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

The Miners’ Raid of June 1990 and the Questionable Execution of the Judgment in the Case of Mocanu and Others v. Romania

By Monica Pirvulescu

On 17 September 2014, the Grand Chamber of the European Court of Human Rights (“ECtHR”) delivered its final judgment in the Case of Mocanu and Others v. Romania (“the Case of Mocanu”). The ECtHR found a breach of the procedural aspects of Article 2 (right to life) and Article 3 (prohibition of torture) in the European Convention of Human Rights (“ECHR”) for lack of an effective investigation, and a violation of Article 6 § 1 (right to a fair trial) for the excessive length of the impugned proceedings. The Case of Mocanu concerned the flaws and delays in the domestic investigations that followed the violent crackdown of the anti-government demonstrations which had taken place in Bucharest in June 1990 (events known as the Miners’ Raid because of the implication of mineworkers in the suppression of the protests). The final judgment in the Case of Mocanu (“the Judgment”) was seen by the victims of the Miners’ Raids and by the Romanian society, in general, as a big victory of European justice and as a hope that those responsible for the violent events of June 1990 would be soon identified and punished. However, today, almost six years since the delivery of the Judgment and two years since the resolution of the Committee of Ministers (Resolution CM/ResDH(2018)229) closed the execution in the Case of Mocanu, the domestic proceedings regarding the investigation of the Miners’ Raids of June 1990 seem still far from being finalized. Continue reading

The Bitter Price of Being an Inactive Parent: Lyapin v. Russia

By Nadia Rusinova, attorney-at-law and lecturer in International private law at the Hague University

On 30 June 2020 the European Court of Human Rights (hereinafter: The Court) delivered its judgment on the case Ilya Lyapin v. Russia. The case addresses the divestment of parental rights from a biological father due to his inaction in exercising his parental responsibilities. This inaction led to a voluntary and prolonged separation from the child, already well integrated into mother’s new family from an early age, and subsequently served as a main reason for the domestic court to fully deprive the father from his parental rights and duties. What is striking – and will be discussed in this post – is the obvious and already acknowledged inflexibility of the Russian laws, the lack of proportionality when taking such drastic measures, and the inconsistent conclusion of the Court that the mere passive behaviour of the father appears to be enough to strip him of all his parental authority and to pose absolute restrictions in the restoration of contact with his son. Continue reading

Strasbourg v Kafka: Diplomatic Immunity of the Judges of the European Court of Human Rights

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

I have already written about the unprecedented pressure that the Ukrainian authorities place on the sitting judge of the European Court of Human Rights (ECtHR or Court) in my previous blogpost on the issue. A while ago, the National Anti-Corruption Bureau of Ukraine started investigating the fact that the Ministry of Justice of Ukraine accepted a friendly settlement and paid compensation in one of the cases pending before the Court. There was nothing unusual about that case except a significant amount of compensation that would perhaps even have been higher if the friendly settlement had not been concluded. The Anti-Corruption Bureau tried to implicate the husband of the sitting Ukrainian Judge, Georgii Logvynskyi, in this case. Mr Logvynskyi is a well-known lawyer and politician in Ukraine. In my previous blog, I argued that the Court needs to react to these attempts to put the whole Court in disrepute. Now the Court was forced to react as the Prosecutor General of Ukraine requested the ECtHR to lift the immunity of Mr Logvynskyi which derives from the immunity of his spouse – Judge Ganna Yudkivska of the ECtHR. The Court decided not to lift this immunity because of the pressure that the National Anti-Corruption Bureau placed on the witnesses in this case. As far as I know this was only the second time that the question of immunities of the ECtHR judges came before the Court and the first time when the request was denied in full. Continue reading

Baldassi & Others v. France:  Article 10 protects the right to call for a boycott of goods from Israel

This guest post was written by Robert Wintemute (a Professor of Human Rights Law at King’s College London, who gave some comparative-law advice to the lawyers for the applicants) (*)

Criticism of the policies of a government, and calls for peaceful action intended to put pressure on it to change its policies, would normally be considered political expression protected by Article 10 of the European Convention on Human Rights.  But, since at least 1973, when Israel’s Foreign Minister, Abba Eban, wrote that “[a]nti-Zionism is merely the new anti-Semitism”, attempts have been made to characterise criticism of the Government of Israel’s treatment of the Palestinians as “anti-Semitic” (“anti-Jewish”), and therefore as a form of hate speech.  Describing Israel-Palestine as a situation of “apartheid”, and calling for a boycott of goods from Israeli settlements (built illegally in occupied Palestinian territory) or from anywhere in 1949-67 Israel, is especially likely to trigger this characterisation.  In Baldassi & Others v. France (11 June 2020), the European Court of Human Rights ruled unanimously (7-0) that Article 10 protects the right to call for a boycott of goods from Israel. Continue reading

Molla Sali v. Greece: a pyrrhic victory following just satisfaction judgment? 

By Adiba Firmansyah, LLB graduate from Middlesex University Dubai, soon to start as an LLM student at King’s College London

In its principal judgment in Molla Sali v. Greece, delivered on 19 December 2018, the Court held that there had been a violation of Article 14 ECHR in conjunction with Article 1 of Protocol No. 1. The case concerns a complaint by Ms Molla Sali, a widow to a Greek national from the Muslim minority, about the application of Sharia law to an inheritance dispute regarding her husband’s Greek and Turkish properties (a greater analysis of the merits of this case can be found here). The husband’s initial wish, expressed in a will drawn up in accordance with Greek civil law, to bequeath the whole of his estate to his wife (the applicant). However, the Greek courts considered that the will was devoid of effect and instead applied principles from Muslim inheritance law which, in Greece, applied specifically to Greeks of Muslim faith. The applicant was therefore deprived of 3/4 of her inheritance as a result, and the deceased husband’s sisters were subsequently recognised as joint beneficiaries.

