Medical “normalisation” of intersex persons: third-party intervention to the ECtHR in the case of M. v. France

By Charly Derave, PhD Researcher at the Perelman Centre for legal philosophy (ULB), and Hania Ouhnaoui, coordinator of the Equality Law Clinic (ULB).

On 24 February 2021, the Equality Law Clinic (ELC) of the Université Libre de Bruxelles[1] and the Human Rights Centre (HRC) of Ghent University[2] submitted a third-party intervention to the European Court of Human Rights in the case M. v. France. This case is the first opportunity for the Court to rule on “normalising” medical treatments of intersex persons, i.e. those who are born with sex characteristics that do not conform to the (medical) definition of the male and female sex.  They represent between 1% and 2% of the population. It is because of the “variations”[3] in their sex characteristics that, even though they are healthy, these persons often undergo enforced corrective surgeries and hormonal treatments to “normalise” their bodies and to anchor them in the binarity of sex and gender.

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Another step enhancing the (procedural) protection for judges: Eminağaoğlu v Turkey and Bilgen v Turkey

Mathieu Leloup, PhD researcher in constitutional and administrative law at the University of Antwerp, Belgium, research group Government and Law

The protection of domestic judges has become something of a leitmotif in the European case law over the last few years. Hardly a month goes by without a judgment in which the ECtHR or the ECJ was asked to rule on something that pertained to the safeguarding of the domestic judiciary. Most often, the issue in question relates to the broader principle of judicial independence – ranging from appointment of judges, over judicial discipline, to judicial tenure. But it may just as well address more factual issues, like the detention of judges (for example, in Baş). In other cases still, the question is not so much a substantive issue, but rather relates to the procedural protection that judges may enjoy.

The cases that will be discussed here fall within the latter category. In two cases against Turkey, Eminağaoğlu and Bilgen, the Strasbourg Court has adopted a very flexible interpretation of the so-called Eskelinen-criteria and has expanded the right of access to a court that domestic judges enjoy under Article 6(1) ECHR. In doing so, this judgment can be seen as marking another step in an evolution that has been going on for a little bit over a decade now.

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Pişkin v. Turkey: Observations on the failure of the Lawfulness Test and the Engel Criteria within the context of the Turkish Purge

By Hakan Kaplankaya, former Turkish diplomat, jurist, INSTITUDE member

On 15 December 2020, the European Court of Human Rights (ECtHR/the Court) delivered its first judgment regarding the purge of a public employee as per the first of the notorious emergency legislative decrees adopted by the Turkish government in the aftermath of the controversial coup attempt staged on July 15, 2016. The government had blamed the Gülen Movement for orchestrating the coup attempt and enacted various emergency measures with no regard for constitutional and statutory imperatives, including the dismissal of 130 thousand public servants. However, the purge was not limited to Gülenists, but also affected other ‘disloyal’ public servants such as academicians who signed a petition asking for peace for the Kurdish problem. The dismissed officials were also subjected to other punitive measures including the cancellation of their passports, a ban on performing certain professions besides the life-long prohibition of public service, as well as other administrative practices preventing them from finding jobs in the private sector, which – all combined – could be argued to amount to a civil death.

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Jurčić v. Croatia: clarity on protecting women undergoing IVF treatment from discrimination

By Jonas Deweer-Vanmeerhaeghe, lawyer at the Belgian federal Institute for the Equality of Women and Men, where he specializes in insurance discrimination and the protection of the rights of transgender and intersex persons. Jonas is a founding member of GenderSpectrum, a non-profit advocating on behalf of gender diverse persons, and he also volunteers for UTSOPI, the Belgian Sex Workers Union.

Disclaimer: The opinions expressed here are those of the author and do not necessarily reflect the official position of any organisation.

Introduction

In the case of Jurčić v. Croatia (application no. 54711/15), on the 4th of February 2021, the first section of the European Court of Human Rights (ECtHR) rendered a compelling verdict on a question of discrimination on the grounds of sex and pregnancy with regards to publicly mandated health insurance. The Court agreed with Ms. Jurčić (hereinafter ‘the applicant’) when she claimed to have been discriminated against by several national authorities and courts. These institutions, despite several appeals by the applicant, upheld the notion that her employment had been fictitious since she had been in treatment for in vitro fertilization when accepting a position with a Croatian company. They claimed that her sole motivation for accepting the position was to obtain the pecuniary advantages related to the status of working persons during her pregnancy.

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Yes, Prime Minister (bis): prosecution for satirical collage criticising Turkish prime minister’s foreign policy violated artist’s freedom of expression

Ronan Ó Fathaigh and Dirk Voorhoof

On 2 February 2021, the European Court of Human Rights (ECtHR) unanimously found that the criminal proceedings against an artist’s satirical collage ‘insulting’ the Turkish Prime Minister violated his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). In an earlier case (Tuşalp v. Turkey) about press articles criticising the then Prime Minister, Mr. Recep Tayyip Erdoğan, the ECtHR also concluded that the Turkish authorities had disproportionately interfered with freedom of political expression, by overprotecting the reputation of the Prime Minister (see our blog entitled ‘Yes Prime Minister!’ here). In its latest judgment in Dickinson v. Turkey the ECtHR confirms that a politician must show a greater tolerance towards criticism, especially when the expression takes the form of satire. Most importantly, the ECtHR found that Article 10 was violated, even where the applicant has ‘only’ been criminally prosecuted, without any sanction being imposed. The ECtHR considers that being prosecuted for insult of a political leader, with a risk of being imprisoned, has a chilling effect on the right to freedom of expression.

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Prosecutors Behaving Badly: Revisiting the Operational Duty to Protect Trafficked Persons in V.C.L. and A.N. v. the United Kingdom

By John Trajer, PhD Researcher in Law at the European University Institute

Introduction

In V.C.L. and A.N. v. the United Kingdom, delivered on 16 February 2021, the European Court of Human Rights (‘the Court’ or ‘the ECtHR’) was called upon to consider whether the prosecution of potential victims of trafficking could engage state responsibility under the European Convention on Human Rights (ECHR). While it has been recognised that victims should not be held liable for unlawful acts committed as a direct consequence of their trafficking (see the paper on ‘non-punishment’ by the former UN Special Rapporteur on trafficking in persons), this was the first time that an international court had pronounced on this issue.

The result is a judgment which contributes in a significant way to the Court’s existing jurisprudence on positive obligations under Article 4 ECHR (prohibition of slavery and forced labour). Paying attention to the special situation of minors throughout, the judgment introduces important safeguards to ensure that victims of trafficking suspected of committing criminal offences are not unduly deprived of the right to be identified and protected. The ruling also recognises for the first time that a failure to adequately investigate the status of possible victims of trafficking can undermine the right to a fair trial under Article 6(1) ECHR.

