Author: Stijn Smet

Poll: Best and Worst ECtHR Judgment of 2016

Stijn Smet Uncategorized

The Strasbourg Observers are launching the annual poll for best and worst European Court of Human Rights judgment, 2016 edition!

This year, the pre-selection of nominees was particularly challenging. A diverse batch of 28 (!) judgments received nominations from our blogging team at the Human Rights Centre of Ghent University. Ultimately, our internal voting process led to the ten below nominees, across both categories.

It is now up to you, our readers, to elect the winner (best judgment) and loser (worst judgment) of 2016! The results will be announced next month.

Attentive readers will note that quite a large number of our nominees address asylum and migration issues. This not only reflects the ‘reality’ of today’s political and judicial scene in Europe. It also signals, in the category of best judgment, that we are impressed by how the European Court of Human Rights has remained, in the nominated cases, an independent stronghold against the populist tide that threatens to sweep migrants, asylum seekers and refugees away from Europe.

To refresh your memory on the nominated judgments – or introduce you to them – we have included brief summaries below the polls (please click ‘Continue reading’).

[the order of judgments in both polls is automatically randomized on each page visit]

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Karapetyan and Others v. Armenia: Senior Civil Servants as Defenders of Democracy or as Lackeys of the Executive?

Stijn Smet Freedom of Expression, Karapetyan and Others v. Armenia

By Stijn Smet

A few weeks ago, a Section of the European Court of Human Rights ruled that the Armenian government had not exceeded its margin of appreciation by summarily dismissing senior civil servants who had voiced critical remarks on the democratic nature of the 2008 presidential elections in Armenia. The Court’s view on the need for a ‘politically neutral body of civil servants’ in its Karapetyan and Others v. Armenia judgment is worrying. It risks demoting senior civil servants to mere lackeys of the executive, impeding them from playing a potentially vital role in defending democracy and the rule of law.

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Publication Book – Resolving Conflicts between Human Rights: The Judge’s Dilemma

Stijn Smet Our Most Recent Publications

Resolving Conflicts between Human Rights: The Judge's Dilemma (Hardback) book coverI am most pleased to announce the publication, with Routledge, of my book Resolving Conflicts between Human Rights: The Judge’s Dilemma. The book is based on my PhD research. Its first 20-odd pages – including the entire introduction – can be consulted here. This should give interested readers a good idea of what the book is about.

This is its first page:

Under the influence of the global spread of human rights, legal disputes across the globe are increasingly framed in human rights terms. In a myriad of court cases the world over, opposing parties can invoke human rights norms in support of their competing claims. Take, for instance, a labour dispute in which a church invokes its religious freedom to shield it from the complaint of a lay employee, who claims that his dismissal for having engaged in an extramarital relationship has violated his right to privacy. Or take the case of a politician who sues a newspaper for defamation, claiming that a corruption story on the newspaper’s front page has breached her right to reputation. Or the case of an adopted person who seeks a court order for the disclosure of information related to her origins, against the express wishes of her biological mother, who had given birth to her anonymously.

When confronted with such cases in which human rights conflict, judges face a dilemma. In ‘traditional’ human rights cases, in which human rights are opposed by the public interest, the former arguably function as ‘trumps’ over or ‘shields’ against the latter. Human rights, in other words, hold special normative force over the public interest invoked to justify their infringement. In ‘traditional’ human rights cases, the scales of justice are thus loaded in favour of human rights. When human rights conflict with each other, however, there are no ‘trumps’ to be played or ‘shields’ to be wielded. Instead, often difficult choices have to be made between superior norms that deserve principled equal respect. I do not mean to imply, here, that ‘traditional’ human rights cases are always easy to resolve, nor that conflicts between human rights invariably make for complex cases. But human rights conflicts do pose particular challenges for adjudication. Those challenges are identified and tackled throughout this book.

The central argument of this book is that human rights conflicts are uniquely problematic, in that they are special kinds of hard cases that require a distinct resolution framework. The need for such a distinct framework flows directly from the special normative force of human rights, as ‘trumps’ over or ‘shields’ against the public interest. Taking the special normative force of human rights seriously, I posit, necessitates a departure from the proportionality test in the specific domain of human rights conflicts. Throughout this book, I question the relevance of the proportionality test, ubiquitous in human rights reasoning, to conflicts between human rights. Instead, I propose an alternative (or refined) framework, specifically designed to tackle the hard cases in which human rights collide.

 

Fürst-Pfeifer v Austria: “A one-sided, unbalanced and fundamentally unjust judgment”?

Stijn Smet Conflicting Rights, Fürst-Pfeifer v Austria, Freedom of Expression, Right to Private Life

By Stijn Smet

In Fürst-Pfeifer v Austria, the majority of the Fourth Section of the ECtHR ruled that the applicant’s right to private life was outweighed by the freedom of expression of an online publication and offline newspaper. In one of the fiercest and most poignant dissenting opinions I have read to date, judges Wojtyczek and Kūris label the majority judgment as “a one-sided, unbalanced and … fundamentally unjust judgment” that “panders to prejudice” against persons, like the applicant, “with a history of mental-health problems”. In this post, I consider the majority judgment in Fürst-Pfeifer as symptomatic of a broader problem in the Court’s case law: one-sided balancing in the resolution of conflicts between human rights. I tackle this problem, along with others, in my forthcoming book Resolving Conflicts between Human Rights: The Judge’s Dilemma (Routledge, 2016).

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Poll: Best and Worst ECtHR Judgment of 2015

Stijn Smet Uncategorized

Following an annual and cherished tradition, we are hereby launching our poll for the best and worst ECtHR judgment of 2015!

As usual, preselecting a limited number of contenders was both fun and hard. There is always room for debate. Always other judgments that deserve a shot at the title. Other judgments to cheer at. And other judgments to boo (somewhat). But we hope you find your champ among our contenders. If not, you can always support an underdog by selecting ‘Other’.

The winners and losers will be announced in about a month.

To refresh your memory on the nominated judgments – or introduce you to them – we have included brief summaries below the polls (click ‘Continue reading’, immediately below the polls).

[the order of judgments in both polls is automatically randomised on each page visit]

SUMMARIES OF JUDGMENTS

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Human Rights Centre Intervenes with UN Special Rapporteur Maina Kiai in Freedom of Assembly Cases

Stijn Smet Amicus Brief, Mahammad Majidli v. Azerbaijan (No. 3)

By Stijn Smet

The Human Rights Centre of Ghent University has submitted a joint third party intervention with the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, in the ECtHR cases of Mahammad Majidli v. Azerbaijan (no. 3) and three other applications. All four cases concern the exercise of the right to freedom of peaceful assembly in Azerbaijan. The applicants were arrested, detained and criminally convicted for their participation in unauthorised assemblies in the centre of Baku, the capital of Azerbaijan. The demonstrations took place in 2010-2011. They were part of a wave of protests calling for increased democracy, inspired by the so-called ‘Arab spring’.

For the Human Rights Centre, the team that worked on the third party intervention consisted of four students[1] of the Human Rights Law Clinic of Ghent University’s Faculty of Law and their supervisor, Dr. Stijn Smet. In this post, we provide a summary of the arguments presented to the Court in the third party intervention.