The Court reserved the issue of just satisfaction under Article 41 to be decided at a later stage. In its just satisfaction judgment delivered on 8 June 2020, the Court held that it would be appropriate redress for the violations of the applicant’s rights if measures were taken by Greece so as to ensure that she retained the property left to her in Greece – but not in Turkey. It also held that if these measures are not taken within one year, Greece must pay the applicant pecuniary damages.

This judgment should be seen against the backdrop of the allocation of just satisfaction by the Court which has become increasingly controversial. As Abdelgawad notes, ‘Article 41 is probably one of the provisions which have raised the most important difficulties to judges over the years’. Given that the issue of just satisfaction is usually decided with scant legal reasoning and with only occasional allusions to equity and necessity as the foundational principles for the determination of compensation, the Molla Sali case therefore provided an opportunity for the Court to discuss the application of Article 41 in greater depth in a separate judgment.

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Regulating Signals intelligence

Iain Cameron is professor in public international law at Uppsala University

Introduction

For European states, an important factor pushing towards better regulation of security agencies generally has been the ECHR. The work of “signals intelligence” agencies (collecting metadata and the content of electronic mail and voice communications) came to prominence following the allegations of “mass surveillance” made by former NSA-contractor Edward Snowden in 2013. Compared to law enforcement or internal security agencies, signals intelligence agencies tend to possess much more powerful computing facilities, and they thus have abilities to process and analyse vast amounts of data. Data, both content data (telephone conversations, email etc.) and metadata are collected in bulk and then analysed using selectors. The ECtHR has recently looked at the systems for regulation and control of signals intelligence operating in two states, Sweden and the UK, in the cases of Centrum för Rättvisa v. Sweden (CFR) and Big Brother Watch and others v. UK (BBW) (see blogposts for these cases here and here). Both these cases have been appealed to the Grand Chamber which held an oral hearing on 10 July 2019. A judgment is expected soon. The present blog article will look at four issues of principle at stake in the two cases, namely bulk collection, judicial authorization, notification and discrimination. In each of these issues, there is some tension between the regional (ECHR) and sub-regional (EU) human rights standards applicable to signals intelligence.

There were three basic questions in BBW: these concerned the UK rules on bulk collection, on metadata and on intelligence sharing. The majority of the Court found violations of Article 8 and Article 10 as regards the first two issues. In CFR the issue was more simply whether the Swedish signals intelligence law and practice as a whole satisfied Article 8 and the Court unanimously found that it did. Both cases involved many sub-issues, and were detailed examinations of the foreseeability, accessibility etc. of the laws, and their necessity in a democratic society (which mainly centered around the adequacy of the control systems). The Court applies eight criteria in making its assessment, developed from its case law on targeted interception, and the Weber and Saravia v. Germany case. It declined the offer to develop new or additional criteria, taking into account improvements in technology, and designed for bulk interception specifically (previously discussed by the Venice Commission). Continue reading

Human Rights Centre submits a third party intervention in case concerning the right to family life of transgender parents and their children

Judith Vermeulen is a doctoral researcher and a member of the Law & Technology research group, the Human Rights Centre and PIXELS at Ghent University.

The Human Rights Centre of Ghent University (Belgium)[1] submitted a third party intervention (TPI) before the European Court of Human Rights in the communicated case of A.M. and Others v. Russia. The issue is the restriction of a trans woman’s parental rights in view of her gender identity. In our submission, we argue that this case raises important issues under the right to respect for family life (Article 8 ECHR), taken alone and in conjunction with the prohibition of discrimination (Article 14 ECHR), providing the Court with an important opportunity to clarify the standards in the area of human rights protection of trans persons and children. An overview of the facts as well as a summary regarding our main arguments are provided hereunder. Continue reading

Beshiri et al. v. Albania: a nail in the coffin for compensation claims for properties nationalized during the communist regime in Albania?

Giulia Borgna, PhD. Attorney-at-law at Saccucci & Partners and Co-Editor at eXtradando

Rivers of ink have flowed on the issue of compensation for former owners whose properties had been nationalized during the communist regime in Albania. Over the past decades, domestic reparation schemes and findings of violation have chased one another in an exhausting role-play on the stage of the European Court: every compensation scheme passed by the Albanian Government in the attempt to solve this systemic and structural problem would, time and again, be repudiated by the Strasbourg Court. The recent inadmissibility decision in the case of Beshiri and Others v. Albania of 17 March 2020 marks a turning point in this seemingly never-ending confrontational drama. The Court decided to pull itself away from this tiresome complex situation and waved the white flag of surrender. Even though the umpteenth revised compensation scheme passed by Albania in 2015 failed to transpose the vast majority of the directions laid down in the pilot-judgment of Manushaqe Puto, the Court sanctioned this legislative scheme in the name of budgetary constraints and subsidiarity, albeit wedging the door open for possible future reconsiderations. Continue reading

The Grand Chamber Judgment in S.M. v Croatia: Human Trafficking, Prostitution and the Definitional Scope of Article 4 ECHR

By Dr Vladislava Stoyanova (Associate Professor, Faculty of Law, Lund University)

With S.M. v Croatia, issued on 25 June 2020, the Grand Chamber delivered its first judgment under Article 4 (the right not to be held in slavery or servitude or to be required to perform forced or compulsory labour) concerning inter-personal harm, i.e. circumstances where one private individual has arguably abused another. The referral of the case to the Grand Chamber has to be viewed in light of the powerful and convincing dissenting opinion of Judge Koskelo attached to the Chamber judgment. An opinion, such as Koskelo’s dissent, was well overdue, given the definitional quagmire that the various Chamber judgments under Article 4 have caused. This quagmire started with Rantsev v Cyprus and Russia (see here) and has continued ever since (e.g. see Chowdury and Others v Greece, for an analysis see here and here). Continue reading

An Azeri kills an Armenian soldier at a NATO training in Budapest: the ECtHR decides a rare case of State responsibility and presidential pardon

By Cedric Ryngaert and Kushtrim Istrefi

On 26 May 2020, the European Court of Human Rights rendered a chamber judgment in Makuchyan and Minasyan v. Azerbaijan and Hungary. The case concerns a soldier from Azerbaijan, R.S., who killed an Armenian soldier and attempted to kill another one while on a NATO training in Budapest. R.S. was sentenced by the Hungarian courts to life imprisonment for committing a serious hate crime. In 2012, following a request by Azerbaijan, R.S. was transferred to his home country to serve the rest of his sentence. However, upon his arrival in Azerbaijan, R.S. was pardoned and released. He was promoted in the army and his salaries since 2004 were reinstated. R.S. was appreciated and glorified as a national hero for what he did in Budapest.