Following a summary of the background facts, this post describes the key points addressed in the Court’s assessment. It concludes with a reflection on the judgment’s contribution to the Court’s growing jurisprudence on human trafficking.

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Kargakis v. Greece: Protection in Substance for Detainees with Disabilities but a Web of Missed Opportunities

By Andrea Broderick (Assistant Professor of International and European Law, Maastricht University, The Netherlands) and Delia Ferri (Professor of Law, Maynooth University, Ireland)

Delia Ferri and Andrea Broderick have collaborated on several recent publications, including the first textbook on International and European Disability Law and Policy: Texts, Cases and Materials (Cambridge University Press, 2019), and the first Research Handbook on EU Disability Law (Edward Elgar Publishing, 2020).

On 14 January 2021, the ECtHR released its ruling in the case of Kargakis v. Greece (press release available in English). The case centres on the conditions of pre-trial detention of Mr. Kleanthis Kargakis in Diavata Prison, the lack of an effective remedy to complain about those conditions and the length of judicial review proceedings. Taking into account the fact that Mr. Kargakis is a person with disabilities and having regard to the duration of his imprisonment, the Strasbourg Court held that the conditions in which he was detained amounted to a violation of Article 3 ECHR, containing the prohibition of inhuman and degrading treatment. The Court also found that Greece breached Article 13 ECHR, which enshrines the right to an effective remedy, on account of the fact that the domestic court did not adequately examine the conditions of detention and health issues experienced by the applicant.

The ruling in Kargakis v. Greece is noteworthy due to the Court’s finding that the pre-trial detention conditions in Diavata Prison exceeded the threshold of suffering inherent to the deprivation of liberty because the prison facilities were not adapted to the needs of people with disabilities. While the Strasbourg Judges did not explicitly discuss Greece’s international law obligations to provide generalised accessibility measures and individualised reasonable accommodation, the ECtHR acknowledged the rights of detainees with disabilities to an accessible place of detention. In that sense, the decision fits neatly into a long line of previous cases, such as Price v. UK, Z.H. v. Hungary and Grimailovs v. Latvia, in which the Court has recognised the general duty of Contracting Parties to the ECHR to provide accessible prison settings, alongside the obligation to take all ‘reasonable steps’ to address the individual needs of detainees with a disability. Unfortunately, the Court did not refer to, or incorporate into its reasoning in Kargakis v. Greece, the UN Convention on the Rights of Persons with Disabilities (CRPD). In that regard, the decision constitutes a missed opportunity to foster convergence between the ECHR and the CRPD.

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In the Aftermath of a Judgment: Why Human Rights Organisations Should Harness the Potential of Rule 9

Dr. Aysel Küçüksu, Postdoctoral Fellow, iCourts, University of Copenhagen[1]

Introduction

NGOs and NHRIs – collectively referred to as human rights organisations (HROs) – have long enjoyed a certain celebrity for impactful litigation at the European Court of Human Rights (ECtHR), but what do they do once the desired judgment has been handed down? Do they disperse or do they follow up, and if the latter, what does their follow-up look like? These and similar questions demarcate the largely uncharted territory that is HRO participation in the ECtHR execution process. As elusive as their responses might appear, the data to formulate them is all there, publicly available and easily accessible on the Court’s HUDOC-EXEC website in the form of Rule 9 communications. Yet, despite their power to improve our understanding of human rights’ judgments implementation, those communications have largely escaped scholarly attention. This can be attributed to the fact that, until recently, focus on HRO mobilisation within the ECtHR context has concentrated on the period preceding the delivery of a judgment. Though this trend is slowly changing, and studies of HRO participation in ECtHR post-judgment universe are steadily multiplying, attention to the Rule 9 procedure remains scarce.

This has left a huge gap in the scholarship on the invaluable monitoring role NGOs and NHRIs have been afforded with since the introduction of Rule 9 to the Rules of the Committee of Ministers (CM) in 2006. In an effort to address the gap, this entry will focus on explaining the Rule 9 procedure and increase both knowledge of, and recourse to it. Governing the involvement of NGOs in the execution phase of ECtHR judgments, the Rule 9 procedure has done wonders to diversify and democratize access to the accountability mechanisms offered by the ECtHR and Council of Europe (CoE) more generally, and created an unprecedented feedback mechanism that allows the CM, as the relevant supervisory body, to receive valuable, contextualized assessments of the execution process from HROs. Despite that, recourse to the procedure remains low, with studies showing that limited HRO engagement with the implementation process is partly due to lack of awareness as to how to do so. The aim of this post is help address this issue by spreading awareness of this formal avenue. In this way, every HRO which has a stake in the implementation of a particular ECtHR judgment would have the tools to harness its potential. In a time when 43% of all the leading cases delivered by the Court are still pending implementation, Rule 9 communications can help achieve full compliance by engaging domestic actors with an insider understanding of what home-grown remedies need to look like in order to work.

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The right to privacy used as a modern pillory in L.B. v. Hungary

By Liesa Keunen, PhD researcher at Ghent and Antwerp University, Belgium. Liesa Keunen is working on the research project ‘Tax audits on big data: exploring the legitimacy and limits in light of the prohibition of fishing expeditions’ (Ghent & Antwerp University, FWO). She is also a member of the research group Law & Technology, the Human Rights Centre and PIXLES (Privacy, Information Exchange, Law Enforcement and Surveillance), all established at the Faculty of Law and Criminology at Ghent University. At the University of Antwerp, she is a member of DigiTax (Centre of Excellence that researches the challenges and opportunities of digitalisation for taxation).

The fourth section of the European Court of Human Rights (ECtHR) delivered a remarkable judgment in the case of L.B. v. Hungary (application no. 36345/16) on January 12, 2021. The publication of taxpayers’ personal data on the tax authority’s website for failing to fulfil their tax obligations constitutes no violation of the right to private life as established under Article 8 of the European Convention on Human Rights (ECHR). In this case, the personal data published included the applicant’s name, home address, tax identification number, and the amount of unpaid tax he owed. The ECtHR clearly prioritises the Hungarian legislature’s choice to make the identity of persons who fail to respect their tax obligations publicly available in order to improve payment discipline and protect the business interests of third parties over the data subject’s right to privacy.

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X and Y v. Romania: the ‘impossible dilemma’ reasoning applied to gender affirming surgery as a requirement for gender recognition

By Sarah Schoentjes, PhD Researcher at the Human Rights Centre of Ghent University, and Dr. Pieter Cannoot, Postdoctoral Researcher at the Human Rights Centre of Ghent University and Visiting Professor at the University of Antwerp

In the case of X and Y v. Romania, the ECtHR has declared one more abusive requirement for gender recognition to be a violation of article 8 of the Convention. Almost two years after X v. FYROM, in a case with a similar fact pattern, the Court finally declared that requiring trans persons to undergo gender affirming surgery before they could obtain legal gender recognition violates their human rights. Though the judgment is not without flaws – notably, the Court’s now steadfast refusal to examine gender recognition cases under art. 14, – X and Y v. Romania is a momentous development in the Court’s case law, guaranteeing trans people an extra level of much-needed protection, recognition and autonomy.

