Author: Stijn Smet

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.