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Bouyid v. Belgium: Grand Chamber Decisively Overrules Unanimous Chamber

Stijn Smet Bouyid v. Belgium, Prohibition of Degrading Treatment

By Stijn Smet

This Monday, 28 September 2015, the Grand Chamber of the European Court of Human Rights overruled the Chamber judgment in Bouyid v. Belgium (see our post on the Chamber ruling here). The Grand Chamber found a violation of art. 3 ECHR on the substantive aspect of the case, ruling by a clear 14 votes to 3 that the applicants in Bouyid had been the victims of degrading treatment at the hands of the Belgian police. This came as somewhat of a surprise, given the unanimous ruling of no violation by the Chamber. But it certainly was a pleasant surprise. In the first place for the applicants, who have now finally received justice for the ill-treatment they suffered at the hands of Belgian police officers. But also for us at the Human Rights Centre of Ghent University, since we had submitted a third party intervention in the case. In our third party intervention, we indicated that “the Grand Chamber judgment in Bouyid may well become a decisive moment in the Court’s case law on the interpretation … of Article 3 ECHR [and on] the protection offered against police violence under the Convention”. We were most pleased to note that the Grand Chamber has seized the occasion to set the necessary standards.

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Some Thoughts on Case Law Selection and Why it Is OK to Make Mistakes (as Long as You Learn from Them)

Stijn Smet Methodology

By Stijn Smet

In this post, I aim to make two fairly straightforward points. First: methodology is crucial in any type of (academic) research. This is obviously the case for legal research as well, even if legal scholars have traditionally been less concerned with methodological questions than scholars in most other disciplines (I am painting with a broad brush here). Legal scholars are particularly prone to remain obscure on their methodology in their writings. But something seems to be moving in legal academia. Many of today’s PhD researchers are keenly aware of the centrality of their methodology. They seem to pay exceedingly careful attention to the selection of and proper application of their methodology. Previous posts by PhD researchers Dorothea Staes and Laura Van den Eynde, as well as the very organisation of this blog post series, are a testament to this welcome evolution.

I have written this post with an audience of such dynamic PhD researchers in mind. This post is meant, first and foremost, for them. Which brings me to my second point: it is OK to make (some) mistakes as a PhD researcher, as long as you learn from them. Doing a PhD is, after all, part of one’s education. It is supposed to be a learning process, from which you emerge as a (much) better scholar than the one you were when you just started. It thus seems only natural, to me, that you are likely to make mistakes along the way. And that there should be room for such mistakes. As long as you learn from them.

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The Results Are In: Poll on Best and Worst ECtHR Judgment of 2014

Stijn Smet Uncategorized

With an impressive 1,000 votes cast, the time has come to announce the winners and losers of this year’s poll on the best and worst ECtHR judgment of 2014.

We will not let the audience linger in anxious anticipation, but will get straight down to the nitty-gritty. Here are the results:

Best Judgment – Top 3

  1. Matúz v. Hungary (47%).
  2. Tarakhel v. Switzerland (29%).
  3. Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania (15%).

Worst Judgment – Top 3

  1. S.A.S. v. France (40%).
  2. Senchishak v. Finland (36%).
  3. M.E. v. Sweden and Pentikäinen v. Finland (6%).

Festive congratulations to the winner, sincere commiserations to the loser.

A few – speculative – words follow on why the winner might have won, and why the loser might have lost.

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Poll: Best and Worst ECtHR Judgment of 2014

Stijn Smet Uncategorized

In keeping with our annual tradition, we hereby kindly invite all our readers to cast their vote for the best and worst European Court of Human Rights judgment of the previous year, i.e. of 2014.

2014 was a year of many highs for the ECtHR, but unfortunately also of a few lows (both liberally defined as such by the Strasbourg Observers team). The good and the bad are reflected in our nominations below.

Underneath the polls, we have provided links to the texts of the nominated judgments and our blog posts on them.

Should you not find your pick off the litter on our shortlists, you can always surprise everyone by introducing a novel contender – potentially saddling us with a dark horse – by selecting “other” and filling in your preference (we will periodically provide an overview of the votes for “other” judgments in the comments section).

As always, we will announce the winners and ‘winners’ (roughly) a month from now.

Let the voting commence!

 

Links to the nominated judgments and our posts

(best)

Al Nashiri v. Poland / Husayn (Abu Zubaydah) v. Poland – post and post.

Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania – post.

Matúz v. Hungary – post.

O’Keeffe v. Ireland – post.

Tarakhel v. Switzerland – post.

(worst)

Senchishak v. Finland – post.

S.A.S. v. France – post, post and post.

Pentikäinen v. Finland – post.

M.E. v. Sweden – post.

Biao v. Denmark – post.

Announcement: Event on Whistleblowing in Europe

Stijn Smet Freedom of Expression

We are proud to announce – on very short notice – an exciting event on whistleblowing in Europe, organized in Ghent by our Human Rights Centre colleagues Dirk Voorhoof and Flutura Kusari. The event links in neatly with Dirk Voorhoof’s recent post on this blog on the ECtHR judgment of Matúz v. Hungary. Below, you can find a short description of the event. For more information, including the programme and instructions regarding registration (free, but mandatory), please visit the Human Rights Centre’s website here.

The Human Rights Centre and the Centre for Journalism Studies of Ghent University are organising an event entitled “Whistleblowing in Europe: The Case of EULEX and Maria Bamieh.” The event will take place on Tuesday 2 December 2014 at 7 pm in Auditorium NB1, Law Faculty, Universiteitstraat 4, 9000 Ghent.

Background: The European Union Rule of Law Mission in Kosovo (EULEX) is the biggest international mission of the EU, with more than 1,600 staff members and an annual budget of more than 100 million Euros. In her function of public prosecutor for EULEX, Maria Bamieh filed several internal official requests to start an investigation against two of her colleagues suspected of taking bribes to shut down criminal cases. However, no actions were taken by EULEX. Instead, in October 2014 Ms. Bamieh was suspended for “leaking” documents to a local newspaper in Kosovo and a formal investigation was launched against her. Ms. Bamieh  is coming to Ghent University to tell her story as a whistleblower.

At the event, Ms. Maria Bamieh will give a keynote lecture: ‘A whistleblower’s story from Kosovo: a new challenge for Europe’. The lecture will be preceded by introductions by Professor Dirk Voorhoof and Ms. Flutura Kusari.

The Dangerous Implications of the “Naked Rambler” Case: On FEMEN Activists and Throwing Paint on Atatürk Statues

Stijn Smet Freedom of Expression, Gough v. the United Kingdom

By Stijn Smet

On 28 October 2014, the European Court of Human Rights ruled that the numerous convictions of Mr. Stephen Peter Gough – better known as “the naked rambler” – for insisting on appearing naked in public at all times, did not violate Mr. Gough’s freedom of expression.

Quite a bit of ink has already been dedicated to Mr. Gough’s case and to explaining why the ECtHR judgment warrants criticism. Particularly worth highlighting are the insightful contributions by Hugh Tomlinson over at Inforrm’s Blog and Marko Milanovic on EJIL: Talk!. Here, I will not regurgitate their poignant critiques. Instead, I set out to question a few specifically troubling passages in the Court’s judgment by indicating the dangerous implications they could have for other, analogous situations.

But first, as tradition dictates, I will briefly summarise the facts of the case and highlight the relevant passages of the Court’s judgment.

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Symposium ‘(How) Should the European Court of Human Rights Resolve Conflicts between Human Rights’

Stijn Smet Seminar

I am very pleased to announce the Symposium ‘(How) Should the European Court of Human Rights Resolve Conflicts between Human Rights’, which will be organised by the Human Rights Centre in Ghent on 16 October 2014.