The legal issues raised in the case are as unique as the facts. In this analysis, we examine three core issues addressed by the Court. The first issue was whether the acts of R.S. were attributable to Azerbaijan on the ground that the latter acknowledged and adopted them. The Court held that they were not, and accordingly, that Azerbaijan had not breached its substantive obligations under Article 2 ECHR, which protects the right to life. The second issue was whether, in failing to enforce the punishment of R.S., Azerbaijan had violated its procedural obligations under Article 2 ECHR. The Court ruled that it did indeed. The third question was whether Hungary violated the procedural limb of Article 2 ECHR by agreeing to transfer R.S. to Azerbaijan, a question which the Court answered in the negative. The Court’s decisions further develop European and potentially international (human rights) law, and therefore call for some closer analysis. Continue reading

No Room for Homophobic Hate Speech Under the EHCR: Carl Jóhann Lilliendahl v. Iceland

By Giulio Fedele (University of Rome “La Sapienza”, giulio.fedele@uniroma1.it)

Hate-speech against sexual minorities has become a pressing issue for the ECHR. Online media and social platforms boosted the possibilities one has to express both personal opinions and hateful comments, thus making it harder for the Strasbourg Court to draw the line of the protection afforded by the ECHR. As it is well known, freedom of expression (Article 10 ECHR) is one of the few rights of the Convention that comes with “duties and responsibilities”, especially when such expressions conflict with “the rights of others” (Article 10 § 2). Nevertheless, the Court has constantly emphasized that the Convention protects various ideas, regardless of their power to “offend, shock or disturb”, thus requiring a certain threshold of graveness in order to lawfully restrict this right. The case commented in this post, the decision in Carl Jóhann Lilliendahl v. Iceland of May 12th 2020, communicated on June 11th 2020, provides an example of the rigid viewpoint recently adopted by the Court towards expressions that amount to homophobic hate speech, seen as falling outside the scope of Article 10. The Court struck out the application of Mr. Lilliendahl, a 74-year-old convicted for hateful online comments about homosexuality, for being manifestly ill-founded. The judgement is closely related to the case of Beizaras and Levickas v. Lithuania (judgementblog post), previously issued in January 2020, where the Court required the responding State to investigate online homophobic comments promoting violence. In this regard, the decision of the Court in Lilliendahl is of particular interest since it contributes to the development of the Court’s radical disapproval towards homophobic hate speech. It also highlights the coherent application of different principles of the Convention aiming at the protection of vulnerable groups from expression of hatred and intolerance. Continue reading

The Recent ECtHR Judgment Kövesi v. Romania. Reactions of Romanian Authorities and Implications regarding the Rule of Law

By Dragoș Călin

In the recent judgment in the case Kövesi v. Romania (application no. 3594/19) the European Court of Human Rights held, unanimously, that there had been a violation of Article 6 § 1 (right to a fair trial) and Article 10 (right to freedom of expression) of the European Convention on Human Rights regarding the former anti-corruption directorate chief prosecutor Laura Codruța Kövesi, now the first European Public Prosecutor.

In fact, in February 2018, the Minister of Justice, Mr. Tudorel Toader, proposed that Kövesi be removed from office, referring, among other things, to three Constitutional Court decisions adopted in connection with the activity of the National Anti-Corruption Directorate (DNA) and to public statements she had made. The Section for prosecutors of the Superior Council of Magistracy (SCM) refused by a majority to endorse her dismissal, largely rejecting the Minister’s criticisms of the prosecutor and finding no evidence that her management had been inadequate. In April 2018 the President of Romania, Mr. Klaus Iohannis, refused in turn to sign the dismissal decree, which prompted a complaint to the Constitutional Court (CCR) by the Prime Minister. Continue reading

(One More) Engaged Father(s) Before the ECtHR: Uzbyakov v Russia

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

Fathers who want to be or remain involved in their children’s lives have become frequent applicants before the ECtHR. Underlying many of their complaints are national measures reflecting a ‘conventional’ understanding of fatherhood, where paternal care is attached scant or no relevance. Such understanding lay also at the roots of the decisions of Russian courts to reject Mr Uzbyakov’s attempts to be reunited with his youngest daughter who had been adopted by third parties, after her mother’s death. In dealing with the resulting application under Article 8, the ECtHR brings its contribution to ongoing conversations on what makes someone a (legal) father. Next to biology and the nature of the father-mother relationship, ‘new’ elements are attached weight in the Court’s reasoning: in particular, Mr Uzbyakov’s actual behaviour towards his children and his promptness in bringing legal actions in view of having his daughter returned. This judgment (4 May 2020) offers therefore a clear illustration of the (re)construction of fatherhood that is quietly taking place within the Court’s jurisprudence under Article 8 (alone or in conjunction with Article 14). Continue reading

Social media and applications to the ECtHR: connecting people in the name of human rights?

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

In the era of the internet, social media and e-mails, the Strasbourg Court has been called to keep up with these ‘new technologies’. The ECtHR itself, for example, has an official Twitter account, used to give information and updates to the public. During the Covid-19 emergency, moreover, telework and electronic communication have enabled the Court to continue its essential activities (see the ECtHR’s press release: here and here).

