Glaisen v. Switzerland : the Court still gives up on reasonable accommodation

By Morgane Ventura – PhD researcher at the Geneva University (UNIGE)

On 18 July 2019, the European Court of Human Rights published its inadmissibility decision in the case of Glaisen v. Switzerland, regarding the access of a disabled person to a cinema. Glaisen complained that the cinema company denied him the access to watch a movie that was projected in this one and only cinema in Geneva. Relying on its former case law the Court considers that access to a cinema is not a right and should not be imposed on private parties if there is not any domestic law forcing them to. Moreover, the Court relies on the Swiss authorities’ argumentation according to which the facts do not disclose any discrimination. In my opinion, the Court missed an opportunity to recognize a structural discrimination and to consolidate its case law about substantive equality by granting the right to have a reasonable accommodation. I first examine the decision of the Court and then link it to the notion of structural discrimination. I conclude my assessment with the notion of reasonable accommodation and its promises for the European human rights’ protection system, even though the Court misses a lot of opportunities to concretise it. Continue reading

A worrisome reasoning by the Strasbourg Court in a domestic violence case: Kurt v. Austria

By Zane Ratniece

On 4 July 2019, a Chamber of the European Court of Human Rights (‘Court’) delivered a judgment in Kurt v. Austria. The case concerned a disturbing situation of domestic violence, which escalated over time and ended with the killing of the applicant’s son by her violent husband. (para. 3) The Chamber found that the Austrian authorities had not breached their obligation under Article 2 (right to life) of the European Convention on Human Rights (‘Convention’) to protect the boy’s life from the criminal acts of his father. (para. 80)

This contribution opines that the reasoning by which the Chamber arrived at those conclusions is worrisome for its silence on the particular context of domestic violence and the vulnerability of the victims. Such approach does not sit well with more recent Court’s case-law which expressly acknowledges the particular context of domestic violence. Hence, Kurt risks questioning the progress made in the Court’s case-law and creating uncertainty as regards the standards to be followed in dealing with the widespread and complex phenomenon of domestic violence, requiring active State involvement. Continue reading

Brzeziński v. Poland: Fine over ‘false’ information during election campaign violated Article 10

By Ronan Ó Fathaigh

On 25 July 2019, the European Court of Human Rights delivered an important judgment in Brzeziński v. Poland, concerning a provision in Poland’s election law which allows a court, within 24 hours, to consider whether ‘untrue information’ has been published, and to issue an order prohibiting its further distribution. The European Court in Brzeziński unanimously held that a fine issued under the provision violated the right to freedom of expression, under Article 10 of the European Convention on Human Rights. Continue reading

Prohibiting Collective Expulsion in Melilla: What Should We Expect from the Upcoming Grand Chamber Decision?

Raoul Wieland studies law and social work at McGill University in Montreal, Canada. He is undertaking a work placement with Amnesty International’s Strategic Litigation Unit at the International Secretariat in London.

On 3 October 2017, the European Court of Human Rights released its judgment in the important case of N.D. and N.T. v Spain. Considering the upcoming Grand Chamber decision, it is worth re-visiting some of the important legal safeguards at issue in the Chamber judgment and as outlined by the third-party interventions brought by Amnesty International and colleagues and the Council of Europe Commissioner for Human Rights. Continue reading

Tasev v North- Macedonia: (blurry) dimensions and boundaries of the right to free self-identification

By Kristin Henrard, Professor of Fundamental Rights, Erasmus Law School, Rotterdam

On 16 May 2019 the European Court of Human Rights (ECtHR or the Court) delivered its judgement in Tasev v North Macedonia regarding the refusal of the authorities to change the ethnic affiliation of a judge in the electoral roll of judges.

The Court concludes to a violation of Article 8 ECHR because the interference would not have a basis in national law. There is indeed a problem with the foreseeability of the application of the invoked national law. However, the case particularly invites closer analysis of the right to free self-identification as protected by article 8 ECHR, more particularly the two dimensions of this right that can be distinguished (free self-identification pure, and free self-identification through the exercise of rights), their respective boundaries and the way in which these two dimensions interrelate.

It is argued that the Court fails to fully grasp the two dimensions of the right to free self-identification (and their interrelation), resulting in the mistaken identification of an interference with article 8 ECHR. Continue reading

A Bumpy Road to Strasbourg: Ups and Downs of the Ukrainian National Selection Process

By Dr. Kanstantsin Dzehtsiarou (University of Liverpool)

I have already written two blog posts on the issue of election of judges of the European Court of Human Rights in Ukraine here and here. To sum up, the election of the new Ukrainian judge meant to take place in December 2018, but the Ukrainian authorities have only opened the national completion in March 2019 which meant that the whole process is way behind the schedule. I was quite critical of the then proposed design of the competition as it did not comply with the recommendations of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe. Since then the Ukrainian authorities have completely reloaded this competition, changed the rules of the game and reached the pinnacle of the national selection – interviews of the candidates. Recent presidential elections and changes in personnel in presidential administration were perhaps the key reasons why the previous competition was stopped and a completely new procedure was designed. Apart from that, academic criticism and litigation initiated by leading Ukrainian lawyers helped to bury the old competition. The new procedure was promising but its practical application puts the legitimacy and fairness of the whole process in some doubt. Continue reading

Parental Child Abduction is back on the agenda of the European Court of Human Rights

Simona Florescu PhD fellow, Leiden Law School, the Child Law Department

Parental child abduction has been a frequent occurrence for the European Court of Human Rights with the case of O.C.I. and others v Romania being the latest in a series of more than 70 applications. The Court decided these cases in several formations, ranging from the Grand Chamber, to the Chamber and most recently to the Committee of three judges. These formations are indicative of the importance the Court attaches to the issues raised by parental child abduction cases. On the basis of O.C.I. and Others v Romania, we could thus infer that child abduction has become a matter of well-established case law which does not require a too detailed analysis.[1] This may well be the perspective of the ECtHR, however, child abduction is anything but well-established case law[2] and it is precisely in these cross border cases that the Court can and should make a significant contribution in standard setting.

It is for this reason that I have decided to write this blog post. I argue that the Court – and human rights practitioners in general – need to be alert of the difficulties that cross border cases raise for individuals. In these cases, domestic courts of one country are expected to defer the analysis of the merits of the case to the domestic courts of the other country. In the midst of such deferral, and because there is no supranational supervision (other than that of the ECtHR), there is a risk of lower or no protection for human rights. Therefore, dispensing with this case in a Committee of three judges does not do justice to the many complexities raised by child abduction cases. I argue that the case of O.C.I. and others v Romania is one example where, in my opinion, there is more at stake than what the Court makes of it. Continue reading