The event will bring together an outstanding roster of European scholars and experts in the field: Samantha Besson, Sébastien Van Drooghenbroeck, Stijn Smet, Maleiha Malik, Christopher McCrudden, Leto Cariolou, Dirk Voorhoof, Eva Brems, Lorenzo Zucca, Javier Martínez-Torrón and Ian Leigh.

We are particularly proud to announce the presence of a number of (former) ECtHR Judges, who will act as commentators at the event: President Dean Spielmann, current Judges Ineta Ziemele and Paul Lemmens; and former Judges Françoise Tulkens and Lech Garlicki.

The Symposium will kick off with a general panel, on which three speakers will present their general approaches to the resolution of conflicts between human rights in the ECHR context. The remaining panels will each address a specific ECtHR case, namely Eweida v. UK (in the application of Ms. Ladele), Axel Springer v. Germany, Evans v. UK and Fernández Martínez v. Spain. Speakers on the specific panels will be joined in pairs and will present their respective views on how to tackle the conflict inherent in the respective cases.

The Judges commentators will evaluate the speakers’ arguments and proposals in light of the ECtHR case law.

Attendance of the Symposium is free. More information on the event, including a detailed programme, can be found here.

To register, please send an e-mail to Stijn Smet on hrcevent[at]ugent.be.

Fernández Martínez v. Spain: The Grand Chamber Putting the Brakes on the ‘Ministerial Exception’ for Europe?

Stijn Smet Fernández Martínez v. Spain, Freedom of Religion

Recently, the Grand Chamber of the European Court of Human Rights delivered its eagerly awaited judgment in Fernández Martínez v. Spain. The case concerned the refusal to renew the contract of a teacher of Catholic religion and ethics in a public secondary school, because he had allegedly caused a “scandal” when his situation of ‘married priest’ and his membership of the Movement for Optional Celibacy of priests became public knowledge. By a narrow 9-8 split decision, the Grand Chamber ruled that the applicant’s right to private life had not been violated.

Before the judgment came out, I was fairly confident that it would affirm what I have termed the ‘ministerial exception for Europe’ in an earlier post. Now that the judgment is out, I am forced to come to the opposite conclusion. Instead of confirming the reasoning of the Third Section, the Grand Chamber in Fernández Martínez appears to hark back to the reasoning in earlier cases, such as Obst v. Germany and Schüth v. Germany.

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Poll: Best and Worst ECtHR Judgment of 2013 – The Winners!

Stijn Smet Uncategorized

Now that a little over a month has passed since the opening of the polls and over 250 votes have been cast, it is time to announce the winners – and ‘winners’ – in the categories of best and worst ECtHR judgment of 2013!

In the category of best judgment, celebrating the best the ECtHR had to offer in 2013, Vallianatos and Others v. Greece takes the prize with 22.5% of the vote, just ahead of Horváth and Kiss v. Hungary (17%) and Vinter and Others v. the United Kingdom (13.5%). In Vallianatos, the Grand Chamber of the Court took an incremental step towards full equality for LGBT by ruling that Contracting States that introduce a system of registered partnerships have to open that system up to same-sex couples, since barring them entails unjustified discrimination on the basis of sexual orientation.

In the category of worst judgment, indicating that there is always room for improvement, the ‘winner’ is even clearer. By far the worst ECtHR judgment of 2013, according to the votes received, was Delfi AS v. Estonia. Delfi received an impressive 37% of the vote, double that of the second placed Animal Defenders International v. the United Kingdom (18.5%), with Bouyid v. Belgium landing a solid third place with 15% of the vote. Fortunately, this is one of those wonderful cases in which we are able to report that bad news is followed by good news, since the ‘winner’ in the category of worst judgment – Delfi – has recently been referred to the Grand Chamber, offering the Court a chance to redeem itself!

Poll: Best and Worst ECtHR Judgment of 2013

Stijn Smet Uncategorized

Following the success of last year’s poll on the best and worst ECtHR judgment of 2012, we are hereby inviting all our readers to vote for the new edition: the best and worst ECtHR judgment of 2013. The poll is intended as a celebration of the best the ECtHR had to offer in 2013, but also as a reminder that it sometimes failed to effectively protect the Convention’s human rights.

To guide the process, we have taken the liberty of proposing a preliminary selection of candidates in each category (listed in reverse alphabetical order). However, feel free to indicate your preferred – or despised – alternative judgment by selecting the option “Other”. We will have access to the names of the judgments entered and will regularly post an update on the votes for “Other” in the comments section.

And now, here are the nominees in the categories of best and worst ECtHR judgment of 2013:

 

 

 

A brief summary of the nominated judgments follows below. A link to a blog post on each judgment is also offered, providing further insights into the reasons for its nomination.

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Human Rights Centre Supports Request for Referral to the Grand Chamber in Delfi AS v. Estonia

Stijn Smet Delfi v. Estonia, Freedom of Expression

The Human Rights Centre of Ghent University has expressed its support for the request for referral to the Grand Chamber in the freedom of expression case of Delfi AS v. Estonia. The Human Rights Centre has submitted its considerations in a joint letter to the European Court of Human Rights, signed by an impressive list of 69 media organisations, internet companies, human rights groups and academic institutions.

As indicated in the joint letter to the Court

The [Delfi] case involves the liability of an online news portal for third-party defamatory comments posted by readers on the portal’s website, below a news item. A unanimous chamber of the First Section found no violation of Article 10, even though the news piece itself was found to be balanced and contained no offensive language. The portal acted quickly to remove the defamatory comments as soon as it received a complaint from the affected person, the manager of a large private company.

A few excerpts from the letter to the Court are reproduced below. The full text of the letter can be found here. The full text of the referral request is available here. Finally, a critical post on the Chamber judgment in Delfi AS v. Estoina – written for Strasbourg Observers by Professor Dirk Voorhoof – can be found here.

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ECtHR Rules that Police Officers Can Slap Suspects in the Face Without Contravening Article 3 ECHR: Bouyid v. Belgium

Stijn Smet Bouyid v. Belgium, Prohibition of Inhuman Treatment, Prohibition of Torture

Recently, the European Court of Human Rights failed to condemn Belgium for two incidents in which police officers slapped suspects of foreign origin – including a minor – in the face during police questioning in relation to trivial affairs. The Court specifically ruled that a one-time slap in the face did not, under the specific circumstances of the case, meet the threshold for applicability of art. 3 ECHR. Although the Court condemned the police officers in moral terms, in terms of human rights law their behaviour was apparently completely acceptable. In this post I will argue that the unanimous ECtHR ruling dramatically falls short of what one might expect from a human rights court.

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Call for proposals: “Longer-term reform of the ECHR system and the European Court of Human Rights”

Stijn Smet Uncategorized

We would hereby like to inform our readers of a call for information, proposals and views on the longer-term future of the system of the European Convention on Human Rights and the European Court of Human Rights, recently launched by the Council of Europe:

The Council of Europe’s Committee of experts on the reform of the European Court of Human Rights (DH-GDR) is holding an open call for information, proposals and views on the issue of the longer-term reform of the system of the European Convention on Human Rights and the European Court of Human Rights.

This process follows on from the Brighton Declaration, adopted at a High-level conference in April 2012. It is intended to be open and inclusive, allowing questions to be raised and examined concerning all aspects of the Convention system and the Court.

The results of this work will eventually be included in a report of the Steering Committee for Human Rights (CDDH), to be submitted by 15 April 2015 to the Council of Europe Committee of Ministers.

The consultation process is open to everyone, subject to certain basic procedural requirements, set out in the submission form.

The deadline for submitting contributions is mid-day (12 p.m., French local time) on Monday 27 January 2014.

