The Grand Chamber’s ruling in Khlaifia and Others v Italy: one step forward, one step back?

Guest post by Denise Venturi, PhD Student in International Law, Scuola Superiore Sant’Anna (Italy) and KU Leuven (Belgium)

On 15 December 2016 the Grand Chamber of the European Court of Human Rights (ECtHR) gave its much awaited ruling in the case Khlaifia and Others v Italy. The judgement follows a 2015 decision of the Second Section of the ECtHR that, in particular, found Italy – for the third time after Hirsi Jamaa and Others v Italy and Sharifi and Others v Italy and Greece – in breach of Article 4 of Protocol 4 to the European Convention on Human Rights (ECHR). The Chamber judgement was warmly welcomed by human rights advocators – and, besides, featured also in the Top Three of this blog’s poll for Best ECtHR Judgement for 2015 – as it upheld considerably the protection of migrants’ fundamental rights amidst the so called ‘refugee crisis’ in Europe.

It is questionable, however, whether the subsequent Grand Chamber’s ruling has been able to keep up the expectations raised by the first pronouncement of the Strasbourg Court. Due to the wealth of issues considered, it is not possible to conduct an in-depth examination of the Grand Chamber’s decision. Thus, this blog post is primarily aimed at providing only a concise analysis by focusing on the differences between the approach adopted by Strasbourg Court in the two judgements delivered in the Khalifia case.

Continue reading

Resuscitating Workplace Privacy? A Brief Account of the Grand Chamber Hearing in Bărbulescu v. Romania

Guest post by Gaurav Mukherjee[1] and James Wookey[2]

On 30 November 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) heard oral arguments in Bărbulescu v. Romania. The case was referred to the Grand Chamber on 6 June 2016, after a Chamber judgment delivered on 12 January 2016.  The applicant sent private communications on his workplace Yahoo Messenger account, which were monitored by his employer in accordance with company policy that no private communications were to be sent from workplace devices. The majority in the Chamber judgment held that this surveillance did not violate the applicant’s right to respect for private life under Article 8 ECHR, which immediately provoked critics to claim that privacy in the European workplace was officially dead.[3]

Continue reading

Magyar Helsinki Bizottság v Hungary: a (limited) right of access to information under article 10 ECHR

Guest post by M. Schaap-Rubio Imbers, PhD Candidate international public law, Erasmus School of Law  

On the 8th of November 2016, the ECtHR’s Grand Chamber delivered its judgment in Magyar Helsinki Bizottság v Hungary. The applicant NGO (Magyar Helsinki Bizottság) complained that the refusal of police departments to disclose information on the appointment of public defenders upon their request represented a breach of its rights as set out in article 10 ECHR. The Court held by fifteen votes to two that there has indeed been a violation of article 10. This judgment is the latest ruling on access to public interest information, and as such a very welcome elaboration of the Court’s position on the right of access to public interest information under article 10 ECHR.

Considering that others have already provided a good overview of the background and what is at stake in this judgement (here) and provided a general discussion of the case at hand (here), in this contribution I will focus particularly on the criteria established by the Court for access to public interest information under article 10 ECHR.

Continue reading

On a positive note: B.A.C. v. Greece

By Ellen Desmet, assistant professor of migration law at Ghent University.

On 13 October 2016, the European Court of Human Rights unanimously found in B.A.C. v. Greece that the Greek state’s omission to decide on an asylum application during more than twelve years violated Article 8 as well as Article 13 in conjunction with Article 8. The Court also considered that there would be a violation of Article 3 in conjunction with Article 13, if the applicant would be returned to Turkey without an assessment ex nunc by the Greek authorities of his personal situation.

This is the first time that the Court finds that an asylum seeker’s prolonged precarious and uncertain situation, due to an unjustified lack of action by the government as regards his asylum request, constitutes a violation of the right to respect for private life as guaranteed by Article 8 ECHR.

The judgment (only in French) has been discussed by Markos Karavias on EJIL: Talk!, and was mentioned by Benoit Dhondt on this blog in a comparative perspective, namely as a promising decision standing in contrast to the striking out of Khan v. Germany by the Grand Chamber. This post provides a complementary analysis of the Court’s considerations under Article 8 ECHR.

Continue reading

A Casualty of Formalism: The Application of the Six-Month Rule in Kamenica and Others v. Serbia

By Corina Heri, PhD candidate at the University of Zürich / Visiting Scholar at Ghent University

On 27 October 2016, the Court published the Third Section’s decision in Kamenica and Others v. Serbia. That case concerns the alleged ill-treatment of 67 persons who fled Bosnia and Herzegovina during the conflict that broke out there in 1992 and who were subsequently interned in a Serbian detention camp. The Third Section applied the six-month rule to the case, finding that it had been brought out of time. Its decision raises questions about the strictness of the six-month rule and the application of a statute of limitations to grievous alleged violations of Article 3 ECHR. Granted, the application of a rigid time limit for bringing applications to Strasbourg fosters certainty and ensures that the proceedings before the Court take place within a useful time frame. However, decisions such as this one indicate that, in certain types of cases – here, a particularly grievous one that stood to be investigated in a post-conflict scenario – the Court’s emphasis of a strict time limit can seem decidedly formalistic.

Continue reading

Khan v. Germany, Episode II: The Empire strikes out

Guest post by Benoit Dhondt, Belgian lawyer specialized in migration and refugee law. As a teaching assistant, he is also connected to the Human Rights Centre of Ghent University, more specifically its Human Rights and Migration Law Clinic.

Several practitioners were disappointed with the road the ECtHR traveled in Khan v. Germany last year. With the Grand Chamber referral, hope rose for a more sensible approach and greater protection standards for mentally ill migrants on the verge of expulsion. Alas, the Grand Chamber has struck out the case, leaving us with more questions than answers. In what follows I will give a brief description of the case after which I will delve a little bit deeper into some of the issues the decision to strike out has left untouched.

Continue reading

The potential of a vulnerability-based approach: some additional reflections following O.M. v Hungary

Guest post by Denise Venturi, PhD Student in International Law, Scuola Superiore Sant’Anna (Italy) and KU Leuven (Belgium)

As has recently been noted in this blog, the case of O.M. v Hungary adds another tile to the European Court of Human Rights’ (ECtHR) mosaic on vulnerability. The present blog post seeks to start from these premises and dig further into the Court’s reasoning, to reflect on the extent to which vulnerability can be operationalised and meaningfully used in the legal reasoning and when, instead, it risks to remain confined only to a synonym for specific situations deserving attention.

As the readers of this blog may know, O.M. v Hungary concerned the detention to which a gay asylum seeker from Iran was subject while his asylum request was processed and before being granted refugee status. The detention was ordered because, allegedly, Mr. O.M. had not been able to clarify his identity and nationality; had entered irregularly; had not had any resources to live on in Hungary and there was a risk he could frustrate the procedure if left at large. The applicant claimed before the ECtHR that his detention had been unjustified with respect to Article 5(1)(b) of the European Convention on Human Rights (ECHR) and that no individual assessment had been carried out. Notably, the applicant’s sexual orientation had not been taken into consideration, although Mr. O.M. reported to fear harassment in detention because of this circumstance.

Continue reading