet. According to the Court, this did not amount to a violation of Article 3 ECHR. The Court did find a violation of Article 8, but as will be argued below, since the protection offered by this provision is lower, it cannot be a genuine alternative for the applicability of Article 3.

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New publication: Shaping Rights in the ECHR

We are happy to announce the publication of the book “Shaping Rights in the ECHR – The Role of the European Court of Human Rights in Determining the Scope of Human Rights”, edited by Eva Brems and Janneke Gerards, and published by Cambridge University Press. The book consists of a collection of papers presented at a seminar our research team co-organized together with Prof. Gerards (Nijmegen University) in March 2012 in Ghent.

This is the abstract:

“In fundamental rights adjudication, a court first has to determine whether the interest at stake falls within the scope of the fundamental right invoked. Whether or not an individual interest falls within the scope or ambit of one of the fundamental rights protected by the European Convention on Human Rights determines whether or not the European Court of Human Rights can decide on the merits of a case. This volume brings together a variety of legal scholars in order to examine the scope of fundamental rights. Topics range from the nature of human rights and the real or imagined risk of rights inflation to theories of positive obligations and social and economic rights. It contains contributions of a theoretical nature as well as analytical overviews of the ECtHR’s approach. In addition, comparisons are made with domestic, EU and international law.”

 

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Failure to protect minor against stepfather filming her naked violates Article 8: Grand Chamber agrees with our third party intervention in Söderman v. Sweden

On 12 November, the Grand Chamber issued its judgment in the case of Söderman v. Sweden (formerly known as E.S. v. Sweden), finding that Sweden had failed to comply with its positive obligation to protect the applicant’s right to respect for private life (Article 8 ECHR). According to the Grand Chamber, neither a criminal remedy nor a civil remedy existed under Swedish law that could have enabled the applicant to obtain effective protection against the violation of her personal integrity.

The case concerns a fourteen year old girl who discovered that her stepfather had attempted to secretly film her naked – he had hidden a video camera in the laundry basket in the bathroom, directed towards the spot where she normally undressed. The stepfather was not convicted because under Swedish law this act did not qualify as sexual molestation or attempted child pornography, nor was there a general prohibition in Swedish law against filming an individual without his or her consent.

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Transforming the right to property

Reading Strasbourg case-law on a systematic basis, I always feel uncomfortable when I see the Court’s expansive protection in the field of Article 1 Protocol 1. Basically, that is because I don’t really like the idea of a human right to property for a number of reasons. Firstly, a right to property takes the present distribution of wealth across society for granted, and requires justification for redistributive state action. Thereby it does not question the mechanisms that distribute wealth among individuals, despite the fact that it is clear that maldistribution can both cause or result from human rights violations. By protecting the status quo, the right to property can undermine the transformative potential of human rights.  Secondly, and related, those who have the most property obviously have a larger claim to property protection, disproportionately empowering the most advantaged vis-à-vis the least advantaged. Thirdly, upholding the right to property itself can amount to violations of human rights. Slavery is of course the most shocking example, but also think of how intellectual property rights restrict access to medicines affecting the right to health, or how the right to property can be mobilized to restrict access to fora for social action, affecting the freedom of expression. Fourthly, the right to property does not by itself distinguish between the kinds of property it protects, thereby principally placing the poor man’s means of subsistence on the same footing as the millionaire’s yacht. While it is clear how the former relates to foundational principles of human rights such as human dignity, in the latter case the link seems non-existent. Why should human rights at all care about the millionaire’s yacht?

Should we then do away with the human right to property? Perhaps that’s stretching my fundamental unease with the right to property too far. Surely no one would want to go back to the days of communist Europe. The question thus remains how the right to property can be transformed in such a way as to relate better to what we as human rights lawyers care about. The recent judgment in the case of N.K.M v. Hungary (see Ingrid’s blog post here)  and R.Sz. v. Hungary may indicate the way forward.

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The Court could provide more guidance in prisoner cases

When systematically reading the Court’s case-law, it becomes clear that poor conditions of detention remain one of the most dramatic human rights problems in contemporary Europe. The last decade, the Court has done a good job in interpreting Article 3 ECHR as to include a right for prisoners to be held in decent detention conditions. However this does not mean that there is no room for improvement. As I will illustrate by way of two recent cases, the Court could do a better job in developing clearer standards under Article 3 in its prisoners case-law. The way forward could be to adopt a rule-based rather than a threshold approach to these kind of cases.