Despite its undeniable usefulness, at the same time the use of internet has raised issues in terms of compliance with human rights. The Court has been dealing with an increasing number of questions relating to the freedom of expression, the right to respect for private life or the prohibition of discrimination, thereby developing its ‘new technologies’ case-law. Within this context, the social media-human rights nexus has also come to the attention of the Strasbourg judges, involving various issues such as hate speech (e.g. Beizaras and Levickas v. Lithuania, which concerned the discrimination, on the grounds of sexual orientation, of two men because of the authorities’ refusal to investigate homophobic comments posted on Facebook. For an analysis of the judgment, see here; for the issue of offensive comments on-line, see here).

But social media may have a direct impact on human rights also in terms of access to the ECtHR, as they may be used as a medium to lodge an application and/or to establish and maintain contact between the applicant and their representative. Accordingly, the Court has dealt with social media not only on its merits, but also from a procedural point of view, assessing the use of such modern and informal means of communication with regard to the admissibility of an application.

The topic of social media in the litigation before the ECtHR is addressed in this blogpost from two angles: the admissibility of the use of social media as a means to initially lodge an application to the Court (i), and to subsequently maintain the lawyer-applicant contact during the proceedings (ii). In each case, the legal framework is first briefly outlined, then some examples are provided. These are drawn from the ECtHR’s migration-related case-law, as situations involving migrants may typically pose major issues, given their often vulnerable and precarious conditions, for lawyers in terms of maintaining contact with the applicants. Continue reading

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

Indiscriminate Covid-19 location tracking (Part II): Can pandemic-related derogations be an opportunity to circumvent Strasbourg’s scrutiny?

By Ilia Siatitsa and Ioannis Kouvakas

Yesterday, we argued that blanket mobile phone location tracking measures that aim at containing the spread of the Covid-19 pandemic cannot be regarded as strictly necessary due to their indiscriminate nature and the existence of less intrusive alternatives with potentially similar effectiveness. In this second blog post, we reflect on whether states could derogate from Article 8 in order to impose indiscriminate location tracking.

As of 24 April 2020, ten states, i.e. Albania, Armenia, Estonia, Georgia, Latvia, Moldova, North Macedonia, Romania, San Marino and Serbia have officially derogated from their obligations under the European Convention on Human Rights (ECHR) citing the public health emergency posed by the pandemic, while a domestic court has also attempted to do so on behalf of the United Kingdom! Six of these states Albania, Estonia, Georgia, Latvia, North Macedonia and Romania – have explicitly included Article 8 (or the respective constitutional right) in the list of Articles they have chosen to derogate from. Continue reading

Indiscriminate Covid-19 location tracking (Part I): Necessary in a democratic society?

By Ilia Siatitsa and Ioannis Kouvakas

In his recent interview on The Intercept, Edward Snowden questioned whether the measures implemented by authorities amid the pandemic are necessary to safeguard people, as well as, whether the pandemic is seen by governments as just another opportunity to make us acquiesce to mass surveillance. In a scramble to track, and thereby stem the flow of new cases of Covid-19, governments around the world are rushing to track the locations of their populace. One way to do this is to leverage the metadata, including location data, held by mobile service providers (telecommunications companies) in order to track the movements of a population, as seen in Italy, Germany and Austria, and with the European Commission.

This is the first of two blog posts that will examine whether indiscriminate location tracking could ever be justified under the Convention, in light of the global pandemic. Continue reading

The end of the Interlaken process: A (yet another) missed opportunity to guarantee the long-term future of the ECtHR?

This post was written by Stefanos Xenofontos, PhD Researcher at Birmingham Law School

The Steering Committee for Human Rights (CDDH) has recently submitted its contribution to the evaluation of the Interlaken process for the reform and future of the European Court of Human Rights (ECtHR or ‘the Court’). Building upon its assessment in the 2015 report on the matter, the CDDH’s latest report, signals the end of a decade-long reform process, at least at a technical level. The ECtHR has pledged to reply to the Report in 2020 (See, Foreword by President Sicilianos). Despite its importance, however, the CDDH’s Report did not attract much (academic) attention to date – something that the present post seeks to compensate. In what follows, after presenting the main conclusions reached by the CDDH, I argue that a rather conservative approach regarding the framework of the ongoing reform process remains apparent. In other words, the CDDH’s primary focus is on sustaining the current status quo of the European Convention on Human Rights (ECHR) system while disregarding any other possible alternative reform outside this existing framework. In this regard, I question whether the current reform framework, and measures adopted within it so far, have been sufficient in addressing and/or resolving the underlying challenges facing the ECtHR. The post concludes that in the absence of a clear determination of what the future role of the ECtHR should be, in a way that best reflects its regional, supranational and subsidiary character, the root causes of the Court’s challenges will continue to be overlooked and its viability and long-term effectiveness will be difficult to achieve.

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Refusal to give access to ‘confidential’ information about politicians violated NGO’s Article 10 rights

By Ronan Ó Fathaigh and Dirk Voorhoof

On 26 March 2020, the European Court of Human Rights unanimously found that a refusal by the Ukrainian authorities to give a non-governmental organisation (NGO) access to information about the education and work history of top politicians as contained in their official CVs, filed as candidates for Parliament, violated the NGO’s right of access to public documents under Article 10 ECHR. The Court in Centre for Democracy and the Rule of Law v. Ukraine, highlighted that it was the first case from Ukraine on access to information since the Grand Chamber’s seminal 2016 Magyar Helsinki Bizottság v. Hungary judgment, and that it raised ‘novel’ issues for Ukraine’s authorities and courts. This judgment, delivered during the Covid-19 pandemic, clearly illustrates how important it is, more than ever, that the Court applies strict scrutiny under Article 10 in cases on access to public documents, recognising the importance of transparency on matters of public interest. Continue reading

Blog Symposium “Strasbourg Observers turn ten” (5): Daring to think – the spirit of human rights

By Marie-Bénédicte Dembour

Have the Strasbourg Observers really been running only for ten years? On receiving the invitation to celebrate this anniversary, my mind travelled back to the time before your emergence, and I felt rather isolated in my critical approach to the study of the European Court of Human Rights. Long before I joined Ghent’s Human Rights Centre last October, you have provided me – and no doubt others – with a sense of ‘home’. With this post I want to acknowledge my immense gratitude. I shall do so not by tracing the case law since Hirsi Jamaa and Others v Italy but by reflecting upon how my two posts on this case of 2012 were differently read. My point will be to highlight how the Strasbourg Observers have created an essential space for actively engaging and debating what the spirit of human rights might or should entail.