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They did it again: Russia’s continued presence in the PACE

By Lize R. Glas, Assistant Professor of European Law, Radboud University, the Netherlands

In a previous blog, I recalled how the Russian delegation managed to return to the Parliamentary Assembly of the Council of Europe (Assembly) without sanctions in June 2019. The return of these members meant the end of their refusal to submit their credentials in the years 2016-2019. That refusal, in turn, had been a reaction to the Assembly’s April 2014 decision to suspend the Russian members’ voting (and some other) rights because of, inter alia, Russia’s annexation of Crimea.

When ratifying the credentials of the Russian delegation in June 2019, the Assembly called on Russia to do a number of things, including fulfilling previous Assembly resolutions, returning 24 illegally captured sailors to Ukraine, paying all fees due to the Council of Europe, protecting LGBTQI+ people, and cooperating in the investigation of the downing of the MH17 flight and the murder of politician Boris Nemtsov. The delegation was requested to cooperate with the Assembly’s committees and engage in a meaningful dialogue. The Assembly expected that this dialogue would lead to concrete results, and invited its Monitoring Committee to report on the honouring of obligations by Russia no later than April 2020.

During the 2021 winter plenary session of the Assembly, which took place from 25 to 28 January, the credentials of the Russian delegation were challenged (again). In this blog, I will explain how the relation between the Assembly and Russia has developed since June 2019, discuss the 2021 winter plenary session, and comment on what these events tell us about the Assembly’s approach towards Russia and the steps that its representatives are prepared to take against that state and its delegation.

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The Case of Gestur Jónsson and Ragnar Halldór Hall v Iceland: Between Two Paradigms of Punishment

By Agnė Andrijauskaitė, LL.M (PhD Researcher at German University of Administrative Sciences Speyer and Vilnius University)

The year of 2020 ended with an epic battle over admissibility taking place in Strasbourg. More precisely, the Grand Chamber of the European Court of Human Rights (ECtHR) has passed a judgment in the case of Gestur Jónsson and Ragnar Halldór Hall v Iceland concerning fines imposed on two Icelandic lawyers for displaying contempt of court. This case – yet again – has raised a question on which fines should fall within the criminal scope of Articles 6 and 7 ECHR. Put otherwise, the ECtHR has had the opportunity to refine the scope of the so-called Engel criteria anew. These criteria were developed as early as the ‘70s in order to combat the ‘mislabelling’ tendencies and allow the ECtHR to afford the protection of the Convention to sanctions of punitive and deterrent nature – regardless of their domestic classification – autonomously. Such protection, however, was not warranted in this particular case because the impugned fines enabling a court to sanction the applicants for their contempt of court were deemed ‘more akin to the exercise of disciplinary powers’ as contrasted with the ‘classical’ criminal measures. This contribution shall seek to decipher the rationale behind these measures and whether such a stance does not overly dilute individual rights. It will argue that the current judgment is a consistent logical extension of previous teachings of the ECtHR, in which fines devised to ensure orderly administration of justice found no place under the criminal limb of Article 6 ECHR. In fact, there are valid reasons as to why they should not be ‘upgraded’ to criminal measures under the ECHR and be rather accepted as ‘sui generis’.

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Georgia v. Russia (II): zooming in on conflict displacement

Deborah Casalin is a PhD researcher in the Law and Development Research Group at the University of Antwerp Law Faculty. Her research focuses on the role of international and regional human rights mechanisms in ensuring reparation for arbitrary displacement. 

Introduction

The European Court of Human Rights’ Georgia v. Russia (II) judgment – the first inter-State merits judgment in twenty years to address a situation of armed conflict between parties to the European Convention on Human Rights – has already given rise to highly critical legal discussions, including an extensive contribution by Jessica Gavron & Philip Leach here on Strasbourg Observers. The main focus so far has rightly fallen on the Court’s U-turn on extra-territorial jurisdiction and its effective banishment of active hostilities to a legal no-man’s-land. The aim of this post is not to revisit these debates, but to delve further into the judgment and zoom in on the aspects of the case relating to displaced people. Around 300 000 people are currently internally displaced in Georgia – some have not been able to return to South Ossetia or Abkhazia since the 2008 conflict, while others still have not found a durable solution in over three decades since previous conflicts in those regions. Considering the ongoing and serious consequences of conflict-related displacement in Georgia, as well as in other countries within and beyond the Council of Europe, the Court’s position on the issue has potentially broad resonance and so merits further analysis. 

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Trivkanović v. Croatia: About rigidity, reopening and proof of forced disappearances

By Lize R. Glas, Assistant Professor of European law, Radboud University, the Netherlands. 

Introduction

The judgment in the case of Trivkanović v. Croatia (no. 2) (21 January 2021, nr. 54916/16) provides a good illustration of the European Court of Human Rights’ (ECtHR; Court) at times flexible approach towards the rules that it has created in its judgments. In the instant case, the Court presents itself as flexible when it comes to the applicability of Article 6(1) ECHR to judicial reopening proceedings and when it comes to evaluating the standard of proof imposed on the applicant by domestic judges in light of the same provision. By taking a flexible approach, the Court helps to ensure that the European Convention of Human Rights (ECHR; Convention) rights are not ‘theoretical or illusory’, but ‘practical and effective’ (see for example Salduz v. Turkey, § 51). In this blog post, I will take a closer look at the two instances of the Court’s flexible approach and at the Court’s rationales for making the exceptions. It is particularly noteworthy that the Court expects the Croatian judges to apply Article 2 ECHR case-law about state liability in case of a forced disappearance in domestic civil compensation proceedings. 

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Is begging speech? Assessing Judge Keller’s concurring opinion in Lăcătuş v. Switzerland

By Dr Dimitrios Kagiaros, Assistant Professor in Public Law and Human Rights, University of Durham

In its judgment in Lăcătuş v. Switzerland, the European Court of Human Rights (‘the Court’) held that fining and imprisoning the applicant for begging amounted to a violation of Article 8 of the Convention. While the judgment raises many important issues that have been expertly covered on this blog (here), the focus of this post is on Judge Keller’s concurring opinion. In this separate opinion, Judge Keller takes issue with the majority’s refusal to examine whether begging engages Article 10 ECHR. She ultimately concludes that begging constitutes a form of communication that amounts to speech for the purposes of the Convention. The crux of Judge Keller’s argument is that begging can be likened to a distress call through which the purported speaker communicates her destitution to others in order to seek assistance. Therefore, Judge Keller views begging as an invitation to social interaction between the impoverished person and those she approaches for help. In support of this view, Judge Keller also points to developments in ECHR Member States that link begging to Article 10.

