Pedersen et al v. Norway: Progress towards child-centrism at the European Court of Human Rights?

By Katre Luhamaa and Jenny Krutzinna, researchers at the Centre for Research on Discretion and Paternalism (University of Bergen)

Introduction

In February this year (2020), the European Court of Human Rights (ECtHR, Court) delivered two further judgments relating to the Norwegian child protection system (Hernehult v. Norway and Pedersen et al. v. Norway). In both of these, the ECtHR concluded that Norway violated the right to respect for family life (Article 8) when implementing child protection measures. This analysis focuses on Pedersen et al. v. Norway, where the Court addressed the issues of adoption and post-adoption contact.

National adoption proceedings are often hidden from public scrutiny. Indeed, research into the legal practice of eight European states showed that there are minimal accountability measures available in these cases (Burns et al. 2019). Thus, the cases that face the international scrutiny of the ECtHR give us a rare insight into the national argumentation and practice and reveal the complexity of these public care measures.

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The ECHR and the right to have a criminal record and a drink-drive history erased

By Jurij Toplak

The ECHR’s Article 8 guarantees a right to have data related to criminal procedures reviewed and, after some time and in most cases, removed. In this blog post, I will first summarise the case law of the European Court of Human Rights (ECHR or “the Court”) on the retention, review, and removal of data stored during a criminal procedure and the data on convictions, generally known as “criminal records”. I will focus on two judgments, issued on 13 February 2020. They are Gaughran v. the United Kingdom and Trajkovski and Chipovski v. North Macedonia. Then I will present and analyse cases currently pending before the Court and issues on which the Court will decide shortly. Continue reading

Access to healthcare and social distance during COVID pandemic cannot stop at the prison gate

By Maïté De Rue

Because they are often very populated places with poor living conditions, prisons present a high risk of contamination in a period of pandemic such as COVID-19. A number of countries have taken measures to decrease pressure on penitentiary institutions by releasing prisoners or decreasing the number of new arrivals. This approach is with no doubt an essential one, especially in light of overcrowding that characterizes many prisons around the world. However, this is not the only measure that States must take to respond to the health crisis, as many people will stay in prison. They have also the duty to organize the protection of health and life of prisoners.

What does such obligation concretely entail when facing a pandemic? The norms and standards developed by the Council of Europe, and in particular by the Court and the European Committee for the prevention of torture (CPT), and by the United Nations can help to answer this question and to define the main duties that define State obligations with regards to protecting prisoners against COVID-19. Continue reading

ATV ZRT v. Hungary: a missed opportunity to address Hungary’s oppressive Media Act

Guest Blogger: Nina de Puy Kamp, Paralegal at Leigh Day Solicitors, London UK*

Hungary’s Media Act 2010 (the Act) garnered much criticism for its chilling effects on free speech (UN, OSCE, EU, HRW).  The Act establishes a media regulator (appointed by the ruling party) to inter alia prohibit and impose fines for ‘imbalanced coverage’ and restrict non-disclosure rights of journalistic sources. ATV ZRT v Hungary concerned sections 12(3) and (4) of the Act which prohibits media service providers from adding ‘any opinion or evaluative explanation to the political news’ without ‘distinguishing it from the news [itself]’.  In its judgement, the Court expresses concern about the legal certainty of these provisions.  Nevertheless, it veers away from ruling on the Convention-compatibility of sections 12(3) and (4) of the Act.  Instead, the Court opts for a narrow ruling, finding a violation of Article 10 on the facts without triggering much needed legislative change. Continue reading

Herd Immunity and Lockdown: The Legitimacy of National Policies Against the Pandemic and Judicial Self-Restraint by the ECtHR

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

The ongoing pandemic and the measures adopted to protect human life/health in response to the coronavirus seriously affect the enjoyment of fundamental human rights. The COVID-19 outbreak has led a number of states to derogate from their international human rights obligations. Other states have not (yet) formally derogated, but they have passed emergency legislation restricting rights through the usual means that are available within their domestic legal orders (for instance, regarding the author’s home country, see Karavokyris). This trend raises a number of interesting questions as to whether emergency laws amount to an unnotified, de facto derogation or whether states should declare a state of emergency (Greene, Scheinin). More generally, questions regarding the modalities (Istrefi, Holcroft-Emmess) and the lawfulness of derogations have arisen. Irrespective of whether restrictions to qualified/derogable human rights are made on the basis of a derogation clause contained in an international human rights instrument (such as Article 15 ECHR) or through the habitual route of ‘everyday life’ limitations, in both cases restrictions must ultimately satisfy the proportionality test. Proportionality is thus a common denominator. Continue reading

Reaching the dead-end: M.N. and others and the question of humanitarian visas

By Moritz Baumgärtel

M.N. and others v. Belgium confronted the ECtHR with the question whether Article 3 of the ECHR places an obligation on State Parties to provide short-term humanitarian visas in their foreign embassies and consulates to potential asylum seekers. The Court, assembled in its Grand Chamber, found the case to be outside the jurisdiction of the Convention and thus inadmissible. While many will look at this outcome with disappointment, it is above all expected. This post provides an initial evaluation focusing on the strategic merits of the case, the issue of extra-territorial jurisdiction, and the broader question of legal pathways to asylum. The argument, in short, will be that this decision may offer a chance to come to the overdue realization that the creation of such pathways is a political question, the answer to which cannot currently be found in European human rights law. Continue reading

‘Tell me your story, but hurry up because I have to expel you’ – Asady and Others v. Slovakia: how to (quickly) conduct individual interviews and (not) apply the ND & NT “own culpable conduct” test to collective expulsions

By Francesco Luigi Gatta, Research Fellow, UCLouvain, member of EDEM (Equipe droits européens et migrations)

On 24 March 2020, the ECtHR delivered its judgment in Asady and Others v. Slovakia, which concerned the expulsion to Ukraine of a group of Afghan nationals. With a controversial ruling (passed by a slight majority of 4 votes to 3 and accompanied by dissenting opinions) the Court declared that there had been no violation of the prohibition of collective expulsion under the terms of Article 4 of Protocol 4 ECHR.

The judgment is relevant for two reasons. First, it provides some (worrying) clarifications regarding the individualised examination of an alien prior to the expulsion, focusing on the conditions of the individual interview. Second, coming shortly after the Grand Chamber’s ruling in ND and NT v. Spain, it gave the Court an opportunity to reflect on the applicability of the exception of the “own culpable conduct” developed therein and to measure its impact on a case of collective expulsion at land borders. As it will be explained, however, this “hot potato” was only dealt with in the dissenting opinion and not by the Court, which avoided expressing itself on that point. Thus, it remains still unclear whether and how the new exception relates to the procedural test of the individualised assessment required by Article 4 of Protocol 4.

In general, Asady adds a new chapter to the fast-growing case law concerning this provision. After remaining ‘dormant’ for quite some time, it now represents a “rising star” in the migration-related litigation in Strasbourg, to such an extent that, basically, all the States forming the perimeter of the EU external borders have been involved in potential cases of collective expulsions. While initially the Court dealt with border practices aimed at tackling maritime migratory flows (e.g. Hirsi, Sharifi, Khlaifia), following the refugee crisis, it is now being called to assess the compatibility with the Convention of those conducted at land borders, including the so-called push backs. We will see if Asady will pave the way for similar decisions in cases involving the Eastern European borders which are pending against Croatia, Poland, Hungary, Latvia. Continue reading