Blog Symposium ‘Strasbourg Observers turns ten” (4) Wedging the Door? The Paposhvili Opening Three Years Later

Lourdes Peroni, Lecturer in Human Rights, Sheffield Hallam University, UK

I am thrilled to be part of this Blog Symposium to celebrate the 10th anniversary of the Strasbourg Observers with some reflections on the memorable Grand Chamber judgment in Paposhvili v. Belgium. In December 2016, amidst a growing number of dissenting voices pushing for change within the Court, Paposhvili came to soften the restrictive application of the high Article 3 threshold that had prevailed in cases concerning the expulsion of seriously ill migrants. The pre-Paposhvili approach meant that, in practice, Article 3 protection was offered to this group of applicants only in very exceptional cases, namely in cases in which applicants were close to death at the time of expulsion.

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Age and Gender Discrimination: Laudable Anti-Stereotyping Reasoning in Carvalho Pinto v. Portugal

Those interested in stereotyping and intersectional discrimination might not want to miss the Court’s judgment in Carvalho Pinto de Sousa Morais v. Portugal. The compensation awarded domestically to a 50-year-old woman who could not have sexual relations after a failed operation was reduced, partly, because of age and gender stereotypes. After rejecting the use of gender stereotypes of women as primary child-carers in Konstantin Markin v. Russia, the Court now condemns the use of stereotypes about female sexuality in domestic judicial reasoning. In this post, I briefly discuss two points the judgment made me think about: the need for comparison in discrimination cases and implicit stereotyping.

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Talpis v. Italy: Elements to Show An Article 14 Violation in Domestic Violence Cases

What are the elements necessary to support a finding of discrimination in domestic violence cases? In the recent case of Talpis v. Italy, two judges voted against an Article 14 violation. The dissenting opinions offer an opportunity to reflect on this and other broader questions that may be relevant for future cases. The questions flow from disagreement in the judgment over: whether the domestic authorities involved in the individual case were discriminatory towards the applicant as a woman and whether there were sufficient indications of failures to protect women in the Italian system.

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Paposhvili v. Belgium: Memorable Grand Chamber Judgment Reshapes Article 3 Case Law on Expulsion of Seriously Ill Persons

In what is possibly one of the most important judgments of 2016, Paposhvili v. Belgium, the Grand Chamber has memorably reshaped its Article 3 case law on the expulsion of seriously ill migrants. In a unanimous judgment, the Court leaves behind the restrictive application of the high Article 3 threshold set in N. v. the United Kingdom and pushes for a more rigorous assessment of the risk of ill-treatment in these cases. For us at the Human Rights Centre of Ghent University, it was a thrill to intervene as a third party in such an important case. In our third party intervention we submitted that Paposhvili offered a unique opportunity to depart from the excessively restrictive approach adopted in N. We are delighted that the Grand Chamber has seized the opportunity to re-draw the standards in this area of its case law in a way that does fuller justice to the spirit of Article 3.

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Clothes on Trial: M.G.C. and the Need to Combat Rape Stereotypes

Those who think stereotypical beliefs about rape are a thing of the past will probably be surprised to read the domestic reasoning in cases that have recently reached Strasbourg. Allusions to women’s “immoral” behavior in I.P. v. the Republic of Moldova and insinuations that women should have resisted “by scratching or biting” in Y. v. Slovenia show that these beliefs continue to pervade domestic justice (see here and here). M.G.C. v. Romania is the latest example of the tenacity of harmful stereotypes in domestic assessments of rape complaints. The domestic courts found that the applicant – eleven years old at the time – had “provoked” the alleged perpetrators to have sex with her largely because she was “scantily dressed.”

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The Winners: Poll on Best and Worst ECtHR Judgment of 2015

The results of our poll on best and worst ECtHR judgment of 2015 are in! We are excited to announce the results now that exactly a month has passed since the opening of the polls.