More information on the call, including the submission form, can be found here (in English) and here (in French).

Ricci v. Italy: Less Restrictive Alternatives in Exercising Freedom of Expression?

Stijn Smet Freedom of Expression, Ricci v. Italy

On 8 October 2013, the European Court of Human Rights released its judgment in the case of Ricci v. Italy. The case concerned a broadcast by the satirical television programme Striscia la notizia (on Canale 5), which aired an intercepted episode of another television programme, normally broadcast on the public network RAI. The applicant in Ricci is the producer of the programme. In its judgment, the Court ruled that the domestic authorities – which had sentenced the applicant to four months imprisonment – had imposed a disproportionate sanction on her. However, the Court also ruled that the applicant had acted in contravention of the ethics of journalism by disseminating confidential communications and that, therefore, her condemnation as such did not violate art. 10 ECHR. It was only because of the imposition of an excessive – criminal – sanction that her freedom of expression had been violated. The Court’s judgment is particularly interesting, because it continues the recent trend of chastising applicants for the means they have chosen to exercise their freedom of expression, thereby seemingly imposing a less restrictive alternative requirement upon them.

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New Article: ‘Conflicts between Absolute Rights: A Reply to Steven Greer’

Stijn Smet Prohibition of Torture

I am very pleased to announce the publication of my article ‘Conflicts between Absolute Rights: A Reply to Steven Greer’ in the latest issue of Human Rights Law Review.

The article can be found here.

This is the abstract:

Can absolute rights conflict? Is it permissible to torture a person to save others from torture? And what can judges learn from trolleys? In this article, presented as a reply to an article by Steven Greer, I investigate the above questions in the context of the case law of the European Court of Human Rights. Drawing on Gäfgen v Germany, I construct a hypothetical case of conflicting absolute rights, which cannot be resolved by the existing strands of legal reasoning in the case law of the Court. Instead, I argue, recourse must be had to moral reasoning. In discussing one of moral philosophy’s deepest conundrums—the Trolley Problem—I rely on the distinction between negative and positive obligations and between direct and indirect agency to unravel the dilemma. Translating the moral argument into legal reasoning, I conclude that in cases of conflicts between absolute rights, negative obligations principally trump positive obligations.

Manifestly ill-founded … by a majority

Stijn Smet Admissibility, Ciuvică v. Romania, Kochieva and Others v. Sweden, Sukyo Mahikari France v. France

In this post I want to flag three inadmissibility decisions, delivered by the Court’s Chambers over the past few months, in which the applicant’s claims are declared manifestly ill-founded, by a majority. Like so many inadmissibility decisions, the three summarised below may have easily passed under the radar of many of our readers. These particular decisions are nevertheless worth pointing out, because they raise a number of important questions and concerns. How manifestly ill-founded can a claim really be if a Chamber of seven Judges reaches that conclusion by a majority? Moreover, what does “by a majority” mean in these cases? How many Judges disagreed? And what did their disagreement entail? Did the Judge(s) in the minority consider the claim worthy of an examination on the merits? Or were they of the opinion that the Convention rights of the applicant had been violated?

None of these questions can be satisfactorily answered, for two reasons. Firstly because – unlike in judgments – no information is given on the division in the Chamber that delivered these decisions. The decision merely states “manifestly ill-founded, by a majority”, without indicating how many Judges disagreed. Secondly, because there is no room for separate opinions in decisions. We can thus not know why the Judge(s) in the minority disagreed on the finding that the claim was manifestly ill-founded. As a result of both factors, we are left puzzled as to what “manifestly ill-founded, by a majority”, a seemingly contradictory statement, might mean.

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ECtHR Really Applies Less Restrictive Alternative: Saint-Paul Luxembourg S.A. v. Luxembourg

Stijn Smet Freedom of Expression, Right to Private Life, Saint-Paul Luxembourg v. Luxembourg

The structured proportionality test, as utilised by the German Constitutional Court (among others) and championed by Robert Alexy and his followers, subjects limitations of fundamental rights to a three-pronged test. The test is intended to examine – step by step – a measure’s (i) suitability, (ii) necessity and (iii) proportionality stricto sensu. Correct application of the test demands, according to Alexy and his followers, the examination of each of these three elements in order. As soon as a measure fails one of the steps, it is unconstitutional and there is thus no need to examine the next step(s).

Scholars who advocate this structured version of the proportionality test often lament its poor or wrongful application by courts, including the European Court of Human Rights. The ECtHR has, by and large, indeed not developed nor applied such a strictly ordered version of the proportionality test. It is particularly rare for the Court to apply the necessity test as separate from the proportionality stricto sensu test (also known as balancing). Instead, the Court has generally looked at the existence of less intrusive measures as an element to consider in the balance or it has continued to examine a measure’s proportionality in the strict sense after having indicated that less restrictive measures were available.

Not so in the recent case of Saint-Paul Luxembourg S.A. v. Luxembourg. In its judgment in that case, the ECtHR has – to my knowledge in a very exceptional move – applied the less restrictive alternative test as Alexy intended it to function, much to the satisfaction of the proponents of a structured proportionality test, I imagine.

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X. and Others v. Austria (Part II): A Narrow Ruling on a Narrow Issue

Stijn Smet Prohibition of Discrimination, X. and Others v. Austria

In this second post on the Grand Chamber judgment in X. and Others v. Austria, I will focus on the narrowness of it all: the narrowness of the issue before the Court, the narrowness of the ruling and the narrow approach the majority took to the European consensus. Although I believe the majority should be applauded for taking incremental steps towards extending equal rights to LGBT persons, the approach it takes to the European consensus leaves much to be desired. Indeed, X. and Others provides a perfect example of how the Court sometimes uses the consensus argument to provide a post hoc rationalisation and justification of an outcome it has already reached, rather than as a substantive argument that leads to that outcome.

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Poll on the Best and Worst ECtHR Judgment of 2012: the ‘Winners’

Stijn Smet Uncategorized

Now that our poll on the best and worst ECtHR judgments of 2012 has been running for a couple of weeks, we considered it a good moment to formally announce the results of the voting, as of now.

We curiously noted that visitors were much more likely to vote for best judgment (171 votes) than for worst judgment (91 votes). If this was due to a sense of optimism, a desire to focus on celebrating the good, rather than chastising the bad, then we applaud such a positive attitude! Despite our repeated criticism of certain Court judgments, we also consider that the Court should receive a high five for “job well done!” much more frequently than it should be berated for failing to protect human rights in the Council of Europe region.

With that thought in mind, here is the top three in each category:

Best judgment

1) Yordanova and Others v. Bulgaria (34.5%)

2) El-Masri v. the former Yugoslav Republic of Macedonia (22.22%)

3) Hirsi Jamaa and Others v. Italy (18.71%)

This indicates Yordanova and Others v. Bulgaria as a clear (and somewhat surprising, given that it was not a Grand Chamber judgment) winner in the best judgment category. But really, all three judgments show us what the ECtHR is capable of when it is at its best. And the Court deserves ample praise for that!

Worst judgment

1) Austin v. the United Kingdom (25.27 %)

2) Van der Heijden v. the Netherlands (23.08%)

3) Scoppola v. Italy (no. 3) (21.98%)

Voting was so close that these three Grand Chamber judgments could all be considered the ‘winners’ in the worst judgment category. And thus, really, the big losers of 2012. The disappointing outcome and lackluster reasoning in all three cases should function as a strong reminder why it is appropriate – yes, even necessary – for the ECtHR to be criticized whenever it lets slip the excellent standards it generally upholds.

