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