In the category of best judgment, celebrating the best the ECtHR had to offer in 2015, the top three are:

Bouyid v. Belgium: 29%

Oliari and Others v. Italy: 27%

Khlaifia and Others v. Italy: 20%

In the category of worst judgment, indicating that there is always room for improvement, the top three are:

Ebrahimian v. France: 26%

Pentikäinen v. Finland: 23%

A.S. v. Switzerland: 18%

Thanks for voting. We already look forward to next year’s edition of the poll!

Grand Chamber Hearing in Paposhvili v. Belgium: The End of N. v. the UK?

Few judgments have sparked more criticism than N. v. the United Kingdom. The high Article 3 threshold set in the case of a seriously ill woman expelled to Uganda where she died shortly after her return has been criticized both inside and outside the Court. Following what some considered a missed opportunity in S.J. v. Belgium last March,[1] the Grand Chamber now has a renewed chance to revisit the N. approach in Paposhvili v. Belgium. In a third-party intervention in the case, the Human Rights Center at Ghent University invited the Grand Chamber to reconsider the unduly restrictive approach adopted in N. In this post, I highlight the main points we made in our intervention as well as some of the parties’ Article 3 oral arguments during last week’s hearing.

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Selecting Analytical Frameworks Across Disciplinary Boundaries

Lourdes Peroni

In sharing my experience with methodological issues during my Ph.D., I would like to focus on the aspects I considered essential when selecting the frameworks that informed my case law analysis. In what follows, I outline the main criteria I used to select some of these frameworks and then zoom in on the process I followed in making further selections from within one of my frameworks: critical discourse analysis.

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Bias and Violence in Identoba and Karaahmed: The Difference Some Differences Make?

By Lourdes Peroni 

What role do discriminatory insults play when the Court considers a certain instance of ill treatment in the light of Article 3? The answer seems to depend on which case one looks at. The role is that of “an aggravating factor,” if one looks at the recent judgment in Identoba and Others v. Georgia.[1] However, if one looks at another relatively recent judgment in a case involving similar issues, Karaahmed v. Bulgaria, the answer seems “none.” Continue reading

New Publication on Migration and Human Rights: The Strasbourg and San Jose Courts

I am happy to share with the readers the recent publication of my chapter “On the Road to Substantive Equality: Due Process and Non-discrimination at San José,” written for the book When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint, by Marie-Bénédicte Dembour (Oxford University Press 2015). Continue reading

Karaahmed v. Bulgaria: The (In)Visible Racial and Religious Motivation of Violence

By Lourdes Peroni

Karaahmed v. Bulgaria, a case recently decided at Strasbourg, concerned incidents arising from a demonstration by followers of “Ataka,” a political party known for its views against Islam and its adherents. The place of the demonstration: in front of the Banya Bashi Mosque in Sofia. The time: during Friday prayers. The manner: carrying flags featuring slogans such as “Let’s get Bulgaria back;” shouting insults at the worshippers such as “Turkish stooges”, “filthy terrorists,” “scum” and “Your feet stink! That is why you wash them!;” pelting them with eggs and stones; cutting a Turkish fez with a pocket knife while saying “Can you hear me? We shall now show you what will happen to each one of you!” and setting fire to prayer rugs.

The Court declared the Article 3 complaint, either alone or in conjunction with Article 14, inadmissible but found a violation of Article 9. In this post, I offer some preliminary thoughts on the inability of the Article 9 analysis to make visible what the events were really about at their heart.

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Impoverished “Family Life”: Its Problematic Pervasiveness at Strasbourg

By Lourdes Peroni

At a time when family life takes increasingly diverse forms in Europe and elsewhere, the recent judgment in Senchishak v. Finland clings to the ideal of parents and minor children as the yardstick to determine the existence of family life at Strasbourg. The Court declared the complaint under Article 8 inadmissible, after finding that an elderly mother seeking to reunite with her adult daughter failed to prove that she was dependent on the latter. Senchishak reaffirms a problematic line of jurisprudence, which restricts the notion of family life to the “core” family, namely parents and minor children. This restrictive understanding of family life is especially pervasive in family reunion and expulsion cases. The Court’s approach in these cases does not only seem out of place in growingly diverse societies. This approach impoverishes the notion of family life[1] with unequal implications for those whose family life does not match the parent/minor children standard. Continue reading

Jeunesse v. the Netherlands: Quiet Shifts in Migration and Family Life Jurisprudence?