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The right to education in Transdniestria seven years after Catan and Others v. Moldova and Russia: are we there yet?

By Linda Hamid, Research Fellow at the Leuven Centre for Global Governance Studies – Institute for International Law, KU Leuven

On 4 December 2019, during a research stay in the Republic of Moldova, I travelled to the village of Doroțcaia, where I visited the ‘Ștefan cel Mare și Sfânt’ lyceum and met with the principal, Ms Eleonora Cercavschi. Until August 2002, the school had been situated in Grigoriopol, a small town in the Moldavian Republic of Transdniestria (MRT or Transdniestria), which is a breakaway region in Moldova that declared independence in 1991, but has not been recognized by the international community. However, in the wake of events that will be described below, the school was evacuated from its premises by MRT ‘police’ and forced to relocate 20 km away, in Moldovan-controlled territory. As can be gathered from this post’s title, the Grigoriopol lyceum is one of the Romanian-language schools in Transdniestria concerned by the landmark European Court of Human Rights (ECtHR or the Court) Grand Chamber judgment Catan and Others v. Moldova and Russia. Ms Cercavschi, who together with her daughter was one of the applicants in the case, graciously answered my questions and recounted the circumstances leading to the school’s predicament. This post is based on insights acquired from this discussion and a few other in-depth interviews with key actors in Moldova and Transdniestria, as well as an analysis of both legal and political texts.

In what follows, I will employ the Catan judgment to briefly illustrate the quandaries surrounding the (non-)execution of ECtHR judgments in circumstances as complex as those in Transdniestria, where various actors, State and non-state alike, vie for control and influence. Inside this tangled web, legally binding obligations arising from ECtHR judgments and political commitments extraneous to them may, at times, mutually reinforce each other to give some incidental effects to the former. This, however, does not transpire as traditionally envisioned by Article 46 of the European Convention on Human Rights (ECHR or Convention), i.e. through the execution of the judgment by the State bound by it, but rather indirectly, as a byproduct of two different but ultimately complementary processes. In referring to this byproduct, I will use the terms (indirect and partial) ‘implementation’ or ‘effects’. To me, they have a broader meaning than ‘execution’, in that they may also refer to the (persuasive) authority of the Court’s judgments and their influence on other actors than the State(s) directly bound to execute them, such as will be described in this post.

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Strengthening the supervision of ECHR derogation regimes. A non-judicial avenue

By Georgiana Epure

This contribution sheds light on the limited effectiveness of the European Court of Human Rights (ECtHR) in supervising states of emergency and highlights one possible non-judicial avenue to strengthen the supervision of derogation regimes: Article 52 of the European Convention on Human Rights (ECHR), which allows the Secretary General of the Council of Europe to open and inquiry into the effective implementation of the Convention. 

The derogation clause and the ECtHR’s limited supervisory role

An epidemic of authoritarian measures may be following on the heels of the COVID-19 pandemic, warned Fionnuala Ní Aoláin, the UN Special Rapporteur on counterterrorism and human rights. Across the Council of Europe membership, numerous countries have declared states of emergency in order to take unprecedented measures to tackle the COVID-19 pandemic. Continue reading

Blog Symposium “Strasbourg Observers turns ten” (3) – Gäfgen v. Germany: Some Reflections, Ten Years On

By Stijn Smet, Assistant Professor of Constitutional Law at Hasselt University

I was sitting on the grass outside a classroom at the University of Vienna when I first understood why notions like control, power(lessness) and vulnerability are central to the interpretation of the absolute prohibition of torture. It was a warm and sunny day in Spring, and Manfred Nowak had led us out of the classroom and onto the grass for one of his lectures. Nowak was UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment at the time, and we were enrolled in his university course on torture.

The two scenarios Nowak presented to us that afternoon, as we were sitting comfortably on the grass, decisively shaped my understanding of torture. Nowak asked us which treatment we would qualify as torture: a police officer shooting a suspect in the leg, from behind, as he was fleeing down the streets (in my recollection, it was the left leg); or that same police officer putting out a cigarette on the hand of a suspect in custody. Nowak’s intention was, of course, to encourage us to reflect on the essence of torture. He invited us to consider the idea that powerlessness of the victim and control by the authorities may be at least as important factors as the severity of the physical harm inflicted. Continue reading

What Can the European Court of Human Rights Do in the Time of Crisis?

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

In my previous blog post I have analysed what consequences the COVID-19 crisis might have on Human Rights enshrined in the European Convention on Human Rights. Here I will look at the institutional aspect of what the Strasbourg Court can do to ensure ongoing human rights protection in the face of the COVID-19 crisis. Unfortunately, my preliminary answer is not that much. The nature of the European Court of Human Rights as well as many other courts around the world is that they predominantly act post factum, in other words they assess the events after they have already taken place. That said, it is not impossible for the Court to get involved in the current affairs, even though the scope of such involvement is quite limited. In the following parts I will analyse what the Court can and should do in the current situation. Continue reading

Blog Symposium “Strasbourg Observers turns ten” (2): The Court’s subtle approach of online media platforms’ liability for user-generated content since the ‘Delfi Oracle’

Dirk Voorhoof (Human Rights Centre, Ghent University and Legal Human Academy)