On a sidenote, we should emphasise that the voting results for worst judgment reveal that at least one other Grand Chamber judgment would have deserved a nomination in this category. Mouvement Raëlien Suisse v. Switzerland received five votes, despite not even having been nominated!

Eweida, Part II: The Margin of Appreciation Defeats and Silences All

Stijn Smet Eweida and Others v. the United Kingdom, Freedom of Religion

In this second post on Eweida and Others v. the United Kingdom, I deal with the conflict between freedom of religion (or the prohibition of indirect discrimination on the basis of religion, if you so wish) and the prohibition of discrimination on the basis of sexual orientation (or an employer’s interest in upholding equality and diversity policies, if you so wish) in the cases of Ms. Ladele and Mr. McFarlane.

There were many reasons to be excited about an ECtHR ruling in the cases of Ladele and McFarlane. Many reasons to find both cases intriguing and challenging. And as many reasons to be disappointed with the astonishingly brief and extremely deferential reasoning the Court eventually delivered. In this post, I aim to lay bare some of the main shortcomings of the Court’s reasoning, without necessarily challenging the outcome of the case.  

I will focus almost exclusively on Ms. Ladele’s case. The case of Mr. McFarlane will largely be left aside, both for reasons of space and because his case is less challenging than Ms. Ladele’s case.

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Poll: the best and the worst ECtHR judgments of 2012

Stijn Smet Uncategorized

To start off 2013, we are organising a poll to celebrate the best and recall the worst the ECtHR jurisprudence had to offer in 2012. We are inviting all readers to vote for what they consider to be the best and the worst ECtHR judgment of 2012, in the two polls below.

We have nominated five judgments in each category (ranked alphabetically). You can find a short summary of each judgment below, as well as the reasons for its nomination and links to our blog post(s) on the case.

If you do not find your own preferred judgment among our nominees, you can select the option “other” and write the name of the judgment (for the detailed results under “other”, see the comments at the bottom of this post). If you choose to suggest an alternative, we kindly invite you to motivate your choice by writing a comment to this post (comments are moderated; please only submit one and wait for us to clear it).

Happy voting!

 

 

For an overview of the nominees, click on “Read more” Continue reading →

X. v. Turkey: Why a Ruling on the Basis of Discriminatory Effects Would Have Been Preferable

Stijn Smet LGBT Rights, Prohibition of Discrimination, Prohibition of Inhuman Treatment, X. v. Turkey

A few weeks ago, the European Court of Human Rights released its judgment in X. v. Turkey. The case concerned a homosexual detainee who was put in an individual cell and under a very restrictive detention regime, after he complained about intimidation and harassment by heterosexual detainees with whom he shared a collective cell. On the ECHR Blog, our fellow academic and blogger Antoine Buyse heralded the judgment as “an important development in the Court’s case-law”: “[f]or the first time in its existence, the European Court of Human Rights found that a complaint related to sexual orientation discrimination yielded a violation of Article 3 ECHR.”

Inspired by the recent posts by Alexandra on “what constitutes racial discrimination?” and by Lourdes on “who should provide which standard of proof?”, I will argue that the Court should have gone beyond the formal approach to discrimination it displayed in X. v. Turkey. Rather than searching for discriminatory intent and motives, the Court should have primarily looked at discriminatory effects. I believe that a reasoning on the basis of discriminatory effects would have provided firmer ground to the Court’s finding of a violation of art. 14 juncto art. 3 ECHR. It would also have countered the – prima facie sensible – dissent of Judge Jočienė to the majority ruling.

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El Haski v. Belgium: Continued Debate on the (In)admissibility of Evidence Obtained through Ill-treatment

Stijn Smet El Haski v. Belgium, Right to a Fair Trial

Earlier this week, the European Court of Human Rights released its judgment in El Haski v. Belgium, a case on the admissibility at a criminal trial of evidence potentially obtained through ill-treatment of third persons in a third State (Morocco). The ECtHR ruled that the Belgian authorities should have excluded the evidence from the trial. The applicant, who had been convicted for his membership of a terrorist organisation (le groupe islamique combattant marocain; GICM), was granted € 5,000 compensation. The Belgian media quickly picked up on the judgment. Headlines titled “Terrorist receives compensation” and comments referred to “growing criticism” of the European Court “in most Western European countries, including Belgium”, “because Strasbourg systematically exceeds its competences”.

In this post I will first attempt to place the judgment in the wider case law of the Court on the admissibility of evidence obtained through violations of art. 3. I will return to the assessment of the case in the Belgian media at the end of the post.

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Fernández Martínez v. Spain : Towards a ‘Ministerial Exception’ for Europe?

Stijn Smet Fernández Martínez v. Spain, Freedom of Religion, Right to Private Life, Right to Respect for Family Life

In its recent judgment in Fernández Martínez v. Spain, the European Court of Human Rights appears to have abandoned its tried and tested formula of ad hoc balancing between the collective dimension of freedom of religion and individual human rights, established in Obst v. Germany, Schüth v. Germany and Siebenhaar v. Germany. In Fernández Martínez,the Court accepted the Spanish courts’ categorical balancing to the benefit of church autonomy instead, thereby echoing the opinion of the United States Supreme Court on the ‘ministerial exception’ in Hosanna-Tabor.

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Strasbourg Observers Blow Out Two Candles

Stijn Smet Uncategorized

This month we are celebrating the Strasbourg Observers’ survival in the blogosphere – two years and counting! – and our continued eagerness to share our views on the Court’s case law with you, our readers.

Much to our delight, we seem to be attracting more and more people. Over the past year, our blog has landed more than 75,000 page views, bringing us to a current grand total of over 130,000 views.

432 persons have been brave enough to click the “Sign me up!” button. We are grateful for their demonstrated appreciation of our blog and their remarkable perseverance in reading our posts!

We also, and particularly, warmly thank the many guest bloggers who have joined us in commenting on the Court’s case law. Colleagues at Ghent University, fellow academics from other universities, lawyers and members of NGOs alike, thank you for having elevated our blog to a higher level with your insightful and excellent posts!

We recently also gained access to a world map, indicating the countries from which people reach us (strictly numerical and entirely anonymous, of course). Over the past two months, the once blank map has been coloured by visitors from nearly 150 countries! We seem to be most popular in the United Kingdom. The number of page views from the UK by far outranks the other countries and is equivalent to that of the next four countries combined (the United States, Belgium, France, and the Netherlands).

We thank all of you, wherever you may reach us from, for reading our posts and sharing your thoughts with us. We hope you will join us for another fruitful year of commenting on the Court’s case law. Bedankt, gracias, paldies!

Othman (Abu Qatada) v. the United Kingdom: Questioning Gäfgen?

Stijn Smet Gäfgen v. Germany, Othman (Abu Qatada) v. the United Kingdom, Prohibition of Inhuman Treatment

The European Court of Human Rights recently delivered its judgment in Othman (Abu Qatada) v. the United Kingdom, a case concerning the deportation of a terrorism suspect from the UK to Jordan. The applicant, Mr. Othman, had arrived in the United Kingdom in 1993, having fled Jordan. He requested asylum, alleging that he had been detained and tortured by the Jordanian authorities. He was recognised as a refugee in 1994 and granted leave to remain in the UK for an initial period of four years. In 1998 he applied for indefinite leave to remain in the UK. In 2002, while his application was still under consideration, he was arrested and taken into detention under the Anti-terrorism, Crime and Security Act of 2001. In August 2005 he was served with a notice of intention to deport. He challenged his possible deportation, thereby eventually reaching the European Court of Human Rights, alleging that there was a real risk that he would be subjected to torture upon his return to Jordan, in violation of article 3 ECHR. He also feared that he would face a retrial for offences (conspiracy to cause explosions and membership of a terrorist organisation) for which he had been convicted in Jordan in absentia in 1999. He claimed, inter alia, that there was a real risk that evidence obtained by torture – either of him, his co-defendants or other prisoners – would be admitted against him during the retrial, in violation of article 6 ECHR.