By Lourdes Peroni

Readers familiar with the Court’s case law on family life and immigration will know that applicants’ chances of success are slim if family life was formed at a time when those involved knew that the migration status of one of them was such that their family life would be precarious in the Contracting state. Where this is the case, the principle is that the expulsion of the non-national family member will amount to an Article 8 violation “only in exceptional circumstances” (Rodrigues da Silva and Hoogkamer v. the Netherlands, para. 39 and Nunez v. Norway, para. 70). The Court has been reluctant to find a violation where there are no “insurmountable obstacles” to enjoying family life elsewhere (Arvelo Aponte v. the Netherlands, para. 60 and Useinov v. the Netherlands, p. 9).

In the recent case of Jeunesse v. the Netherlands the Court’s Grand Chamber did find a violation of Article 8 despite the applicant’s awareness of her precarious residence status before starting her family life in the Netherlands and despite the absence of insurmountable obstacles for the family to settle in the applicant’s country of origin. So what was exceptional about the circumstances in Jeunesse? And what to make of the Court’s analysis of these exceptional circumstances? Might this analysis signal any shift or refinement in the Court’s approach to some issues in its immigration and family life jurisprudence? Continue reading

Seminar Announcement: Law’s Imagining of Religion

The Strasbourg Observers are back from a summer break with an exciting announcement: the Human Rights Centre of Ghent University organizes a seminar entitled “Law’s Imagining of Religion: A Debate across Disciplines.” The seminar will bring together religion and legal scholars from Canada, Europe and the United States, including Winnifred Fallers Sullivan, Cecile Laborde, Helge Arsheim, Malcolm Evans, Lori G. Beaman, Susanna Mancini, Solange Lefebvre, Mark Hill, Meadhbh McIvor and Lourdes Peroni.

WHEN: 23 September 2014

WHERE: Ghent University’s Faculty of Law, Voldersstraat 3, 9000 Ghent

WHAT: Speakers will address questions such as: Are the notions of religion underpinning the law inclusive enough to attend to today’s diversity of religious ways? If not, can and should these notions be legally “stretched” so as to become more responsive to such diversity? The morning sessions will focus on how law, including human rights law, understands and should understand religion. The afternoon sessions will focus on the ways in which the European Court of Human Rights conceives of and should conceive of religion. Scholars presenting in the afternoon will unpack the notions of religion underlying high-profile freedom of religion judgments (including S.A.S. Lautsi, Eweida and Bayatyan) and examine the extent to which these notions attend and should attend to applicants’ religious experiences.

A limited number of places are still available. Attendance is free, but registration is required. If you would like to attend this seminar please send an email to Lourdes Peroni at hrcevent@ugent.be.

This is the program:

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Vulnerability and Economic Abuse in Domestic Violence Reasoning: T.M. and C.M. v. Moldova

T.M. and C.M. v. Moldova is one of the latest instances of domestic authorities’ passivity in protecting women against domestic violence. At the root of this passivity was a failure to understand the seriousness and extent of the problem and its discriminatory effect on women. This was reflected in misconceptions about both the nature of domestic violence and the reality of many of its victims. In dealing with this failure, the Court issues a strong judgment: (i) it reinvigorates the definition of domestic violence by renewing attention to non-physical forms, notably economic abuse and (ii) it refines the links between domestic violence victims’ vulnerability and the content of State positive obligations. Continue reading

Family Reunification in Berisha v. Switzerland: The Child’s Best Interests, Really?

This week, in a divided ruling, the Court rejected the case of Berisha v. Switzerland. By four votes to three, the Court held that the refusal of residence permits to the applicants’ three children – who were born in Kosovo and entered Switzerland illegally – did not violate the parents’ right to respect for family life. In this post, I discuss the Court’s analysis of the best interests of the children involved in the case and show how the analysis fails to live up to this principle.