On 18 June 2015, Strasbourg Observers published our blog postDelfi AS v. Estonia: Grand Chamber confirms liability of online news portal for offensive comments posted by its readers’. It situated and commented the Grand Chamber judgment of 16 June 2015 in the first case before the European Court of Human Rights on online media liability for user-generated content. In particular the application and impact of Article 10 ECHR was tested with regard to the liability of an online news portal for offensive (anonymous) comments posted by its readers below an online news article (see the Grand Chamber judgment in Delfi AS v. Estonia). The Grand Chamber, by fifteen votes to two, found the imposition of liability of the Estonian news portal justified and proportionate, in particular because the users’ comments had been extreme and had been posted in reaction to an article published by Delfi on its professionally managed news portal run on a commercial basis. The circumstance that Delfi had immediately removed the offensive content after having received notice of it, did not suffice to exempt Delfi from liability. Now this blog post, nearly five years after the final Delfi judgment, focusses on the impact of the Delfi case and gives a short overview of the further developments in the Court’s case law determining the scope of liability of internet platforms or other online intermediaries for user-generated content. Finally we refer to the initiative by the Committee of Ministers of the Council of Europe recommending the member states to respect and  apply a set of guidelines when implementing the legislative frameworks relating to internet intermediaries, including some principles guaranteeing users’ rights to freedom of expression in the online environment. Continue reading

The Court’s first ruling on Roma’s access to safe water and sanitation in Hudorovic et al. v. Slovenia: reasons for hope and worry

This blogpost is written by Valeska David who is an Affiliated Researcher at the Human Rights Centre of Ghent University and Assistant Professor of International Law at University of Navarra. She has recently published the book ‘Cultural Difference and Economic Disadvantage in Regional Human Rights Courts: An Integrated View’ (Intersentia, 2020).

On 10 March 2020, the Strasbourg Court delivered its judgment in Hudorovic et al. v. Slovenia (App. nos. 24816/14 and 25140/14). The case deals with two complaints from Roma families who have been living in informal settlements without access to water, sanitation, sewage, and electricity for decades. The Court has previously dealt with the living conditions of Roma irregular settlements (e.g. Winterstein and Yordanova) as well as with the contamination of water resources resulting in health and environmental risks (e.g. Dzemyuk and Dubetska). This is the first time, however, that it has to examine whether the right to access safe drinking water and sanitation is protected by the Convention (particularly under Article 8 ECHR). This important question is furthermore posed in relation to the social group most affected by inequality in access to water in the first European country to make water a constitutional right. The case understandably attracted third party interventions from the European Roma Rights Centre and the Human Rights Centre of Ghent University, the latter available here.

Access to clean water and sanitation might sound too basic to be an issue in today’s Europe. But the truth is that securing universal access to such essential goods continues to be a pending challenge, especially for Roma people. At a time in which the European Parliament and the Council are discussing the adoption of a so-called Drinking Water Directive,[1] the Strasbourg Court is being called to play its part. The Court can significantly contribute to develop common minimum standards to ensure that everyone, especially those historically discriminated against can effectively enjoy water rights in Europe. From this perspective, however, this post argues that the judgment in Hudorovic offers a mixed picture, one of both hope and worry. Before explaining why, I shall briefly summarise the facts of the case and the Court’s findings.   Continue reading

Positive Obligations in Crisis

Dr Natasa Mavronicola is Reader in Law at Birmingham Law School, University of Birmingham. She has written extensively on the right to life and the right not to be subjected to torture or to inhuman or degrading treatment or punishment. She is co-editor of Lavrysen & Mavronicola (eds), Coercive Human Rights: Positive Duties to Mobilise the Criminal Law under the ECHR, forthcoming with Hart Publishing (2020).

On the flip side of rights are wrongs. It is now indisputable that the State may wrong us as a matter of human rights law not only by actively mistreating us, but also by failing to protect us from certain harms. The European Court of Human Rights (ECtHR) boasts a formidable jurisprudence on positive obligations borne by States to protect persons within their jurisdiction from grave threats to our life or physical or mental integrity. It is important to understand and apply these appropriately to the current crisis, particularly as positive obligations to protect life are being actively invoked, in the context of the coronavirus pandemic, to justify extensive (coercive) measures across Council of Europe States.

In this short piece, focusing on positive obligations under the European Convention on Human Rights (ECHR), I want to underline the following: (a) the State bears positive obligations to protect, rather than coerce; (b) the State’s positive obligations do not extend to duties to act unlawfully under the Convention; and (c) positive obligations must be responsive to, and entail ancillary obligations to determine, the relevant context and risk. Continue reading

Grimmark v. Sweden and Steen v. Sweden: no right for healthcare professionals to refuse to participate in abortion services, and framing strategies by anti-abortion actors.

This blogpost was written by Niklas Barke, PhD Candidate, Institute for Human Rights, Åbo Akademi University

On the 11th of March, the European Court of Human Rights (the Court) issued its decisions in Grimmark v. Sweden and Steen v. Sweden, two cases casting light on the issue of refusal by healthcare professionals to participate in abortion procedures. The Court in these fairly straight-forward decisions rejected the Applicants’ complaints as manifestly ill-founded. Rather, the Court found the Swedish authorities’ decision to not employ midwives who refused to participate in abortion procedures complied with Article 9 of the European Convention on Human Rights (the Convention). These two cases are ground-breaking in that this is the first time that the Court decides on the issue of a purported right to refuse to carry out work duties in relation to abortion. Earlier cases relating to so-called conscientious objection have either related to other substantive issues, or been considered from the opposite perspective, that is, in relation to complaints that such refusal has impeded the possibilities to access legal abortion. Building on landmark cases such as R.R. v. Poland (2011) (blog posts here and here, P. and S. v. Poland (2012) (blog post here), Pichon and Sajous v. France (2001), Regner v. the Czech Republic (2017) (blog post here), Skugar and others v. Russia (2009), and Eweida and others v. the United Kingdom (2013) (blog posts here and here), the cases against Sweden follow the trajectory of previous case-law concerning abortion services, refusal to perform work duties, and the question whether there is a right to hold a certain work position. The Court also rejected the Applicants’ complaints under Articles 10 and 14 of the Convention, respectively. However, the focus of this comment will exclusively be on the decision under Article 9.