The Court ruled that article 3 would not be violated if the applicant were to be deported to Jordan, holding that sufficient safeguards were put in place to prevent the applicant’s torture through the signing of a Memorandum of Understanding between Jordan and the United Kingdom in which the latter had obtained diplomatic assurances that the applicant would not be tortured in Jordan. In this post I will  not address the article 3 part of the judgment in further detail, but will focus on the article 6 claim instead, since it raises possible concerns of compatibility with the Court’s leading judgment on the use of evidence obtained through inhuman treatment, Gäfgen v. Germany (1 June 2010).

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Competing Interests in Paternity Cases: Iyilik v. Turkey

Stijn Smet Conflicting Rights, Iyilik v. Turkey, Right to Private Life

Facts

The recent judgment of Iyilik v. Turkey concerns competing interests of an applicant and his (legal) daughter in a paternity case. The wife of the applicant, Mr. Iyilik, had given birth to a daughter in 1966. Mr. Iyilik denied being the biological father and a year later the couple divorced. Mr. Iyilik then brought proceedings to contest his paternity. Blood tests, the only available tests at the time, were taken. The results showed that Mr. Iyilik could be the father, just as any other man with the same blood type could be. The domestic courts consequently denied his request for contestation of paternity. In 2002, Mr. Iyilik submitted a new complaint, requesting reopening of the file and re-examination of his paternity in light of new scientific developments, i.e. the possibility of undergoing a DNA test. In pursuing his new claim, Mr. Iyilik relied on a specific article of the Turkish Civil Procedural Code which allowed for reopening of any civil proceedings if the impossibility to present certain pieces of evidence during the initial proceedings had constituted force majeure. The courts, however, rejected Mr. Iyilik’s request, relying on established jurisprudence of the Turkish Court of Cassation to the effect that the state of scientific progress could not reveal any force majeure.

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A Poll on Palomo Sánchez

Stijn Smet Freedom of Expression, Right to Reputation

We are pleased to be organising our first poll to ask our readers about their opinion!

The poll concerns the recent judgment of Palomo Sánchez v. Spain in which the Grand Chamber of the Court ruled that the Spanish courts had not failed their positive obligation to protect the freedom of expression of four employees who were dismissed by their employer for having insulted two of their co-workers and a member of management. The employees, who were also executive members of a trade union they had set up, were dismissed after they had published two articles and a cartoon in the union newsletter, severely criticising management and specifically denouncing two of their co-workers for having testified in favour of the company in proceedings the applicants had brought against it in the context of a social dispute. In its judgment the Grand Chamber held in particular that, due to their offensive and insulting character, the cartoon and articles overstepped the bounds of acceptable criticism of private individuals under article 10 ECHR. The Court held that the sanction of dismissal was not disproportionate and that article 10, read in the light of article 11, had not been violated.

Considering the crucial importance of Palomo Sánchez for trade union freedom of expression we are curious about the opinion of our readers on one particularly controversial aspect of the case and the judgment: the cartoon and its assessment by the Court.

Participate in our poll and find out what the other voters thought of it! Should you wish to clarify your response, do not hesitate to use the comment section below the post.

Translation from left to right (by Spanish native speaker): “Slurp, slurp, is everything going well, Mr. Garcia?”; “I already told you that you were FREED as long as you kept me well-served … SERVED!”; “Listen, this one has jumped the queue!”; “Shut up … or the “sucking” up will otherwise be over for us”.

Blood Donations and the Permanent Exclusion of “Men Who Have Sex with Men”

Stijn Smet LGBT Rights, Prohibition of Discrimination, Stereotypes

In Belgium, as in many other European countries, homosexual men are not allowed to donate blood. To be more precise, not homosexual men are permanently excluded from donating blood, but “men who have sex with men”. “What’s in a name?”, you might ask. That is what I intend to find out in this post.

Reasonable arguments are invoked on each side of the blood donation debate: a concern for public health on one side and a struggle against stereotyping and discrimination on the other. But who is in the right here? Who has the law, and more particularly European human rights law, on its side? In this post I will attempt to offer a possible answer to these questions through the lens of the case-law of the European Court of Human Rights. Obviously, the Court not having ruled on this issue, what follows is based on my interpretation of the Court’s discrimination case-law, combined with ideas on how a homosexual applicant may argue a hypothetical case in front of it.

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Khodorkovskiy v. Russia: European Court of Human Rights Rules “No Proof of Political Trial”

Stijn Smet Khodorkovskiy v. Russia

A few weeks ago the European Court of Human Rights delivered its judgment in the high profile case of Khodorkovskiy v. Russia. Mr. Khodorkovskiy was, as I assume most readers are aware, until recently one of the richest persons in Russia and the major shareholder in one of Russia’s formerly largest oil companies (Yukos). He is of course most known for his criminal prosecution and detention by the Russian authorities in 2003 on suspicion of theft and money laundering, ultimately leading to his conviction in 2005. Mr. Khodorkovskiy has always maintained that the trial against him was politically motivated and orchestrated to silence his involvement in Russia’s political life, from 2002 onwards. In addition to financing opposition political parties, he openly criticised Russia’s internal policy at the time, calling it anti-democratic. Many find Mr. Khodorkovskiy’s allegations that his trial was politically motivate reliable and at the very least question the true motivation behind his repeated convictions. Earlier this year, following the extension of Mr. Khodorkovskiy’s conviction with a further 7 years in December of last year, the Guardian reported that an insider of the Russian judiciary, the assistant of the Judge who had ruled on the extension of Mr. Khodorkovskiy’s prison sentence, confirmed the claims that the verdict was “ordered from above”. She stated in particular that “all of legal society understands perfectly well that this is a made-to-order case, a made-to-order trial.”

Among other articles, Mr. Khodorkovskiy relied on the rarely invoked – and even more seldomly granted – article 18 of the European Convention on Human Rights before its Court, alleging that Russia had used criminal prosecutions for a political end and in order to appropriate the company’s assets. The ECtHR found no violation of article 18.

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“Living Together” and Diversity in Europe

Stijn Smet Minority Rights

The Council of Europe recently released a report on diversity in Europe, entitled “Living together: Combining diversity and freedom in 21st-century Europe”, drawn up by the ‘Group of Eminent Persons of the Council of Europe’. The report aims to  negotiate “the challenges arising from the resurgence of intolerance and discrimination in Europe”. It “assesses the seriousness of the risks, identifies their sources and makes a series of proposals for “living together” in open European societies”. The findings and recommendations are based “firmly on the principles of the European Convention on Human Rights, especially individual freedom and equality before the law.” What makes this report particularly interesting is the impressive list of persons that have worked on it. Among the drafters are not only academics from some of the most reputable universities in Europe, but also former high level politicians, including Emma Bonino, Javier Solana and Joschka Fischer.

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Freedom of Expression and the Right to Reputation: Human Rights in Conflict

Stijn Smet Conflicting Rights, Freedom of Expression, Right to Reputation

As part of our research project I have written a paper on the conflict between freedom of expression and the right to reputation in the defamation case law of the European Court of Human Rights. The paper, based on an analysis of over 120 judgments and entitled “Freedom of Expression and the Right to Reputation: Human Rights in Conflict”, has now been published in the American University International Law Review, Vol. 26, No. 1, 183-236.

