Too little, too late? The ECtHR’s pilot judgment on the Belgian internment policy

Guest post by Els Schipaanboord, LL.M. – PhD Researcher at the Institute for International Research on Criminal Policy, Ghent University

On 6 September 2016, the European Court of Human Rights condemned Belgium once more, after 22 previous convictions, for its internment policy. This safety measure, under the Belgian law referred to as ‘internering’, aims to protect the society against ‘dangerous’ mentally ill offenders who cannot be held accountable for the offence they have committed, due to their illness. This time, however, the verdict granted Belgium the questionable honor of a pilot judgement. Applying the ‘pilot procedure’, the Court classifies Belgium’s internment policy as systematically and structurally dysfunctional and imposes an obligation upon it to address these problems within a limited amount of time. The Court gave Belgium a deadline of two years.

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Crossing the Very Fine Line between Justice and Vengeance: Massive Purges in the Aftermath of the Attempted Coup in Turkey

Guest post by Duygu Çiçek – LL.M. in Human Rights from the University of Edinburgh (2015-2016)

Turkey’s recent attempted coup of the 15th of July exposed various discussions and conspiracy theories about the reasons behind the coup as well as future concerns regarding political dynamics at the domestic and international level. This contribution, however, will specifically focus on the massive purges occurring in the aftermath of the failed coup and the human rights implications of these violations within the ambit of the European Court of Human Rights’ jurisprudence, with a specific focus on the example of lustration.

Turkey’s current de-Gülenization movement has employed harsh measures, including torture and ill treatment of detainees, arbitrary detention of people in the absence of due process, as well as the screening, suspension, and dismissal of tens of thousands of teachers, public employees, judges, prosecutors, academics, and journalists accused of aligning themselves with the Gülen movement. The recent Decree-Law no. 672 enacted under the state of emergency does not only regulate the dismissal of public officials who are related to FETÖ (“Fethullah Gülen Terror Organization”, accused of creating a parallel state and organizing the coup attempt), but also bans them from working in the public field in the future, aiming to sweep out the influence of this movement from state institutions as well as the private sector. All these measures violate the European Convention on Human Rights (“the ECHR” or “the Convention”) and go beyond what can be justified even under the state of emergency invoked by the Turkish government.

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ECJ headscarf series (4): The dark side of neutrality

By Emmanuelle Bribosia[1] and Isabelle Rorive[2], Université libre de Bruxelles

The Achbita and the Bougnaoui cases give a first opportunity to the European Court of Justice to address religious discrimination. Since the adoption of the anti-discrimination directives after the Amsterdam treaty, the Court ruled on a significant number of cases, mostly on discrimination based on age or gender, but also on sexual orientation, disability, race and ethnicity. Religion was not in the picture so far. As if national courts kept the issue for themselves, apart for a few cases making their way to the European Court of Human Rights.

A first opportunity that resembles a poisoned gift. Two high-profile cases, brought by the Supreme Courts of the judiciary (Cour de cassation) in Belgium and in France, which fall in ‘the Islamic veil conundrum’ that started in the late 1980s in both countries. Two countries where the principle of neutrality (or laïcité) is increasingly brandished like a flag with uncertain colours by strange bedfellows and not only as a key organizing principle of a democratic State attached to the Rule of law. Two countries severely hit by terrorist attacks made in the name of Islam and where social and political tensions are sour. And two Advocates General who have different views on some fundamental legal concepts of anti-discrimination law.

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ECJ headscarf series (3): The Everyday Troubles of Pluralism

By Matthias Mahlmann, University of Zürich

Differences and Common Ground

This is legal deliberation with an edge: the two Opinions of Advocate General Kokott in the case of Achbita (C-157/15) and of Advocate General Sharpston in the case of Bougnaoui (C-188/15) come to opposing results though dealing with cases that are, in many respects, very similar.

Whereas Advocate General Kokott regards a company rule that prohibits the wearing of any religious symbol or a symbol associated with some form of belief as a genuine determining occupational requirement that serves a legitimate aim and is proportionate, Advocate General Sharpston argues that there is no such justification.

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ECJ headscarf series (2): the role of choice; and the margin of appreciation

By Lucy Vickers, Oxford Brookes University

In this post, I focus on two issues of note regarding the divergent reasoning of the Advocates General. The first is the question of whether or not religion is immutable, and whether the answer to that question is helpful in determining the extent to which religion should be protected at work. The second is the use of ‘margin of appreciation’ reasoning, drawn from human rights case law on freedom of religion and belief, in the context of CJEU equality law.

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Al-Dulimi and Montana Management Inc. v. Switzerland: Norm conflict between UNSC Resolution and ECHR?

Guest post by Cedric De Koker, Phd Researcher, IRCP, Ghent University.

On 21 June 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) rendered its judgment in the case of Al-Dulimi and Montana Management Inc. v. Switzerland (no. 5809/08). At issue was a potential norm conflict between the obligations stemming from a United Nations Security Council (UNSC) Resolution and the protections offered by the European Convention on Human Rights (ECHR), a recurrent theme in the Strasbourg jurisprudence (see amongst others the Al Jedda and Nada-judgments).

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G.J. v. Spain and Access to Justice for Victims of Human Trafficking

Guest post by Ruth M. Mestre i Mestre, Human Rights Institute, University of Valencia.

The G.J. v. Spain Decision (App. no. 59172/12) shows many of the problems victims of human trafficking encounter to access justice. It is, sadly, one of those cases where formalities swallow justice, since the outcome could have been totally different had the Court considered that the circumstances of the case required examination, in spite of, or precisely because of the failure to comply with the “written authority” requirement of submission (Rule 36.1 and 47(5)(1)(c) of the Rules of Court).

The challenges posed to the Court were interesting from the perspective of analysing the gender aspects of human trafficking and specially for determining whether the procedures for the identification of victims of trafficking that subordinate their protection to cooperation in criminal procedures against traffickers are compatible with the positive obligations arising from article 4 ECHR. The inadmissibility of the application leaves these questions unanswered. My comments will briefly engage with two sets of issues, the missed opportunity with regards to trafficking, and its connection to the substantive inadmissibility decision of the Court.

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