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Forthcoming Publication on Vulnerable Groups in the Court’s Case Law

This post was written by Alexandra Timmer and Lourdes Peroni

Alexandra and I are happy to announce the forthcoming publication of our joint Article “Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law.” The piece will be published in the International Journal of Constitutional Law – I•CON.

In this Article, we critically examine the development and consequences of the concept of “vulnerable groups” in the Strasbourg case law. Our analysis includes a number of high-profile cases, from M.S.S. v. Belgium and Greece, to V.C. v. Slovakia, Alajos Kiss v. Hungary, Kiyutin v. Russia and the recent case of Horváth and Kiss v. Hungary.

The Article was an excellent opportunity to reflect and work together on issues of common interest, such as non-discrimination, equality and vulnerability.

Here 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.

“Very Weighty Reasons” for Religion: Vojnity v. Hungary

It looks like freedom-of-religion season has arrived in Strasbourg. After leaving aside the “freedom to resign” doctrine in Eweida, the Court has just made another move towards greater recognition of the importance of freedom of religion. In Vojnity v. Hungary, the Court clearly recognizes religion as a “suspect” ground of differentiation. As a result – and just like distinctions based on race, sex and sexual orientation – states must give “very weighty reasons” if they wish to justify differences based on religion. In less than a month, the Court has thus put freedom of religion and non-discrimination on the basis of religion on firmer grounds in Strasbourg.

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Eweida and Others v. the United Kingdom (Part I): Taking Freedom of Religion More Seriously

Eweida and Others v. the United Kingdom is probably one of the most awaited freedom of religion judgments of recent times. Twelve third parties intervened in the case. The judgment in fact covers four big cases brought by Christian applicants, complaining that they had suffered religious discrimination at work. This week and next week, the Strasbourg Observers will give the judgment the attention it deserves. In this post, I will stick to the general Article 9 principles of the judgment and to their application to the cases of Ms. Eweida and Ms. Chaplin. Next week, we will focus on McFarlane and Ladele.

The Court’s Article 9 reasoning is praiseworthy for several reasons. First, the Court offers a clear analysis of what counts as “manifestation of religion or belief.” Then, the Court refuses to quickly dismiss the freedom of religion complaints at the interference stage, leaving behind the freedom to resign doctrine. Moreover, in Eweida and Chaplin, the Court shows a strong concern for what is at stake for applicants manifesting their religion at work in the balancing stage. In essence, all this shows that the Court takes freedom of religion more seriously.

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Redfearn v. the United Kingdom: Protection against Dismissals on Account of Political Belief or Affiliation

Last month, the Court decided a case that may end up in the Grand Chamber: Redfearn v. the United Kingdom. The case concerns the dismissal of an employee on account of his political affiliation with the British National Party (“the BNP”). At the relevant time, the BNP “only extended membership to white nationals” (paragraph 9). The Court was sharply divided (4-3 with Judge Bratza among the dissenters). Though the main issue before the Court was narrow – whether the applicant should have had the opportunity to challenge his dismissal on grounds of political belief or affiliation – the case indirectly confronts the Court with more difficult and substantive questions, including whether the applicant’s political view/affiliation (racist) should be entitled to claim protection. Moreover, the case raises issues as to how far the Court can go in imposing positive obligations on States to offer protection against dismissals on account of political belief and affiliation.

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Racial Discrimination in Strasbourg (Part II): Intersectionality and Context

In this post, I would like to discuss two recent cases dealing with the investigation of racial/sexual violence, as both of them offer promising legal reasoning on the topic. The first case, B.S. v. Spain, represents a key step in the recognition of intersectional discrimination. The other, Fedorchenko and Lozenko v. Ukraine, puts strong emphasis on contexts of widespread discrimination (as evidenced by international reports) in determining whether states have complied with their duty to investigate if violence was racially motivated.

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Violence Against Roma: Unmasking Racist Motives

One case I want to flag among the recent judgments of the Court is Koky and Others v. Slovakia. The case concerns an attack with possible racial overtones at a Roma settlement. In this post, I highlight a couple of interesting aspects of the Court’s reasoning under Article 3 but puzzle over the exclusion of Article 14 analysis.

