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

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

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”?

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

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

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

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)

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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