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Damage control after Georgia v Russia (II) – holding states responsible for human rights violations during armed conflict

By Jessica Gavron and Philip Leach, European Human Rights Advocacy Centre, London

Introduction

The European Court of Human Rights’ recent Grand Chamber judgment in the case of Georgia v Russia (II) has already been the subject of strong criticism, both from within the Human Rights Building and outside. For Judge Pinto de Albuquerque, the judgment represented a ‘pernicious progeny of Banković’. Judges Yudkivska, Wojtyczek and Chanturia aver that the majority have confirmed the Latin maxim silent enim leges inter arma (in times of war law falls silent). For Marko Milanovic, the decision is ‘exemplary only in its arbitrariness’. Helen Duffy points to the ‘potentially insidious policy implications’ of the judgment. Commenting on the Court’s deference to international humanitarian law (IHL), Isabella Risini notes that ‘judicial mechanisms for the enforcement of IHL are largely inexistent’. Kanstantsin Dzehtsiarou suggests that ‘the Court is ready to give up on massive human rights violations because they are too difficult to deal with.’

Although there is so much in this judgment to be dissected, this post focuses on the single, critical question of how to determine jurisdiction in respect of extra-territorial armed conflict. We revisit and discuss relevant international jurisprudence, but in the limited space available, we do not of course claim to be comprehensive.

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A Judgment to Be Reckoned with: Demirtaş v. Turkey (no. 2) [GC] and the ECtHR’s Stand Against Autocratic Legalism

By Ezgi Yildiz, Project Lead and Postdoctoral Researcher at the Global Governance Centre, the Graduate Institute, Geneva

The recent Demirtaş v. Turkey (no. 2) [GC] judgment (application no. 14305/17) stands out not only for its substance but also its tone. The judgment provides an unequivocal solution to the protracted political crisis in Turkey concerning the fate of Selahattin Demirtaş and other opposition politicians and dissidents in general. It highlights the ulterior political purposes behind Demirtaş’s deprivation of liberty and therefore orders his immediate release. It, thus, sends a strong and an unambiguous message to the Turkish government to grant freedoms that political dissidents should normally enjoy in a democratic society run by rule of law. But, beyond this crucial point, the judgment also demonstrates the true potential of the Court to challenge the use of domestic laws and institutions to silence opposition and suffocate pluralism – an “autocratic legalism” practice that is also widely used in other autocratic or autocratic-leaning countries in Europe. For these reasons alone – albeit not the only reasons – this an important and much-needed ruling.

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On the Value of Interim Measures by the ECtHR on Inter-Sate Disputes

By Dr Vassilis P. Tzevelekos, Senior lecturer in Law, University of Liverpool School of Law and Social Justice; Editor-in-chief of the European Convention on Human Rights Law Review

Nikos Kazantzakis’ wrote in The Saviors of God: Spiritual Exercises: ‘Love responsibility. Say: It is my duty, and mine alone, to save the earth. If it is not saved, then I alone am to blame.’ (transl. K. Friar). The ECtHR’s responsibility is not to save the earth, but to safeguard fundamental human rights. This note discusses one aspect of this mission, namely the responsibility of the ECtHR to grant (provisional) protection in inter-state disputes, in particular when protection is urgently needed because of an armed conflict.

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X and Y v North Macedonia: A missed opportunity to improve the case law on anti-Roma custodial violence

By Emma Várnagy (Teaching Assistant at the Faculty of Law, Safety and Governance, The Hague University of Applied Sciences)

The case of X and Y v North Macedonia (Application no. 173/17) concerns the beating of two Roma youths by the police and the subsequent inaction concerning the investigation of their ill-treatment. In fact, it has a strikingly similar fact pattern to a number of cases throughout the last two decades, such as Assenov and Others v Bulgaria (1998); Bekos and Koutropoulos v Greece (2005); Stefanou v Greece (2010); or A.P. v Slovakia (2020). These cases all concern the apprehension of Roma minors for suspected theft and their ill-treatment in police custody. The novelty of X and Y is that it is the first time the discrimination claim was also raised under Article 1 of Protocol No. 12, thereby offering an opportunity that the Court could have taken to formulate its approach to racist violence at the hands of public authorities.

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Usmanov v. Russia: a confusing turn in the right direction?

By Louise Reyntjens (Leuven Centre for Public Law, KULeuven)

On the 22nd of December 2020, the Strasbourg Court delivered its latest judgment in its case law on citizenship deprivation, a sensitive issue the Court is increasingly confronted with. Ever since the “European war on terror” has been declared, governments have rediscovered citizenship deprivation as a counterterrorism measure; a most cunning tool to shape national societies and exclude the “unwanted”, i.e. (convicted/suspected) terrorists. Over the past couple of years, those cases have started to find their way to the Strasbourg Court, with many fundamental rights questions surrounding them. Most of the judgments delivered on this particular issue were rather disappointing and failed to offer much protection to the individual(s) involved. The judgment of Usmanov v. Russia on the other hand, is indicative of a careful turnaround in this regard. It does however also cause some confusion in how the Court handles cases of deprivation, warranting further clarification (perhaps ideally by the Grand Chamber?).

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A misconceived balance by the domestic courts in Dupate v. Latvia

By Evangellos Orestis Vouvonikos (Phd in Public Law, University of Athens, Attorney in Law)

Introduction

On the 19th November 2020, the European Court of Human Rights (ECtHR) delivered its judgment in Dupate v. Latvia (application no. 18068/11). In this case, the ECtHR dealt with an alleged violation of respect of the applicant’s private life (Article 8 of European Convention on Human Rights (ECHR)). The appeal was based on the publication of an article in a popular magazine, in which the applicant was photographed without her consent, while exiting a maternity clinic, after giving birth to her second child. Unlike the Latvian courts, the ECtHR assessed that there had been a violation of Article 8 ECHR. According to the Court, the Latvian authorities had not satisfactorily balanced the freedom of press against the protection of private life.  

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B. and C. v Switzerland: between concealment of sexual orientation and risk assessment in Article 3 cases

Blog post by Riccardo Viviani, LL.M., and Denise Venturi, Ph.D. Candidate in Law, KU Leuven, Research Unit Public Law*

On 17 November 2020, the European Court of Human Rights (ECtHR) delivered its judgment in B. and C. v Switzerland. The case concerned the risk of deportation and ill-treatment upon return to the Gambia of a homosexual applicant**, whose request for family reunification with his partner, a Swiss national, had been rejected. The Court unanimously found a violation of Article 3 of the Convention, following the inadequate evaluation of the risk of inhuman and degrading treatment and of relevant availability of State protection in the Gambia.

For the first time, in a non-refoulement case concerning a risk of ill-treatment for reasons of sexual orientation, the Court clarified that the lack of an adequate risk assessment by domestic authorities would breach Article 3. So far, similar cases have been either struck out or have been declared inadmissible by Strasbourg judges.