Facts

The attack was perpetrated on 28 February 2002 at around 9:45 p.m. by a group of at least twelve private individuals. Some of them were wearing balaclavas and armed with baseball bats and iron bars. The assault resulted in bodily harms and property damages. The applicants claimed that the violent event was racially motivated. Continue reading

Roma Evictions Stopped in Strasbourg: Yordanova e.a. v. Bulgaria

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

The recent case of Yordanova and others v. Bulgaria concerns a pressing human rights issue: the mass eviction of Roma from their houses. The Court shows itself a strong defender of socially disadvantaged groups who risk eviction from land that they have lived on for a long time. We will highlight just a few aspects of the Court’s judgment, namely the Court’s outstanding proportionality analysis and the issue of racial tensions.

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U.S. Supreme Court and ECtHR: Conflicts between Religious Autonomy and Other Fundamental Rights

Cases involving conflicts between religious autonomy and other rights such as non-discrimination and respect for private life seem to be gaining more and more prominence in different parts of the world. One recent example is the U.S. Supreme Court’s landmark ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al. The case concerned an employment discrimination suit filed by a teacher challenging her church’s decision to fire her. For the first time, the U.S. Supreme Court deals with what is known as the “ministerial exception.” The exception, the Court holds, “ensures that the authority to select and control who will be minister to the faithful – a matter ‘strictly ecclesiastical,’ – is the church’s alone.”

Although the European Court may be a “comparative newcomer,” cases involving similar issues have been on the way up in Strasbourg.[1] Over the last few years, the Court has decided in several cases against Germany: Obst, Schüth, Siebenhaar and, most recently, Baudler, Reuter and Müller. In these cases, applicants with a variety of roles (including, organist, teacher and ministers) within different churches have complained about violations of their right to respect for private and family life, freedom of religion, and access to courts.

How has the U.S. Supreme Court approached the controversy in Hosanna-Tabor? And, in which ways has the European Court of Human Rights dealt with similar issues? In this post, I briefly look at these questions.

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Court condemns forced sterilization of Roma woman

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

The Court has recently ruled in V.C. v. Slovakia, a case brought by a Roma woman who complained that she was sterilized without her informed consent. The judgment is no doubt a landmark decision with crucial implications for women belonging to minority ethnic groups. In this post, we argue the Court’s reasoning is spot on in several respects and outline the reasons why.  

Outline of the judgment

The applicant’s forced sterilization was in violation of Article 3 (prohibition of inhuman and degrading treatment) and Article 8 (respect for private and family life). The Court condemns the Slovakian government in strong terms. Continue reading

When is Family Life Family Life? A Look at Deportation Cases

In A.A. v. the United Kingdom, a recent case involving the deportation of a young Nigerian man, the Court faced, once again, the question whether relationships between adult children and parents/siblings amount to family life in deportation cases. The Court’s Fourth Section did not give a clear answer to this question. The 24-year-old applicant resided with his mother and did not have children of his own.

In this post, I take a quick look at the Fourth Section’s reasoning on this issue and try to situate it in the wider context of the Court’s deportation case law. One word of caution:  this is an attempt to briefly look at one specific question the Court asks to decide whether the deportation has interfered with an applicant’s right to respect for her family life. Do the ties invoked by the applicant constitute family life within the meaning of Article 8 § 1? To be more specific, do relationships between adult children and parents/siblings amount to family life in deportation cases?   Continue reading

Jehovah’s Witnesses and Freedom of Religion in France

Last week, the European Court ruled against France in a case concerning a tax demand claimed from the Jehovah’s Witnesses. The amount: over 57.5 million Euros. In Association Les Témoins de Jéhovah c. France, the Court focuses on the impact of the taxation on the association’s main source of funding – and on its subsequent ability to assure its members the free exercise of religion – as well as on the lack of precision of the law under which the association was taxed. In the background of the case, there are however various elements worth keeping in mind if one wants to get a fuller sense of the case and the issues ultimately at stake.   Continue reading

Lautsi v. Italy: Possible Implications for Minority Religious Symbols

What are the implications of the recent landmark judgment in Lautsi for minority religious symbols in state school classrooms? At first sight, the Court seems to adopt a more open approach towards the presence of religious symbols in the school environment. On closer examination, however, this may not necessarily be the case. This post briefly speculates on the Court’s answers in two post-Lautsi imaginary scenarios: What would happen in a case filed by a state school teacher wearing a headscarf against a Member State that bans it? What might be the Court’s response to a parent’s complaint against a Member State that allows teachers to wear the headscarf in state schools? Continue reading

M.S.S. v. Belgium and Greece: When is a Group Vulnerable?