The article is available on the website of the journal. It’s free of charge, so if you are interested, get it while it’s hot! Direct link: here.

Comments on the article, below this post or via e-mail, are more than welcome!

The abstract:

Ever since the European Court of Human Rights has recognised the existence of a right to protection of reputation under the European Convention on Human Rights, a conflict between Convention rights arises in defamation cases. In such situations of conflict between human rights, their indivisibility requires that both rights carry a priori equal weight. Yet, the research conducted for this article indicates that the Court engages in preferential framing and incomplete reasoning when attempting to resolve the conflict between freedom of expression and the right to reputation in its defamation case law. In order to pre-empt such preferential framing and to improve the reasoning of the Court, the article proposes a theoretical model for the resolution of conflicts between human rights. The defamation jurisprudence of the Court is critically analysed through the lens of this model. The article demonstrates how the model might prove to be a useful tool to improve the legal reasoning of the Court in defamation cases.

Lautsi v. Italy: the Argument from Neutrality

Stijn Smet Freedom of Religion, Lautsi v. Italy, Right to Education

Lautsi v. Italy was destined to achieve legendary status in the ECtHR’s case law. In fact, it became the stuff of legends long before the Grand Chamber’s judgment came out. Rarely has a judgment of a supranational court put such a spell on people. Rarely has it inspired such passionate comments and speculation even before it was released. Rarely have so many people looked forward to a judgment with such anxious anticipation. But why? What is it about the issues involved in this case that causes it to speak so strongly to the hearts and minds of so many? It is a question I have been asking myself for a while now, while reflecting on the tension between freedom of and freedom from religion in the Court’s case law. And the question is haunting me now more than ever, having read the Lautsi judgment and the comments in the blogosphere thereon and preparing a post of my own. I have not been able to come up with a satisfactory answer to the question. At least not satisfactory to a legal mind. My personal preoccupation with Lautsi seems to stem from a strong conviction that neutrality requires that the state should not hang crucifixes on the walls in public schools. I will attempt to explain my opinion in this post. But I will also explain why this is perhaps not an issue to be decided by a human rights court.

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Mgn Limited v. the United Kingdom: Naomi Campbell v. the Tabloid Press

Stijn Smet Conflicting Rights, Freedom of Expression, Mgn Limited v. the United Kingdom, Right to Private Life

Mgn Limited v. the United Kingdom concerned several articles published in 2001 in the tabloid Mirror (now Daily Mirror), revealing that supermodel Naomi Campbell was attending Narcotics Anonymous (NA) meetings in an attempt to treat her drug addiction. The articles were accompanied by several photographs, including one in which Ms. Campbell was seen standing in the street in front of a building as the central figure in a small group, dressed in jeans and wearing a baseball cap. Reportedly having just attended an NA meeting, she was being embraced by two people whose faces had been masked on the photograph. The photograph had been taken by a free-lance photographer contracted by the newspaper for that job. He took the photographs covertly while concealed some distance away in a parked car. Ms. Campbell brought proceeding against the Mirror, claiming a breach of confidentiality.

She won in front of the High Court, but its decision was unanimously reversed by the Court of Appeal. Ms. Campbell consequently brought an appeal in front of the House of Lords. The House of Lords was divided on the issue. It eventually ruled in favour of Ms. Campbell in a 3-2 judgment. All Judges essentially agreed that the publication of Ms. Campbell’s attendance of NA meetings was in the public interest, since she had previously denied taking drugs. The public thus had a right to be informed of the fact that it had been misled by Ms. Campbell. However, the majority of the House of Lords ruled that the publication of the additional information, including the photographs taken of Ms. Campbell leaving NA meetings, was not justified and had breached her privacy rights.

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Haas v. Switzerland and Assisted Suicide

Stijn Smet Conflicting Rights, Haas v. Switzerland, Right to Private Life

The applicant in Haas v. Switzerland was a 57 years old male who suffered from a bipolar disorder since nearly 20 years. Wishing to commit suicide, Mr. Haas attempted to obtain a lethal substance (sodium pentobarbital) that was only available on medical prescription. To that end, he contacted several psychiatrists, but was not able to obtain a prescription. Mr. Haas filed applications with the domestic authorities to obtain permission to acquire the substance without prescription, but they all rejected his applications, up to the Federal Tribunal, inter alia because his case did not reveal any urgency that would justify departure from the regulatory framework.

Mr. Haas then sent a letter to 170 doctors, requesting their assistance in obtaining a prescription. None replied positively. Some answered that they were not competent to deliver such a prescription, some refused for ethical reasons and others replied that his condition was treatable.

Mr. Haas subsequently filed an application with the European Court of Human Rights, complaining of a violation of his right to respect for his private life. He argued that, due to the domestic courts’ decisions, his right to decide the moment and the manner of his death had not been respected. He maintained that, in exceptional circumstance, such as his, access to the necessary substances should be provided by the State.

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Contradictions in Defamation Cases

Stijn Smet Conflicting Rights, Freedom of Expression, Novaya Gazeta V Voronezhe v. Russia, Right to Reputation, Sofranschi v. Moldova

Before its holiday break, the European Court of Human Rights released two judgments in defamation cases, Novaya Gazeta V Voronezhe v. Russia and Sofranschi v. Moldova. Both cases concern allegations of abuse and irregularities. While both judgments contain good elements, in my opinion they also reveal faulty reasoning on the part of the Court. Most interestingly, the judgments contradict each other on some crucial points. Thus one judgment provides alternatives to the shortcomings of the other.

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A., B. and C. v. Ireland: Abortion and the Margin of Appreciation

Stijn Smet A B and C v. Ireland, Conflicting Rights, Right to Private Life

A., B. and C. v. Ireland concerned three Irish applicants who, in their first trimester of pregnancy, had travelled to England to have an abortion because they believed they would not be allowed to have one in Ireland.

The Irish Constitution, unlike the European Convention on Human Rights, explicitly extends the right to life to the unborn foetus. Abortion is moreover prohibited under the criminal law by section 58 of the Offences Against the Person Act 1861 (“the 1861 Act”) providing as penalty “penal servitude for life”. However, this does not mean that abortion constitutes a criminal act in all circumstances in Ireland. The 1861 legislation needs to be read in light of the amended Irish Constitution, which states in Article 40.3.3: “3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right; This subsection shall not limit freedom to travel between the State and another state; This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.”

However, no legislation or other regulatory measures have been adopted to clarify what is meant by the “equal right to life of the mother” and in which situations there is a real and substantial risk to that right to life such as to outweigh the right to life of the unborn foetus.

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The Right to Reputation under the European Convention on Human Rights

Stijn Smet Polanco Torres and Movilla Polanco v. Spain, Right to Reputation

Does a right to reputation exist under the European Convention on Human Rights? And when does such a right exist? Keeping Pfeifer v. Austria (15 Nov. 2007) in mind, those may appear to be redundant questions. But they are not.

I will discuss these questions in light of the recent judgment of the European Court of Human Rights in the case of Polanco Torres and Movilla Polanco v. Spain, a typical defamation case. In broad terms the facts of the case are as follows. A newspaper published an article alleging involvement of Mrs. Polanco Torres with a company that allegedly engaged in unlawful transactions. Her husband, a judge, was also mentioned by name in the newspaper article. Both Mrs. Polanco Torres and her husband instituted proceedings for the protection of their honour, but lost. Mrs. Polanco Torres and her daughter, acting on behalf of her in the meantime deceased father, instituted proceedings in Strasbourg under article 8 ECHR, claiming violation of their right to reputation.