This contribution will offer a brief analysis of the present judgment and will situate it in the wider context of the existing European case-law, namely the jurisprudence of the Court of Justice of the European Union (CJEU) and other precedents in which the ECtHR has dealt with Article 3 claims based on sexual orientation.

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Honner v France: Damage Prevention and/or Damage Control?

By Alice Margaria (Senior Research Fellow, Department of ‘Law & Anthropology’, Max Planck Institute for Social Anthropology)

In 2020, an application concerning the parental rights of a co-mother was to be expected. What is surprising, however, is the ECtHR’s response. In Honner v France, the Court held that the refusal to grant contact rights to a social mother in respect of her child who had been born to her former female partner using assisted reproductive technologies in Belgium did not violate her right to respect for family life. This judgment evokes different feelings, prima facie conflicting but eventually pointing to a consistent picture of the ECtHR: that of an international court with strong expressive powers, which is expected to be at the same time cautious and leading the development of human rights standards in Europe and beyond. 

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When States Steal Christmas: the Citizens’ Right to Return to the Country of Citizenship in Time of Pandemic

By Andrea Preziosi (University of Birmingham – School of Law)

Prologue

When I started writing this post, I was stuck in Birmingham few days before Christmas instead of being on a flight to Italy to spend the holiday break with my family. Needless to say, it was not my decision, but the result of the decision of the Italian government, as well as many other governments around the world, to ban flights from the UK following the reported news of a new variant of Covid-19 detected in south-east England that threatened to spread anywhere else. Frustration, anger and sadness are not enough to describe my feelings when the news broke out. I thought that Italy had disrupted my plan to visit my  family and condemned me to pass Christmas in total loneliness, as if the forced isolation lasting almost one year had not been enough.

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Insulting accusation of domestic violence

By Dirk Voorhoof and Inger Høedt-Rasmussen (*)

The European Court of Human Rights (ECtHR), delivered an interesting judgment in the case of Tölle v. Croatia about insulting allegations of domestic violence. In a newspaper article a father accused an association to be responsible for his child’s abduction by the mother. The president of this association providing support for women victims of violence replied in a radio-interview that her organisation was not involved in the daughter’s abduction and that the man had violently abused his wife. That was also the reason why mother and daughter had fled the country. The association’s president was subsequently convicted for the criminal offence of insult. The ECtHR found that this criminal conviction amounted to a violation of the association’s president’s freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). The Court finds the criminal conviction for insult a sort of censorship, discouraging the promotion for support of victims of domestic violence.

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Unuane v United Kingdom: does the Convention require “pure” proportionality?

By Lewis Graham (PhD Researcher at Pembroke College, Cambridge)

The Fourth Section recently delivered its judgment in Unuane v United Kingdom, in which it found that the UK had breached Article 8 ECHR through approving the deportation of an individual without properly evaluating the impact this would have on his private and family life under Article 8 ECHR. The case is important not only for its conclusions on the UK’s deportation scheme, but also for what it clarifies (and, disappointingly, what it does not clarify) about what immigration and deportation schemes across Europe must do in order to be considered compatible with Article 8 ECHR.

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Addressing gender discrimination at work, still an important challenge for the ECtHR in Napotnik v. Romania

Beril Önder: PhD Candidate, University of Strasbourg (Institut de Recherches Carré de Malberg) and Ghent University (Human Rights Centre)

On 20 October 2020, the European Court of Human Rights (‘ECtHR’ or the ‘Court’) delivered a judgment in the case of Napotnik v. Romania (application no. 33139/13). The case concerns the immediate termination of a female applicant’s diplomatic posting, allegedly due to her pregnancy,  to the Romanian Embassy in Ljubljana, Slovenia.

This is the first case where the Court not only examines, on the merits, a complaint regarding discrimination on the grounds of sex under Article 1 of Protocol no. 12 of the Convention, but also a complaint concerning gender discrimination in the workplace because of pregnancy. In its judgment, the Court found that the applicant’s diplomatic assignment had been terminated primarily because of her pregnancy, and that she had been treated differently on the grounds of sex. However, it concluded that this difference in treatment did not constitute a violation as the domestic authorities had provided relevant and sufficient reasons to justify the necessity of the measure.

This blogpost will first discuss the facts of the case and the Court’s judgment, and then will focus on the problematic aspects of the judgment from a gender equality perspective.

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Guðmundur Andri Ástráðsson: the right to a tribunal established by law expanded to the appointment of judges

By Mathieu Leloup, PhD researcher in constitutional and administrative law at the University of Antwerp, Belgium, research group Government and Law

Is a court that includes a judge who was appointed in violation of the relevant legal provisions still a “tribunal established by law” as required under Article 6 ECHR? Though the question may be simple, it is certainly not an easy one. It is this matter that the Grand Chamber had to decide in the case of Guðmundur Andri Ástráðsson. Even before the actual judgment came out on 1 December 2020, the case had already sent a big shockwave throughout Iceland. After the Chamber had found a violation in its judgment in March 2019, the Minister of Justice resigned from her position. Nevertheless, the judgment in itself is also of ground-breaking importance, as it clarifies and broadens the scope of the right to a tribunal established by law, and thereby affects one of the foundational aspects of the rule of law.

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Legal sex/gender recognition beyond the binary: Human Rights Centre submits Third Party Intervention

By Mattias Decoster (PhD researcher at Ghent University and University of Antwerp) and Sarah Schoentjes (PhD researcher at Ghent University).

The Human Rights Centre of Ghent University[1], in collaboration with the Equality Law Clinic from the Université Libre de Bruxelles[2], submitted a third party intervention before the European Court of Human Rights in the case of Y v. France. With this case, the Court is invited to pronounce itself on the issue of non-binary sex/gender markers in official documents. It was brought by an intersex applicant who identifies as gender non-binary.[3] The stakes are high not only for persons with certain variations in sex characteristics (intersex persons), but also for all those who identify outside of the gender binary and want to be legally recognised as such. In our submission, we argue that Contracting Parties which refuse to register individuals who seek a non-binary sex/gender marker as such violate their positive and negative obligations under Article 8 of the European Convention on Human Rights, taken alone or in conjunction with Article 14. The facts and our arguments are further outlined below. 

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Sabuncu and Others v. Turkey: the final chapter of the Cumhuriyet Trial?

Matteo Mastracci, Ph.D. Researcher at Koç University, and reporter for Oxford Reports on International Law (ORIL)

In a long-awaited decision, the European Court of Human Rights finally ruled on 10 November 2020 on the case of Sabuncu and Others v. Turkey. The case, better known as the Cumhuriyet trial, named after the newspaper in which the applicants were working as journalists, concerned the detention of ten individuals on terrorism-related charges. The Court, in a much ado about nothing decision, found a violation of Article 5 §1 (right to liberty and security) and Article 10 (freedom of expression) of the Convention. However, upon closer inspection, both the legal argumentation and the concrete outcome of the judgment are only partially satisfactory.