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States should declare a State of Emergency using Article 15 ECHR to confront the Coronavirus Pandemic

By Alan Greene

Carl Schmitt is, without a doubt, the pre-eminent scholar on states of exception. However, his famous maxim of ‘Sovereign is he who decides on the exception’ has tainted the debate on emergency powers, emphasising their antagonistic relation to the legal order they are supposed to protect and downplaying their protective potential. In this post, I argue why Article 15 of the European Convention on Human Rights (ECHR) should be used to accommodate the emergency lockdown powers necessary to confront the Coronavirus pandemic. This is the closest we shall get to an ‘ideal state of emergency’—the very thing it was designed for. In contrast, far from protecting human rights, failure to use Article 15 ECHR risks normalising exceptional powers and permanently recalibrating human rights protections downwards. Continue reading

An inch of time is an inch of gold – the time factor in child abduction related proceedings: Balbino v. Portugal

This post was written by Nadia Rusinova who is attorney-at-law and lecturer in International private law at The Hague University.

On 29 January 2019 the European Court of Human Rights (hereinafter: The Court) delivered its judgment on the case Simoes Balbino v. Portugal which addresses procedural delay in the context of the attribution of the exercise of parental authority in child abduction cases and the obligations of the state under Art. 8 ECHR. A key factor, in this case, is the time factor in proceedings related to child abduction, under the Hague Convention and in general in proceedings related to children. In the present case, the Court has ruled in a rather unexpected way on the issue of how the wrongful removal of the child should be assessed in a pending parental dispute, and in particular, is the child abduction a factor which determines the procedural behaviour of the domestic courts.

In its previous case law, the Court had said that a national court could not order the return of the child, or enforce a return order, if it had not considered the child’s best interests (Neulinger and Shuruk v. Switzerland, B. v. BelgiumSneersone and Kampanella v. Italy). Later, in X. v. Latvia,  the most recent judgment on this matter delivered by the Grand Chamber, the Court explained that the consideration of the child’s best interests did not mean a detailed assessment of the entire situation, but instead an obligation to ‘genuinely take into account factors that could constitute an exception to the return’ (under Arts. 12, 13 and 20 of the Hague Convention), in particular if one of the parties invoked these factors. In Adzic v. Croatia the Court adds that the assessment must be done speedily, which is in line with the goal of the Hague  Convention. Subsequently, in its most recent judgment in Rinau v. Lithuania, the Court finds that the time it took for the Lithuanian courts to reach the final decision in the applicant’s case, the Lithuanian courts had ‘failed to respond to the urgency of their situation’ and the delay of two years already amounted to a violation of Art.8. The view of the Court in this case offers some challenging turns to the aforementioned precedent – namely on the issue of time proceedings –which will be discussed further below.

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COVID-19 and the European Convention on Human Rights

By Prof Kanstantsin Dzehtsiarou (University of Liverpool)

Our life has changed. The main if not the only topic that everyone is interested in is the ongoing pandemic. The World Health Organisation is one of the most popular international organisations at the moment. This crisis will undoubtably have a significant impact on how we live, travel and perceive our governments. These long-term effects will clearly be a subject of numerous dissertations, articles and monographs. This blogpost will make a very brief overview of the role of the European Convention on Human Rights in assessment of this crisis. In recent days a number of states (for example, Georgia, Estonia, Armenia, Romania, and Latvia) submitted their derogations from the ECHR under Article 15. When the situation calms down it would be very interesting to analyse the exact wording and utility of these declarations. Here, I will start by considering implications of Article 15 to the situation at hand. I will then briefly analyse how other Articles of the Convention can be engaged in the COVID-19 crises. Of course, this is only a suggestion, the real impact of COVID-19 will be seen in 5-6 years when measures taken by the Governments now will be analysed in judgments of the European Court of Human Rights. Continue reading

N.D. and N.T. v. Spain: defining Strasbourg’s position on push backs at land borders?

By Hanaa Hakiki

On 13 February 2020, the Court published its long awaited Grand Chamber judgment in the case of N.D. and N.T. v. Spain, the first case addressing the Spanish policy of immediate expulsions at the Ceuta and Melilla enclaves. In a speech the Court’s president had announced that the judgment would be “instrumental to the issue of push backs” in Europe, the most “burning issue in European politics today” (M.A. v Lithuania; concurring opinion, §1).  Legally, the case of N.D. and N.T. addressed the applicability of the prohibition of collective expulsions to push backs at European land borders. The judgement has already been analysed in detail and widely criticised for its incompatibility with EU law, the principle of non-refoulement and Spain’s obligation to protect unaccompanied minors. Though the judgment brings in an entirely new approach, some have questioned the impact of the judgment on the Court’s approach to push backs more generally. This blogpost considers the application by the Court of its new approach in light of the factual evidence in the case, and whether this allows for any conclusions to be drawn as to  the broader impact of this judgment on the situation at European borders. Thus the blogpost will first assess the new legal test in light of the Court’s jurisprudence on the terms “genuine and effective.” and secondly how the new test was applied in this case. Third, the blogpost will look at how the Grand Chamber assessed evidence in this case. The final section explores the potential significance of this judgement. Continue reading

Studio Monitori and Others v. Georgia: access to public documents must be ‘instrumental’ for the right to freedom of expression

By Dirk Voorhoof and Ronan Ó Fathaigh

In the case of Studio Monitori and Others v. Georgia the European Court of Human Rights (ECtHR) in its judgment of 30 January 2020 has confirmed that the right to freedom of expression and information as guaranteed by Article 10 of the European Convention on Human Rights (ECHR) can only be invoked in order to obtain access to public documents when a set of conditions are fulfilled. It is one of the cases following the judgment of the Grand Chamber in Magyar Helsinki Bizottság v. Hungary to test the scope and limits of the right of access to information and the applicability of Article 10 ECHR. The most important consequence of the judgment in Studio Monitori and Others is that NGOs, journalists or other public watchdogs requesting access to public documents have to motivate and clarify in their request that access to the documents they are applying for is instrumental, and even necessary, for their journalistic reporting and that the requested documents contain information of public interest. Continue reading

The Future of the Rule of Law in Sports Law: Ali Riza and Others v. Turkey

This blogpost was written by Jernej Letnar Černič who is Associate Professor of Human Rights and Constitutional Law at the Faculty of Government and European Studies of the New University (Ljubljana/Kranj, Slovenia). He is co-author of the forthcoming book on “The Impact of European Institutions on the Rule of Law and Democracy: Slovenia and Beyond” (Oxford, Hart/Bloomsbury, 2020).

