The European Court & Defamation of the Dead: searching for clarity

By Jonathan McCully (Media Legal Defence Initiative / Columbia Global Freedom of Expression)

On 28 November 2017, in MAC TV v. Slovakia, the European Court of Human Rights (European Court) found a violation of the right to freedom of expression under Article 10 of the Convention where the Broadcasting Council of Slovakia had fined a television programme for showing a lack of respect to the dignity of the President of Poland following his death in a tragic plane accident. The case is one of the few where the European Court has considered the human rights implications of controversial stories following the death of an individual. However, it leaves much to be desired in terms of clarifying the status of “defamation of the dead” laws under the Convention. Continue reading

“Protecting the Public Purse” in cuts to Social Security: Krajnc v Slovenia

By Dr Ben Warwick (University of Birmingham)

Krajnc v Slovenia continues the ECtHR’s grappling with the interaction between Convention rights and public finance questions. Relying on Article 1, Protocol 1 the applicant successfully argued that a law change, which resulted in a halving of his disability allowance, was a breach of the Convention. The case follows many other cases in the same vein. Despite reaching this positive conclusion, in its reasoning the Court relies upon deeply problematic assumptions about the relationship between rights and fiscal policy, and fails to interrogate harmful stereotypes of disabled persons. Continue reading

‘Of course a stranger must conform’: reading the Ndidi judgment with Euripides’ Medea

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

Recently the ECtHR took an umpteenth swing at the question to what extent the family life and private life of a settled migrant with a criminal record is worthy of protection. At a time in which Council of Europe Member States, such as Belgium, have developed new legislation concerning the deportation of migrants allegedly posing a threat to public order, the case of Ndidi v. the United Kingdom does little to clarify the Court’s rather heterogenous case law in this matter.  I will give a brief description of the case, after which I will propose a new approach to private life and family life in deportation cases, based on a reading of Euripides’ famous play Medea, and inspired by the dissenting opinion of Judge Turković to the case. Continue reading

Tamiz v. UK: Google’s blog-publishing service is not liable for offensive comments

This guest post was written by Ingrida Milkaite (Ghent University)*

On 12 October 2017 the European Court of Human Rights (the Court, the ECtHR) decided on the liability of Google Inc. as an information society service provider for offensive comments posted below a blog post about Mr Payam Tamiz. His application filed under article 8 of the European Convention on Human Rights (ECHR, the Convention) was declared inadmissible.

Background and facts Continue reading

Preventive detention as a “penalty” in the case of Ilnseher v. Germany

By Emilie Rebsomen, Méryl Recotillet and Caroline Teuma (Aix-Marseille University) 

The internment of mentally ill offenders has a long history. The first safety measures were envisaged in the writings of the criminologists of the 18th and 19th century. Since then, various and varied security and safety measures have been introduced, security internment being one of them.

Faced with criminal policies increasingly oriented towards control, prevention or even precaution, security internment for an indefinite period as in the case of Ilnseher v. Germany threatens to spread even further. This is explained by an increasing social demand for justice and psychiatry. In the case Ilnseher v. Germany, a Chamber of the European Court of Human Rights (reaffirmed its position, developed in the Bergmann case, concerning the retrospective preventive detention of convicted murderer placed in a centre for psychiatric treatment. On 29 May 2017, the Grand Chamber Panel accepted Mr Ilsneher’s request that the case be referred to the Grand Chamber. The hearing will take place on 29 November 2017. In this framework, the European Prison Litigation Network was invited by the President of the Grand Chamber to intervene as a third party in this case. Thanks to our partnership with the European Prison Litigation Network, our law clinic Aix Global Justice, had the opportunity to participate in this intervention.[1]

Continue reading

Difference in Treatment on the Ground of Sex Arising from Penal Policy Issues: Alexandru Enache v. Romania

By Beril Onder, PhD researcher at Ghent University and University of Strasbourg

On 3 October 2017 the Fourth Section of the Court delivered the judgment in Alexandru Enache v. Romania. The case concerned a discrimination complaint under Article 14 read in conjunction with Article 8 of the Convention, regarding a special measure granting women stay of execution of their prison sentences if they were pregnant or had a child under the age of one.[1] The issue concerned the difference in treatment between men and women arising from the penal policy, like the recent Grand Chamber judgment Khamtokhu and Aksenchik v. Russia, as the applicant was refused this stay of execution based solely on his gender. The Court, in both judgments, left a wide margin of appreciation to the State Parties, and supported its conclusion by referring to the international instruments addressing the needs of women for the protection of pregnancy and motherhood. However, both judgments can be considered problematic for different reasons from a perspective of gender stereotypes. Corina Heri, in her comment, already discussed the problems related to gender stereotypes in Khamtokhu and Aksenchik. The following comments will focus on the judgment in Alexandru Enache v. Romania. Continue reading

The Assembly’s row with Russia and its repercussions for the Convention system

By Lize R. Glas, assistant professor of European Law, Radboud University

In early 2014, Russia seized the Crimean peninsula from Ukraine. The annexation has had grave humanitarian consequences and has set in motion a chain of events that is likely to affect the European Convention on Human Rights (Convention) system. The most direct effect is extra pressure on the European Court of Human Rights (Court). Already in July 2016, about 3,000 applications relating to the annexation and the hostilities in Eastern Ukraine were pending before it. Many applications moreover include a request for interim measures. Additionally, Ukraine has brought no less than three inter-state cases against Russia. Another clearly visible effect concerns the applicability of the Convention: Ukraine has declared a state of emergency under Article 15 ECHR, so it can take measures derogating from most Convention rights. Other consequences are less direct or visible; they are the repercussions of a decision of the Parliamentary Assembly of the Council of Europe (Assembly). The Assembly took this decision in order to denounce Russia’s actions in Ukraine.

In this blog, I discuss that decision and its (potential) repercussions for the Convention system.  Continue reading