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The Case of Perovy v. Russia: Dealing with the Right to Freedom of Religion in the Educational Sphere through Picking the Right Fruits

By Inez van Soolingen (Vrije Universiteit Amsterdam)

In the case of Perovy v. Russia, Ms. Perova and Mr. Perov complained that a rite of blessing in their son’s classroom, carried out by a priest of a different belief than their own, violated their rights under Article 2 of Protocol No. 1 (hereafter: the Protocol) and their son’s right under Article 9 of the European Convention on Human Rights (hereafter: the Convention). Even though the European Court of Human Rights (hereafter: the Court) was right in concluding that the state did not violate the rights of the parents or their son in this case, its overall reasoning leaves something to be desired. The Court pays no attention to the fact that the boy was only seven years old at the time, whilst the Grand Chamber highlighted, in a similar case, the importance of taking into account the young age of pupils when they are subjected to religious symbols.

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Russian Roulette? Selection of the Judicial Candidates to the European Court from Russia

By Kanstantsin Dzehtsiarou and Gennady Esakov

On 23 November 2020, the Russian Ministry of Justice announced the long list of candidates for the position of the judge of the European Court of Human Rights (ECtHR) elected on behalf of Russia. The new Russian judge will replace judge Dmitry Dedov whose term will expire on the New Year’s Eve of 2022. Judge Dedov was elected in 2011 and the national selection back then was not the best example of a transparent, meritorious and competitive procedure. Among the main problems in 2011 was that the competition was not widely announced and that the selection procedure was not entirely clear. It seems that the current competition is more transparent and the rules are somewhat more predictable but it is not without challenges either. We will briefly unpack the key challenges in this short contribution.

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M.A. v. Belgium: the (in)voluntary return of a Sudanese migrant and the dangers of informal migration cooperation with third countries

By Eleonora Frasca, PhD Researcher in EU Migration Law at UCLouvain, Member of EDEM (Equipe droit européen et migrations)

On 27 October 2020, the Court delivered its ruling in the case of M.A. v. Belgium (press release available in English). The case concerns the deportation of a Sudanese national, who was apprehended without documents by the Belgian police and detained pending removal, despite  an order to suspend the measure. The Court found a violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention due to the State’s failure to assess the applicant’s protection needs and risk of exposure to treatment contrary to Article 3 in the event of his return to Sudan. The Court also found a violation of Article 13 (right to an effective remedy) in conjunction with Article 3 because the remedy he used was rendered ineffective due to his removal despite him having successfully sought to prevent it.

This judgement is important for three reasons. Firstly, it provides clarification on the real and effective access to asylum procedures, particularly in cases where applicants are held in pre-removal detention and thus in a situation of increased vulnerability. Secondly, the judgment sheds lights on the procedural guarantees surrounding the organisation of meetings between an applicant and the authorities of their country of origin with a view to positively identify and issue documents for their return, before the applicant’s protection needs have been assessed. Thirdly, the Court rejected the State’s arguments regarding the voluntary character of the applicant’s return to Sudan and provided guidelines to clearly distinguish voluntary departure from forcible return.

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‘Appearance of impartiality’: how should the courts reason in the presence of external pressure?

Donatas Murauskas, Assistant Professor at Vilnius University Law Faculty

Judges face a dilemma that is a core issue for the judiciary in a democracy: to react or not to react when confronted by media and politicians on pending cases? One option is to be explicit, take visible steps that support your unbiased approach. Another option is to maintain silence and focus on the case, with disregard to any external disturbances.

But it seems that the Strasbourg courts’ doctrine on the requirement to reply to party’s arguments that are decisive for the outcome of the case leaves no choice here. The ECtHR established this requirement under Art. 6 of the Convention in Ruiz Torija v. Spain and it has been confirmed in other cases. Technically, if a party raises its doubts about a court’s impartiality, this, being part of Art. 6 framework, implies the necessity to react – to explicitly reply to such arguments. But does it really?

In a recent case Čivinskaitė v. Lithuania the European Court of Human Rights (ECtHR) had front-row seats to this issue. National courts deliberated this case in the presence of external pressure that was pointed out by the applicant in her complaint. The courts decided not to explicitly react to this pressure, to stay focused on the main issue of the case and not to give any hint that they were affected by external opinions. The Court agreed with the national courts’ approach finding no violation. It appears that this finding could adjust the Court’s case-law on the requirement to reason decisions under Article 6 § 1 of the Convention.

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Inadmissibility of evidence obtained by private persons through the use of torture or inhuman or degrading treatment: the case of Ćwik v. Poland

Tobias Thienel, associated fellow at the Walther Schücking Institute of International Law at the University of Kiel, Germany, and lawyer with Weissleder Ewer*

A classic staple of the cop show genre has the detective ‘roughing up’ a stubborn defendant in order to produce a confession. This somewhat hackneyed story line never had much to do with the law, because it is clear that evidence that the police have obtained by serious ill-treatment is inadmissible in court. But the story becomes more original if it is not the police, but a relative of a victim or a rival criminal that commits the violence and obtains evidence. The law is rather less clear on whether evidence obtained through ill-treatment by private persons is also inadmissible. The European Court of Human Rights has now answered this question in Ćwik v. Poland. The answer is very much in the affirmative.

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OOO Regnum v. Russia: extending reputational rights to legal entities?

By Juncal Montero Regules (UHasselt)

On 8 September 2020, the Third Section of the European Court of Human Rights delivered its judgment in OOO Regnum v. Russia (application no. 22649/08), a freedom of expression case concerning reputational rights of a legal person. The Court found that OOO Regnum, an electronic news outlet, had suffered a violation of its right to freedom of expression when the domestic courts declared it had published news which amounted to defamation against the claimant company, a private corporation. The judgment adds up to a number of cases where the ECtHR is unclear as to the place of the right to corporate reputation under the European Convention on Human Rights. OOO Regnum sheds no light on this question: the Court’s reasoning adds to confusion about the matter while leaving the door open for the recognition of reputational rights of legal persons.

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The Challenges of Saying ‘I do’ for same-sex couples: The Human Rights Centre submits a Third Party Intervention in transnational same-sex marriage case

By Claire Poppelwell-Scevak (PhD Researcher at the Human Rights Centre, Ghent University) and Sarah Den Haese (PhD Researcher at the Human Rights Centre, Ghent University)

The Human Rights Centre of Ghent University[1] (Belgium) recently submitted a third party intervention (TPI) before the European Court of Human Rights in the communicated case of Szypuła v. Poland and Urbanik and Alonso Rodriguez v. Poland. The issue is the restrictive marriage eligibility measures in Poland that prevent Polish nationals who are in a same-sex relationship from enjoying their right to marry abroad in countries which allow for same-sex marriage (in these two cases, Spain). In our submission, we argue that this case raises important issues under the right to marry (Article 12 ECHR), taken alone and in conjunction with the prohibition of discrimination (Article 14 ECHR), providing the Court with an important opportunity to clarify the scope of the right to marry, specifically in a transnational context, of same-sex couples. Further, we invite the Court to clarify the obligations weighing on both of the member states concerned. An overview of the facts as well as a summary regarding our main arguments are provided hereunder.