Are domestic and international sports arbitration bodies obliged to follow the rule of law and ensure at least basic procedural safeguards? Fair trial guarantees have been, for quite some time, a hot potato in (international) sports arbitration. Athletes have been, in the past, mostly unsuccessful when arguing for a violation of Article 6 (1) of the ECHR before the ECtHR (see for example Bakker v. Switzerland (26 September 2019, admissibility decision); Mutu and Pechstein v. Switzerland, 2 October 2018). Nonetheless, the Court already recognized the right to public hearings before CAS (Mutu and Pechstein v. Switzerland, para. 183). Therefore, it appears that a consensus has been increasing for fair trial guarantees to be introduced and/or strengthened both at the domestic and international levels. The Second Section of the European Court of Human Rights has on 28 January 2020 in its seminal judgement in the case of Ali Riza and Others v. Turkey confirmed the importance that sport arbitration bodies uphold basic fair trial guarantees in compulsory sport arbitration such as the right to an independent and impartial tribunal by introducing strict normative safeguards against conflicts of interests.

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Magyar Kétfarkú Kutya Párt (MKKP) v. Hungary: Technology meets freedom of expression and the rule of law in an electoral context

By Dr. Petra Gyöngyi (Postdoctoral fellow at the University of Oslo, member of Judges under Stress – The Breaking Point of Judicial Institutions)

On January 20, the Grand Chamber of the European Court of Human Rights (ECtHR) rendered a final decision in the case of Magyar Kétfarkú Kutya Párt (MKKP) v Hungary. The case concerned freedom of expression as guaranteed by Article 10 ECHR in an election context – in particular the use of a mobile application made available by a political party (MKKP) where voters could share an anonymous photo of their invalid paper ballots alongside political messages as a sign of protest against a national referendum. The National Election Committee imposed a fine on MKKP, giving rise to the question of whether there has been a violation of the political party’s freedom of expression. The Grand Chamber held that the legal rules that constituted the basis for imposing a fine on MKKP were insufficiently foreseeable for the purposes of Article 10(2), did not rule out arbitrariness in its application and did not enable MKKP to regulate its conduct. As such, the Court held that there has been a violation of Article 10 of the Convention.

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Cyberviolence, domestic abuse and lack of a gender-sensitive approach – Reflections on Buturuga versus Romania

By Fleur van Leeuwen (Boğaziçi University)

‘The legal system is designed to protect men from the superior power of the state but not to protect women or children from the superior power of men.’ It is a quote from Harvard psychiatrist Judith Herman in an article on domestic violence in the Guardian last weekend. The androcentric nature of international human rights law has been well documented.[1] Gender mainstreaming was championed in the 1990s as the approach to rectify this deficiency. But although some steps were taken – i.e. domestic abuse is no longer considered to be an issue that falls outside the realm of human rights – the jurisprudence of the European Court of Human Rights (the Court) on domestic violence shows that the required transformation of the system is not yet in sight.[2]

The case of Buturuga versus Romania of the Court of last February offers another classic example in this respect. Although the comments of the Court on cyber violence as an aspect of domestic abuse are noteworthy – the judgment at large is not. The most significant conclusion to be drawn from Buturuga versus Romania is that gender mainstreaming – or (consistently) applying a gender-sensitive approach – remains ostensibly still too difficult a task for the Court. Continue reading

Bulk retention of private-sector subscriber data for governmental purposes does not violate the Convention: Breyer v. Germany

Judith Vermeulen is a doctoral researcher and a member of the Law & Technology research group, the Human Rights Centre and PIXLES at Ghent University.

On January 30, 2020, in the case of Breyer v. Germany, the European Court of Human Rights ruled by six votes to one that the – legally required – indiscriminate storage of subscriber information by telecommunication service providers does not violate Article 8 of the European Convention on Human Rights. Amongst other things, the Court found that the interference at hand was rather limited in nature, thereby conveniently invoking Court of Justice jurisprudence which suited its point of view this time. Contrary to what judge Ranzoni argued in his dissenting opinion, the Court in Strasbourg was however not wrong in reaching this conclusion. The dissenter’s criticism regarding the insufficiency of the safeguards circumscribing the measure, on the other hand, was not without reasons. Continue reading

Who can represent a child (with disabilities) before the ECtHR? Locus Standi requirements and the issue of curator ad litem in L.R. v. North Macedonia

Dr. Gamze Erdem Türkelli is a Post-Doctoral Fellow Fundamental Research of Research Foundation (FWO) Flanders (File Number 12Q1719N) at the Law and Development Research Group, University of Antwerp Faculty of Law.

The NGO Helsinki Committee for Human Rights in Skopje (HCHR) brought a case before the ECtHR on behalf of L.R., an eight-year-old child with moderate mental disabilities, severe physical disabilities (cerebral palsy) and a speech impediment. L.R. had been in the care of state-run institutions since he was three months old. The NGO alleged that L.R. had suffered from ill-treatment and inadequate care in violation of Art. 3 of the European Convention. In 2013, North Macedonia’s Ombudsman visited a state-run institute and found L.R. tied to his bed, which subsequently gave rise to the NGO’s interest in his case. The Strasbourg Court unanimously held that there had been a violation of Art. 3 as L.R. had been placed in an institute that could not provide him with adequate or requisite care for his needs and had suffered inhuman and degrading treatment (L.R. v. North Macedonia, §95).This contribution does not focus on the substance of the case but addresses rather a procedural issue: the issue of the representation of a minor who is in a vulnerable situation before the European Court of Human Rights (ECtHR), raised by Judge Wojtyczek in his Partly Dissenting Opinion the case. Continue reading