Any attempt to comment exhaustively on the recent landmark ruling of the Grand Chamber in M.S.S. v Belgium and Greece in one page would be bound to fail. It is an extraordinarily rich judgment. In this post, I therefore limit my comments to one single aspect I find particularly intriguing: the concept of group vulnerability. The Court has referred to several groups as “vulnerable” in its case law. One example is the Roma minority who, “as a result of their history” – the Court has held – “has become a specific type of disadvantaged and vulnerable minority” in need of special protection (Oršuš). Another example concerns persons with mental disabilities. They have been regarded by the Court as a “particularly vulnerable group in society, who has suffered considerable discrimination in the past” (Alajos Kiss).

In M.S.S., the Court speaks, once again, of the applicant as a member of a vulnerable group. The case deals with the expulsion of an Afghan asylum seeker to Greece by Belgium in application of the EU Dublin Regulation. Asylum seekers, the Court holds, are a “particularly underprivileged and vulnerable population group in need of special protection.” What makes this group vulnerable in the eyes of the Court? What are its implications for this particular case? Should asylum seekers as such be deemed vulnerable? Judge Sajó thinks not. In his separate opinion in M.S.S, he contends that asylum seekers cannot be unconditionally considered a particularly vulnerable group in the sense the Court has used this term, that is, as a group “historically subject to prejudice with lasting consequences, resulting in their social exclusion.” But, should all groups fit into the idea of vulnerability that has apparently prevailed in the Court’s case law so far? In what follows, I address Judge Sajó’s criticism. But first, I briefly attempt to understand how the Court weighs up the vulnerable position of the applicant as an asylum seeker in its Article 3 analysis concerning both his detention and living conditions in Greece.  Continue reading

Police Violence against Roma: To Investigate or Not to Investigate, That Was Not a Question

When is the duty to investigate possible racist motives triggered in cases of ill-treatment and death in police custody? In one of the latest 2010 judgments (Mižigárová v. Slovakia) dealing with police brutality against a member of an ethnic minority, the Court did not consider that “the authorities had before them information that was sufficient to bring into play their obligation to investigate possible racist motives on the part of the officers” (para. 123).

The victim, a young man of Roma origin apprehended on suspicion of bicycle theft, ended up dead four days after he was shot in the abdomen during police interrogation. The police officer was off-duty and had had previous encounters with the victim. Numerous international organizations’ reports – referred to in the judgment – show that police violence against Roma in Slovakia was systemic at the relevant time. Could independent evidence of a systemic problem be deemed sufficient to alert authorities to the possible existence of racist motives in the absence of any other evidence? Continue reading

Leaving Aside Freedom of Religion Complaints

Some of us were expecting with great interest the Court’s judgment in Ali v. Romania, particularly its decision concerning the alleged violation of freedom of religion. The applicant, a Muslim serving a sentence in Rahova Prison, complained that the prayer room had been closed. The judgment came out this week. The Court’s decision on Article 9 (freedom of religion) has left me however puzzled, if not dissatisfied. Why? The reasons are quite simple.

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Freedom of Expression in Turkey: When Changes in the Wording Are Not Enough

The case of Dink v. Turkey recently confronted the European Court with the most brutal affront on freedom of expression: the assassination of a journalist. The Court found a violation of Article 2 (in its both substantive and procedural aspects) and of Article 10. At the basis of the freedom of expression violation was a Criminal Code provision (Article 301, former Article 159) which makes it an offense to “publicly denigrate Turkishness” (Türklük). Under this article, Turkish-Armenian newspaper editor, Fırat Dink, was put on trial. A few months after having been found guilty of denigrating Turkish identity, he was shot dead.