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European Court of Human Rights single-judge decisions (still) deny justice and risk weakening UN treaty body system

By Justin M. Loveland

The European Court of Human Rights has made important contributions to the development of international human rights jurisprudence, influencing not only the domestic jurisprudence of its member European states but the practices of states outside the European system, other regional human rights systems, and international law more broadly. This well-deserved influence is in danger, however, as the Court’s continued practice of issuing bare admissibility decisions in single-judge formation undercuts its leadership role in articulating human rights law, denies relief to individuals who may have a legitimate human rights claim, and threatens to diminish the protective role of both the Court and UN treaty bodies at a time when infringements of a broad range of human rights are on the increase.

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The case of Muhammad and Muhammad v. Romania: the first Grand Chamber judgment on article 1 of Protocol Nr. 7 ECHR (procedural safeguards with regard to expulsion of aliens)

By Bahija Aarrass (Assistant professor of administrative and migration law at the Open University Netherlands)

In the judgment in the case of Muhammad and Muhammad v. Romania, the Grand Chamber  of the European Court of Human Rights held that there had been a violation of Article 1 of Protocol No. 7 of the ECHR, which provides for procedural safeguards relating to the expulsion of aliens. The case concerned proceedings as a result of which the applicants, Pakistani nationals living lawfully in Romania as students, were declared undesirable and deported on the basis of national security reasons. They allegedly engaged in activities in support of a fundamentalist Islamist group linked ideologically to al-Qaeda. The Court has previously dealt with numerous cases concerning expulsion of aliens because of vague ‘national security reasons’. But this is the first judgment of the Grand Chamber in which this provision has been dealt with substantively. It resulted in an elaborate judgment laying down several principles for the assessment of national procedures relating to the expulsion of aliens.

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A camel’s nose under the tent: the Court’s failure to discuss evidence in B.G. and Others v France

By Anne-Katrin Speck,[*] PhD Researcher within the ERC-funded project DISSECT: Evidence in International Human Rights Adjudication at Ghent University

Timing can be a peculiar thing sometimes. On 10 September 2020, a Chamber of the European Court of Human Rights ruled on the case of B.G. and Others v France,[†] finding that the accommodation conditions endured for several months by an asylum-seeking family in a tent camp in France had not amounted to inhuman or degrading treatment. At the very same time, news channels were showing flames raging in Moria, Europe’s largest refugee camp, on the Greek island of Lesvos. A horrific fire had broken out there the day before, and would leave many thousands of refugees without shelter and access to basic services. The handing down of the judgment and the Lesvos fire are assuredly unrelated events. Yet, their coincidence is a stark reminder that the living conditions in camps for people fleeing their country are as grave a concern as ever.

But how bad is too bad? When are the living conditions in a camp so harsh as to attain a level of severity that is impermissible under the Convention? Who ought to prove this, and how can they? This post focuses on these evidentiary questions. We shall see that the Court’s treatment of evidence in B.G. and Others may prove to be the camel’s nose. According to this purported Arab proverb, once you allow a camel to stick its nose under your tent, the camel is bound to end up inside. Thus, a seemingly minor decision will have much wider, undesirable consequences. Much in the same manner, the Court’s approach to evidentiary issues in B.G. and Others, while unlikely to receive much attention, may have serious repercussions.

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An Endeavor Towards More Situational Positive Obligations Stemming from Article 2: Case of Kotilainen and others v. Finland

Elina Pekkarinen is a university instructor and PhD candidate in Tampere University. Her dissertation concerns the contextual interpretation of rights laid down in the European Convention

Introduction

On 17 September 2020, the European Court of Human Rights delivered its judgement in the case of Kotilainen and others v. Finland (application no.62439/12). The ECtHR found that Finland had violated the substantive aspect of Article 2 of the European Convention on Human Rights when the local police refrained from seizing a weapon from a person who subsequently committed a school shooting. The Court was satisfied that the national authorities complied with the requirements emanating from the procedural aspect of Article 2. The rest of the applicants’ complaint, which concerned Articles 5, 6 and 13 of the Convention, was declared manifestly ill-founded.

In Kotilainen and others, the Court emphasised the duty of diligence which poses special obligations to national authorities when they are dealing with matters that include a particularly high risk to life. Moreover, the Court concluded that an obligation to uphold the legislation regulating the lawful possession of firearms does not only require, from the national authorities, that they intervene in activities where the risk to life is imminent, but also in activities that cause concrete suspicions about the compliance of requirements regarding the possession of a firearm.

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Catch 22: The Interim Measures of the European Court of Human Rights in the Conflict between Armenia and Azerbaijan

By Prof Kanstantsin Dzehtsiarou (University of Liverpool, Editor-in-chief of the European Convention on Human Rights Law Review)

On 29 September 2020, the European Court of Human Rights (ECtHR or Court) granted interim measures in the inter-state application of Armenia against Azerbaijan related to the conflict in Nagorno-Karabakh. Through these measures the Court demanded Armenia and Azerbaijan not to breach human rights of the civilian population. On 6 October 2020, the Court extended the already broad interim measures to ‘all States directly or indirectly  involved in  the conflict, including Turkey, to refrain from actions  that  contribute to breaches of the  Convention rights of civilians, and to respect their obligations under the Convention’. It was at least the third time that the Court granted such measures in the context of the inter-state cases. Interim measures were also requested and granted in Georgia v Russia and Ukraine v Russia. I commented on the effectiveness of these measures in previous interstate cases here and here. Unfortunately, the current case provides further evidence that the Court’s interim measures in inter-state cases suffer from two key challenges: first, they are vague and their legal value is unclear; second, their impact almost entirely depends on the political reality on the ground. One can argue that the latter challenge can be applicable to every decision of the Court but when interim measures are issued in “the heat of the moment”, the costs of compliance for the parties can be too high.

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Systematic push back of ‘well behaving’ asylum seekers at the Polish border: M.K. and Others v. Poland

Francesco Luigi Gatta, Research Fellow, UCLouvain, EDEM

On 23 July 2020, the ECtHR delivered its judgment in the case M.K. and Others v. Poland, concerning the removal of certain Russian families to Belarus, after they had repeatedly and unsuccessfully tried to lodge asylum applications at the Polish border. With an encouraging decision, the Court found – unanimously – multiple violations of the Convention, unmasking a wide State practice of systematic push back of asylum seekers at the borders between Poland and Belarus.