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Söderman v. Sweden: third party intervention of our Human Rights Centre

We were in Strasbourg yesterday to attend the Grand Chamber hearing in the case of Söderman v. Sweden. In this case, formerly known as E.S. v. Sweden, the Human Rights Centre of Ghent University  has submitted a third party intervention. We expect the Grand Chamber judgment to become the leading case on positive obligations under Article 8 ECHR. At the hearing, we were excited to hear the lawyers of both the applicant and the Swedish state referring to our third party intervention in their  oral submissions (for a podcast of the hearing, see here).

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Procedural Justice in Human Rights Adjudication: The European Court of Human Rights

In the context of the project “Strengthening the European Court of Human Rights: More Accountability through Better Legal Reasoning”, Eva Brems and I have written an article in which we explore the relevance of the socio-psychological concept of ‘Procedural Justice’ for the European Court of Human Rights. I am proud to announce that this article has just been published in the February edition of Human Rights Quarterly. The full reference of the article is Eva Brems and Laurens Lavrysen, “Procedural Justice in Human Rights Adjudication: The European Court of Human Rights”, 35 Human Rights Quarterly (2013), 176-200, and you can access the article here.

To give you a glimpse of the article, here is the abstract:

The social psychological theory of procedural justice emphasizes the fundamental importance of procedural fairness judgments in shaping citizens’ satisfaction and compliance with the outcome of a legal process and in strengthening the legitimacy of legal institutions. This article explores the benefit of applying procedural justice criteria (participation, neutrality, respect, and trust) in human rights adjudication, with a particular focus on the European Court of Human Rights (ECtHR). It is argued that the ECtHR should take these criteria into account both at the level of its own proceedings and in evaluating how human rights have been dealt with at the domestic level.

Is the Strasbourg Court tough on migration?

One of the reasons why critics continue to attack the Strasbourg Court is its alleged judicial activism in the field of migration.  The recent case of Shala v. Switzerland  illustrates that the criticism on the Court is at best exaggerated and at worst simply a straw man. In this case, the Court all too easily accepts the expulsion of a settled migrant, on the basis of some light criminal convictions. This blog post highlights some of the judgment’s flaws, in particular how it is hard to reconcile with Grand Chamber case-law, and how the judgment fails to do justice to the real experience of the families concerned.

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No Access to Court: on Prison Leave, Social Reintegration and Legal Formalism

In the recent judgment of Boulois v. Luxembourg, the Grand Chamber denied a prisoner his right of access to court (Art. 6, § 1 ECHR) in a case concerning the refusal to grant him prison leave. The Grand Chamber’s reasoning is tainted by legal formalism and fails to do justice to the importance of social reintegration prospects for prisoners.

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Less stringent measures and migration detention: overruling Saadi v. UK?

The recent cases of Yoh-Ekale Mwanje v. Belgium and Popov v. France illustrate how a ‘less stringent measures test’ is entering the Court’s reasoning under Art. 5 § 1 ECHR in migration detention cases. The Court appears to be slowly moving away from its deferential approach in Saadi v. The United Kingdom. This might result in the overruling of Saadi by the Grand Chamber in the near future.

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Strasbourg Court condemns Belgian internment policy

On 6 December 2011, the European Court of Human Rights found the Belgian internment policy to be in breach of the ECHR. The case of De Donder and De Clippel v. Belgium concerned Tom De Clippel, a mentally ill person who had committed suicide while interned in an ordinary prison. Under Belgian law, internment (“internering” / “internement”) is a “safety measure” to protect society against a dangerous mentally ill individual who was committed a serious offence, but who is not considered to be criminally liable due to his or her mental illness.

According to the Court, the authorities should have been aware that there was a real risk that Tom De Clippel, as a paranoid schizophrenic, might attempt to commit suicide while detained in an ordinary prison environment. The Court found a substantive violation of Art. 2 ECHR (the right to life) on the ground that Tom De Clippel should never have been held in the ordinary section of a prison. Continue reading

French Roma policy violates European Social Charter

In a decision of 28 June (COHRE v. France, no. 63/2010), which was only recently made public, the European Committee of Social Rights has found the French zero tolerance policy towards East European Roma living in illegal camps to be in violation of the European Social Charter. The case, which was lodged by the NGO Centre on Housing Rights and Evictions (COHRE), concerns the eviction and expulsion measures announced by French president Sarkozy in the summer of 2010. Hundreds of illegal camps were dismantled and thousands of Roma were expelled to Romania and Bulgaria. Most expulsions took place on a “voluntary” basis, in exchange for the payment of 300 euro per adult and 100 euro per child. Continue reading