ECtHR or CEDAW: Spoilt for Choice in Moldova?

By Irina Crivet (PhD Candidate, Koç University, Istanbul, Turkey)

The proliferation of international and regional human rights bodies has given the victims of human rights violations the chance to pick and choose where they can send their complaints. Whilst these choices are limited by geographical locations of individuals and the states’ acceptance of right to individual petition before multiple bodies, today some individuals and their lawyers have more than one choice. Moldova is one such country. Individuals can submit applications either before the European Court of Human Rights (ECtHR) – or before  quasi-judicial human rights bodies of the United Nations, the UN Treaty Bodies (UNTBs).

This blog post examines the effects of this proliferation for Moldovan victims of domestic violence who can take cases both before the ECtHR and the Committee on the Elimination of Discrimination against Women (CEDAW or the Committee). In doing so, I first examine the ECtHR case law regarding domestic violence in Moldova and the status of views adopted by UNTBs against Moldova. Continue reading

Loneliness that is good for you: the European Court addresses the right to marry of people with disabilities

By Constantin Cojocariu, human rights lawyer specialised in disability and transgender rights

On 25 October 2018, the European Court of Human Rights issued its first substantive ruling under Article 12 regarding people placed under guardianship.[i] Delecolle v. France involved an elderly man who was not allowed to marry a long-time friend under the pretext that he was not able to understand the financial implications of that decision. The Court held that the right to marry and found a family under Article 12 benefited only those possessing full legal capacity. It did not engage with the justifications advanced for depriving the applicant of his capacity to marry, focusing instead on the quality of the national procedures. Worryingly, the Court endorsed reasoning that was impregnated with prejudice against and paternalism towards the elderly and the disabled. The Court has lately proven increasingly willing to consider the implications of the widely ratified Convention on Human Rights of Persons with Disabilities (CRPD) for its jurisprudence. Several judgments have broken new ground, such as Çam v. Turkey on inclusive education and Guberina v. Croatia on accessibility and reasonable accommodation. With the Delecolle judgment, the Court reverts to an uncertain trajectory in the area of disability, characterised by a palpable inability to develop, and apply consistently, a coherent set of principles on difficult subjects such as legal capacity, accessibility, independent living or detention. Continue reading

Mutu and Pechstein v. Switzerland: Strasbourg’s Assessment of the Right to a Fair Hearing in Sports Arbitration

This guest post was written by Cathérine Van de Graaf, a PhD student at Ghent University.

In Mutu and Pechstein v. Switzerland, the European Court of Human Rights considered the lawfulness of proceedings at the Court of Arbitration for Sports (CAS) in Lausanne. In its analysis, the Court focussed on three elements: the free acceptance of the arbitration clause by the applicants; the status of the CAS as an independent and impartial tribunal established by law and the absence of a public hearing. Continue reading

Kaboglu and Oran v. Turkey: protecting the private life of scholars, yet failing to recognize the academic freedom dimension at issue

By Sophia Sideridou (intern at the Human Rights Centre of Ghent University)

On 30 October 2018, the European Court of Human Rights held unanimously that, in the case of Kaboglu and Oran v. Turkey, there has been a violation of Article 8 of the European Convention on Human Rights. The applicants were two university professors specializing in the protection of human rights and members of the Advisory Council on Human Rights. After the release of their report addressed to the government concerning questions of minority and cultural rights in Turkey, they faced harsh criticism through newspaper articles containing threats and hate speech against them. According to the ECtHR, the domestic courts of Turkey had failed to strike a fair balance between the applicants’ right to respect for their private life (Article 8) and the freedom of the press (Article 10). In its judgment , the Court identified the failure of the domestic courts to give due weight to the applicants’ Article 8 rights, but failed to recognize the negative impact that the articles in question as well had on their freedom of expression and academic freedom. Continue reading

Lachiri v. Belgium: Headscarf ban imposed on a civil party in a courtroom in violation of religious freedom

By Julie Ringelheim, researcher with the FRS-FNRS and Professor at Louvain University.

In Lachiri v. Belgium, decided on 18 September 2018, the European Court of Human Rights held that excluding a woman from the courtroom, who was a civil party to the case, on the ground that she wore an ‘Islamic headscarf’ (hijab) amounted to a breach of religious freedom protected by Article 9 ECHR. This judgment is especially noteworthy in view of the rise of prohibitions on wearing the headscarf, or religious symbols generally, in a number of areas in Belgium and France. So far, applicants contesting this sort of measures have rarely been successful in Strasbourg. On three occasions, however, the Court had found that a prohibition on the wearing of religious symbols or clothing lacked adequate justification: in Ahmet Arslan and others v. Turkey (members of a religious groups sanctioned for touring the streets while wearing the distinctive dress of their group); in Eweida and others v. United Kingdom (a British Airways employee was forbidden from wearing a cross necklace outside her clothes while working); and in Hamidović v. Bosnia Herzegovina (a witness in a criminal trial was summoned to remove the skullcap he wore as a member of the Salafist Muslim community). But with Lachiri, the Court for the first time, finds a violation in a case where the wearing of a headscarf by a Muslim woman was at stake. Importantly, this judgment highlights that there are limits to the margin of appreciation states enjoy when regulating the wearing of religious dress. Yet the judgment includes some ambiguous statements that undermine its potential for clarifying the principles applicable to religious symbols regulations. Continue reading

FRÖHLICH V. GERMANY: (AB)USING THE CHILD’S BEST INTERESTS TO SAFEGUARD THOSE OF OTHERS

By Evelyn Merckx, teaching assistant and PhD-researcher at Ghent University

To many, the simultaneous reading of Mandet v. France and Fröhlich v. Germany proves to be a crucial inconsistency in the case-law of the ECtHR. In Mandet v. France, the paternity of a legal father was withdrawn in favour of the biological father, despite the eleven-years-old child’s opposition to having his paternity changed which became evident from the letters addressed to the domestic judge. Subsequently, the domestic judge remarked that the child’s best interests “ne se trouvait pas tant là où le troisième requérant le voyait” (“did not lie where the child saw them himself”). The judge figured that the child should know the truth about his origins (for more information: see here). In Fröhlich v. Germany, a similar factual context existed, but in this case, the child was informed about the fact that a man started proceedings for contact and information rights, but not that this claim originated in his belief that he was her biological father. In the end, the domestic judge dismissed the request of the father on the grounds that the child’s best interests were endangered because the marriage between her legal parents could fall apart if the biological paternity of Fröhlich were to be established. Both domestic judgments were condoned by the ECtHR. Continue reading

Justice from the Perspective of an Applicant: meeting Ms Neulinger

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

In September I had the opportunity to meet the applicant in the Grand Chamber case Neulinger and Shuruk v Switzerland.[1] We had a lengthy 4 hours conversation about the ins and outs of her personal situation, the circumstances that led her to taking her son away from Israel to Switzerland and her experience with the European Court of Human Rights. Hence, in this contribution, I would like to share that experience and highlight some aspects which may be potentially interesting for the readership of this blog.

But first a brief reminder of the circumstances of the case. Continue reading