The Court adds a new chapter to its growing case-law concerning border controls, collective expulsions of migrants and push back practises at land borders. For the first time, following the judgment in N.D. & N.T. v. Spain, it explicitly performs the ‘own culpable conduct test’ or the ‘N.D. & N.T. exception’, methodically assessing the applicants’ behaviour at borders. It also provides some insights about individual assessments and interviews to be performed by border authorities.

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Placing gender equality in the workplace at the forefront of social rights in Europe: equal pay and equal opportunities under the scrutiny of the European Committee of Social Rights.

By Maria Kotsoni, a PhD Researcher at the Department of Law of the European University Institute

Recently, the European Committee of Social Rights (ECSR) adopted a series of decisions on equal pay and equality of opportunity between women and men in the workplace. This is the first time the ECSR reviewed states’ compliance on these matters in the context of the collective complaints procedure, therefore establishing comprehensive standards of protection.  Following the collective complaints lodged by the non-governmental international organization University Women of Europe, it assessed the compliance with these standards of all the fifteen Member States to the European Social Charter (ESC) that have ratified or acceded to the Additional Protocol providing for a system of collective complaints, namely Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, Slovenia and Sweden. The decisions were adopted on 5 and 6 December 2019 and became public on 29 June 2020.  

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Substantive equality as the driving force behind reasonable accommodations for pupils with disabilities: the case of G.L. v. Italy

By Merel Vrancken (UHasselt)

In G.L. v. Italy, the first section of the European Court of Human Rights decides on yet another case regarding the principle of inclusive education and the right to reasonable accommodations for persons with disabilities. The two most recent cases on inclusive education (Dupin v. France and Stoian v. Romania, decided at a committee level) seemed to have marked a turn in the Court’s appraisal of the right to education and the principle of non-discrimination. With G.L. v. Italy, however, the Court seems to return to its earlier case law, namely that of Çam v. Turkey and Enver Şahin v. Turkey. In the judgment at hand, the ECtHR gets back in line with its promising line of case law on the inclusion of pupils with disabilities and sets a valuable next step in the direction of substantive equality.

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The Strasbourg Court Establishes Standards on Blocking Access to Websites

Atakan Güngördü is a qualified attorney in Turkey, currently pursuing an Adv. LL.M. in European and International Human Rights Law at Leiden University.

On 23 June 2020, European Court of Human Rights (the “Strasbourg Court” or the “Court”) delivered no less than four judgments against Russia (OOO Flavus and Others v. Russia, Bulgakov v. Russia, Engels v. Russia, Vladimir Kharitonov v. Russia) all of which concern the blocking of access to websites. The Court held that Russian authorities had violated the applicants’ right to freedom of expression on the internet, as well as their right to an effective remedy in all four cases.

These four judgments come as an important victory for the protection of online free speech in Russia and set precedents for other Member States to adopt or amend internet laws in line with the Court’s standards.

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Irony in Court: Marina v. Romania

By Dr Alberto Godioli*

Introduction

Due to its inherent link with elusiveness and ambiguity, humour makes it particularly difficult to draw a line between lawful and unlawful expression. The task of assessing the harm in a joke is notoriously complicated by strategies such as exaggeration, distortion or irony, which are typical of humorous expression in its various forms (from satire to parody). The legal challenges posed by humour become apparent in several cases lodged with the ECHR either by those responsible for a controversial joke (under Article 10), or by those who felt offended by a humorous remark (under Article 8 or 9). The list of humour-related cases handled by the Strasbourg Court is by now quite extensive and diverse – including, among others, satirical paintings depicting Austrian politicians (Vereinigung Bildender Künstler v. Austria), mocking remarks about a brand of potato chips (Kuliś and Różycki v. Poland), obscene cartoons about colleagues (Aguilera Jimenez and Others v. Spain), homophobic jokes (Sousa Goucha v. Portugal) and facetious references to the lifestyle of public figures (Ernst August von Hannover v. Germany).

In short, humour is a frequent feature in Strasbourg jurisprudence regarding freedom of expression; and this is bound to become an increasingly topical issue, due to the growing impact and circulation of offensive jokes in the digital age. On the other hand, as shown by recent scholarship, the Court’s approach to humour is still relatively inconsistent and unsystematic; this is mostly due to the lack of a shared terminology and clear distinctions between different types of potentially offensive humour. In order to tackle this gap, a closer interdisciplinary dialogue is needed between humour studies and the law. My blog post aims to illustrate this point by commenting on Marina v. Romania, a recent case concerning a satirical radio show; while the general outcome of the case is convincing, the Court’s handling of humorous speech is problematic in some respects, and points to persistent flaws in the current approach. Continue reading

The Lithuanian saga of limiting evidence in trials – the genesis and new cases

By Donatas Murauskas, Assistant Professor at Vilnius University Law Faculty

The European Court of Human Rights continues to deal with cases against Lithuania concerning equality of arms in trials. Earlier cases could be linked to the heritage of the Soviet rule and practices, recent cases are illustrations of increasing reliance on national security in (criminal) intelligence in discovering relevant facts to be used later in national proceedings. In all cases the law or state authorities limit possibilities of one party to challenge some of decisive or at least important evidence in judicial proceedings. The question arises every time – was the measure proportional or not? Continue reading

Defamation proceedings against Romanian MEP over anti-corruption comments violated Article 10

By Ronan Ó Fathaigh and Dirk Voorhoof

On 28 July 2020, the European Court of Human Rights held in Monica Macovei v. Romania that defamation proceedings against a sitting Member of the European Parliament violated the politician’s right to freedom of expression, under Article 10 of the European Convention on Human Rights. The Court reiterated that there is ‘little scope’ for restricting political speech, and faulted the national courts for lacking ‘convincing reasons’ for interfering with an elected official’s expression on a matter of public interest. The judgment is a strong reaffirmation of the Court’s seminal 1992 Castells v. Spain judgment, with the Court applying its strictest test – ‘closest scrutiny’ – to interferences with a politician’s freedom of expression discussing a matter of public interest. It also clarifies that allegations of corruptive practices by members of parliament need to be situated in their context, in particular when they are part of a political debate on how to prevent conflicts of interests and lack of integrity by elected officials. Continue reading

Mugemangango v. Belgium: finally a Grand Chamber judgment on post-election disputes.

By Mathieu Leloup

Post-election disputes and the type of body that should handle them is a topic that comes up before the Court every now and again. In 2010, in the case of Grosaru v. Romania, the Court had indicated that a parliamentary body could not be seen as sufficiently impartial when it had to rule on a dispute about its own election results. After this judgment, it was generally accepted by Belgian constitutional scholars that the system of election disputes in Belgium, which is also parliamentary in nature, was not in line with the Convention standards. It was simply a matter of time until a Belgian case on the issue was brought before the Court.

With Mugemangango v. Belgium that time had arrived. A bit more than a decade after the Grosaru judgment, the Court was going to rule on the Belgian system of election disputes. Continue reading