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Adoption of Same-Sex Partner’s Child: Taking One More Step?

The Court has recently declared admissible Gas and Dubois v. France, another major case concerning adoption by homosexuals. Earlier in E.B. v. France, the Court dealt with adoption by a single homosexual and addressed allegations of direct discrimination. Gas and Dubois v. France now confronts the Court with further challenges: the adoption of a same-sex partner’s child and claims of indirect discrimination. Continue reading

Upholding Unsuccessful Asylum Seekers’ Right to Family Life

In two recent judgments against Switzerland, the Court examined whether a five-year separation of unsuccessful asylum-seeker couples, pending their deportation, was contrary to Article 8 of the Convention.

The applicants, two Ethiopian nationals, were denied asylum in Switzerland and ordered to be sent back to their country of origin. They remained however longer in Switzerland since the Ethiopian authorities prevented their return. Over the course of their prolonged stay in Switzerland, they got married. Their husbands, also Ethiopian unsuccessful asylum seekers, were assigned to a different Canton from that of the applicants. The latter alleged they had been prevented from living with their husbands as a result of the refusal to reassign them to the same Canton.

The Court observed that leading a life as a couple was one of the essential elements of the right to respect for family life and that the refusal to assign the applicants to the same Canton as their husbands amounted to an interference with this right. The interference was prescribed by law (Federal Asylum Act). It furthermore pursued the equitable assignment of asylum seekers among the Cantons which could fall within the “economic well-being of the country.” But, has the Swiss government struck a fair balance between the individual interests and its own? Continue reading

Lautsi and the Empty Wall

Is an empty wall in a state school classroom more neutral than a crucifix on it? No, it is not, argued NYU Professor, Joseph Weiler, representing various intervening governments in the very much expected Lautsi hearing last week. In his view, the naked wall (the absence of religion) is not a neutral option, particularly in today’s societies where the principal cleavages are not among different religions but rather between religious and non-religious (see also his post in EJIL: Talk!).

The Lautsi case raises a whole array of complex issues concerning the limits of permissible state-church relationships under the Convention. Some of the most interesting questions raised during the hearing revolved around the idea of state neutrality in the context of public education. This post focuses on the neutrality debate that took place during the hearing.  Continue reading

Conscientious objection: unfortunate precedent should not survive in the Grand Chamber

It is great news that the Grand Chamber has accepted the request for referral in the conscientious objection case of Bayatyan v. Armenia. Last October, against commonly accepted standards in the Council of Europe Member States (see, PACE, Recommendation 1518, 2001, paras. 2 and 3) and, despite Armenia’s official commitment to pardon conscientious objectors (see, PACE, Opinion No. 221, 2000, para. 13, iv, d), the Chamber upheld a Jehovah’s Witness conviction for refusing to perform military service on religious grounds. The European Court concluded that “Article 9, read in the light of Article 4 § 3 (b), does not guarantee a right to refuse military service on conscientious grounds.”

The applicant had asked the Court to examine the case “in the light of the evolution of the law and the current practice among member states, the greater majority of which had recognized the right of conscientious objection.” The Court admitted the fact that the majority of Member States had adopted laws providing for alternative service for conscientious objectors. Unfortunately, however, the Court did not proceed this way. Continue reading

Turkey: voicing minority concerns in academic discussions

The European Court of Human Rights has recently ruled against a ban imposed on an American citizen’s re-entry into Turkey for past opinions concerning Kurdish and Armenian issues during her teaching activities in the eighties (Cox v. Turkey). The applicant had allegedly said to her university colleagues and students that the Turks had massacred the Armenians and assimilated the Kurds. She was expelled from Turkey and a ban imposed on her return. The Ministry of Interior held that the expulsion and subsequent ban were due to the applicant’s “separatist activities, which were incompatible with national security.” Continue reading

Remembering Lautsi

“When is a cross a cross?” was the heading of a post by Stanley Fish earlier this month in the NY Times Opinionator Blog. The entry referred to US Supreme Court’s recent ruling in Salazar v. Buono concerning a solitary Latin cross standing in the Californian desert as a memorial for those who fought in World War I. Alluding to the Establishment Clause jurisprudence, Fish notes that this case is the “latest chapter” of an “odd project of saving religion by emptying it of its content.” He argues that “[i]t has become a formula: if you want to secure a role for religious symbols in the public sphere, you must de-religionize them.”   Continue reading

Would a Niqab and Burqa ban pass the Strasbourg test?