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European Court of Human Rights Goes With the Times: Mangouras v. Spain

Stijn Smet Mangouras v. Spain, Right to Liberty and Security

Earlier this week, the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Mangouras v. Spain. The case concerns the environmental disaster caused when the oil tanker Prestige sank in front of the Galician coast in 2002. Following the disaster, the Greek captain of the ship was detained in Spain. His bail was set at 3 million euros and he was only released after 83 days, when the ship owner’s insurers posted bail. The captain complained about what he considered to be an excessive bail and his case eventually reached Strasbourg, where the Chamber held that art. 5 of the ECHR had not been breached (see Mangouras v. Spain, 8 January 2009). The Grand Chamber has now endorsed that ruling, also finding that under the circumstances the setting of bail of 3 million euros was not exsessive.

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Expulsion or mustard grass, the message is the same: “Roma, you are not welcome”

Stijn Smet By Topic, Minority Rights, Roma Rights

We have all read about the utterly unacceptable treatment of Roma by Sarkozy’s government. And while France holds firm to its “return policy”, thankfully the EU has not turned a blind eye to this discriminatory practice, violating both the freedom of movement within the EU and the prohibition of collective expulsions. First, the European Parliament sent a clear message, issuing a resolution in which the French government was explicitly named and shamed. Now, after a revealed official document clearly demonstrates how the French government is targetting Roma specifically, the European Commission is also going on the offensive. Through the voice of its Commissioner for Justice, Fundamental Rights and Citizenship, the European Commission has said “enough is enough” and threatens France with the initiation of a so-called “fast-track” infringement procedure which could eventually lead to France being held in violation of EU law and fined by the European Court of Justice.

While the above case will be well known to all readers of this blog, other cases pass underneath the radar of the international media. The primary reason for this is that they are less directly shocking. Nonetheless, these ‘minor’ cases also reveal what can only be termed a poisonous attitude towards Roma. And that attitude sends a not to be misunderstood message: “you are not welcome here”. One such ‘minor’ case is currently taking place in Brussels.

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Practicing ill-treatment

Stijn Smet Davydov a.o. v. Ukraine, Prohibition of Torture

In Davydov and others v. Ukraine, the European Court of Human Rights was confronted with particularly disturbing facts. The case concerned ill-treatment committed by special forces on prisoners during training exercises. Not during an actual emergency situation of riot in the prison. No, during exercises. Twice.

The prisoners were not warned about the exercises. They were beaten, struck, hit, stepped upon, forced to strip naked and humiliated during the exercises. They did not receive any medical assistance for their injuries and their complaints were not taken seriously. Moreover, some of them were threatened to withdraw their complaints to the Court and were punished through solitary confinement for having submitted their application.

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Academic Freedom and the European Court of Human Rights

Stijn Smet Freedom of Expression, Sapan c. Turquie

In Sapan v. Turkey (8 June 2010) the European Court of Human Rights emphasised the importance of academic freedom of expression. The case concerned the publication of a book entitled “Tarkan – anatomy of a star” (Tarkan – yıldız olgusu), in which a doctoral thesis was reproduced in part. The first part of the book analysed the emergence of stardom as a phenomenon in Turkey and the second part focused on Tarkan, a well-known pop singer there. Upon a complaint of the singer, the Turkish courts ordered the seizure of the book.

Most importantly, in ruling that the seizure constituted a violation of article 10 ECHR, the Court relied among other things on the fact that the book partly reproduced a doctoral thesis. The Court emphasised the importance of academic freedom and held that, using scientific methods, the book addressed the social phenomenon of stardom. It could not be compared with the tabloid press, or gossip columns, whose role was generally to satisfy the curiosity of a certain type of reader about details of celebrities’ private lives.

At first I thought this was the first explicit recognition of the importance of academic freedom of expression by the Court.

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Gäfgen v. Germany: threat of torture to save a life?

Stijn Smet Gäfgen v. Germany, Prohibition of Torture, Right to a Fair Trial

In Gäfgen v. Germany , the Grand Chamber of the European Court of Human Rights was confronted with a difficult issue: can police officers threaten to torture a suspect if they believe this may save the life of an innocent child? The Court clearly answered that they cannot. However, it did leave what could at first sight be interpreted as an opening for such conduct: it held that the Convention had not been violated by the domestic decision declaring the evidence obtained as a result of the threat of torture admissible.

Gäfgen v. Germany concerned the following facts. A man had lured a child into his flat, killed him through suffocation and hidden the body. Afterwards he demanded a ransom of the parents who were unaware that their child had already been murdered. They paid the ransom after which the police followed and arrested the suspect. During his interrogation the police, acting under the assumption that the child was still alive, threatened the suspect with considerable suffering if he persisted in refusing to disclose the child’s whereabouts. The suspect subsequently confessed to the crime and disclosed the whereabouts of the child’s body. The German courts, having established that the confession of the suspect had been extracted under duress, did not allow it as evidence during the ensuing criminal trial. However, they did declare the evidence obtained as a result of the ill-treatment, including the child’s body and the tire tracks found at the dumping site, admissible. During the trial the suspect confessed again, despite having been made aware of his right to remain silent and of the inadmissibility of his earlier confession as evidence.

This case offers clear similarities to the ticking time bomb scenario that certain politicians, philosophers and lawyers use to claim that it is justified to torture one person, someone who is suspected of having planted a bomb somewhere, in order to save the lives of – possibly thousands of – others. This case also shows that too many factors of such a scenario are uncertain and that it can thus never take hold in reality.

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Church Sexual Abuse in Belgium: Respecting Privacy or Punishing Those Responsible?

Stijn Smet Children's Rights, Conflicting Rights, Right to Private Life

In a previous post, Alexandra wrote about sexual abuse by members of the Church and possibly relevant case-law of the European Court of Human Rights. I will follow up on that post in this one.

The past week, the Belgian authorities have upped the ante in the fight against sexual abuse by members of the Catholic Church. An investigative judge ordered house searches in several buildings, including a cathedral, belonging to the Church. During the searches, the police looked for evidence of knowledge of – and thus, attempts to hide – the sexual abuse by the Church. They also seized the 475 personal files of victims that had reported their abuse to the so-called Commission Adriaenssens. The Commission had been set up by the Church itself as an organ of independent experts that would examine the sexual abuse by members of the Church in Belgium. Following the search and the confiscation of the files, the Commission decided to disband since it felt it could no longer fulfil its task. The President of the Commission expressed outrage over what he called a violation of the victims’ privacy. Members of the Church, going as high up as the Vatican itself, expressed similar outrage over the searches. The Vatican described these as worse than the practices during the Communist regimes. But also the victims whose files had been confiscated did not go unheard. One victim filed a complaint with the investigative authorities, claiming to be disadvantaged by their actions, in order to get insight into the files and closer involvement in the procedures. Other victims have joined together to, now that the Commission Adriaenssens has disbanded, demand a Parliamentary investigation into the crimes of sexual abuse by Church members.

The various reactions reveal that the house searches, and especially the seizure of the personal files of the victims that had stepped forward, pose difficult issues. I would divide the complaints into two different categories. The complaints of the Church and the Vatican about the manner in which the searches were conducted constitute the first category. The complaints of the Commission and the victims about the violation of the victims’ privacy constitute the second. I will discuss these in turn.

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