By Lourdes Peroni, Saïla Ouald-Chaib and Stijn Smet

Whether it is a Burqa or a Niqab, what is at stake is a face-covering veil. This veil is increasingly becoming the subject of heated discussion within Europe. In France, a bill that aims to prohibit its wearing is the subject of a national debate. Also at the level of the European Union certain members of the European Parliament are calling for a general ban on the wearing of face-covering veils.

In this context, the Belgian Chamber of Representatives recently passed an amendment to its Penal Code prohibiting the wearing of clothes that “completely or largely cover the face” and thus became the first European country to introduce what is popularly referred to as the Burqa ban. Although the Chamber of Representatives already approved it with near unanimity (136 votes in favor, two abstentions), the law is not yet definitive as it requires approval by the Senate (which will only discuss the proposed bill after the upcoming federal elections). Despite the fact that the proposed new article of the Belgian Penal Code does not mention the words Burqa or Niqab, and is thus neutral on its face, the Parliamentary discussions clearly show that the mentioned face-covering veils were the intended target of the new provision. If passed by the Senate under its current form, the ban would apply in all public spaces, including streets, parks, shops, public transport, airports, banks, and, of course, public buildings. An exception is introduced for certain cases, including for festivities such as carnival, in which the wearing of face-covering clothing remains allowed. Whoever violates the new law risks a fine of around € 100 and/or a prison sentence of 1 to 7 days. Rationales put forward for the ban include ‘security reasons,’ ‘public order,’ and ‘the protection of the dignity of women and gender equality’.

In this post we would like to analyze the Belgian ‘Burqa ban’ from the angle of the jurisprudence of the European Court of Human Rights.

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Prisoners’ voting rights and the rule of law

Once again, the Court has been called upon to decide on a case regarding prisoners’ disenfranchisement. In Frodl v. Austria, the applicant, convicted of murder and sentenced to life imprisonment, was denied inclusion in the electoral register on the basis of Section 22 of the National Assembly Election Act which provides that ‘anyone who has been convicted by a domestic court of one or more criminal offences committed with intent and sentenced with final effect to a term of imprisonment of more than one year shall forfeit the right to vote.’

In 2005, the Court had ruled against a blanket restriction on prisoners’ voting rights in Hirst v. the United Kingdom (no. 2). In finding a breach of Article 3 of Protocol No. 1, the Court emphasized that the disenfranchisement in the United Kingdom was a “blunt instrument” applied to all convicted prisoners, irrespective of the length of their sentences and irrespective of the nature or gravity of their offences and their individual circumstances.

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Religion and the Public Space

Once more, the Court has been called to decide on a case concerning the public manifestation of beliefs through religious attire, this time in the open public square (Ahmet Arslan et Autres c. Turquie). The outcome is certainly positive. However, prospects for the wearing of religious garment inside public institutions are far from clear.

The case concerns the criminal conviction of members of a religious group for wearing their religious attire in public, on occasion of a ceremony held at a mosque in Ankara. After touring the streets of the city while wearing their distinctive clothing, and following various incidents, they were arrested and placed in police custody. Criminal proceedings under anti-terrorism laws followed. The day of the hearing, applicants appeared in court wearing their religious garments, including a turban which some of them refused to remove when asked to by the court. In the end, they were all convicted for violating Act 671 of 28 November 1925, which abolishes the use of religious headgear (except for religious officials who are authorized) and Act 2596 of 3 December 1934, which imposes a ban on wearing religious attire other than in places of worship or at religious ceremonies.

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