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

Push backs of “badly behaving” migrants at Spanish border are not collective expulsions (but might still be illegal refoulements)

By Ruben Wissing (Ghent University)

On 13 February, the Grand Chamber rendered a long awaited judgment, meandering over more than one hundred pages, in the N.D. and N.T case on the push-back practices against migrants at the Moroccan-Spanish border fence surrounding the city of Melilla – the so-called devoluciones en caliente or ‘hot returns’ by the Spanish border police.  The Court did not qualify them as collective expulsions, thus acquitting Spain of having violated Art. 4 of Protocol No. 4. However, the specific circumstances of the case, as well as the absence of an examination of the principle of non-refoulement, have been ultimately decisive for the outcome of this case, thus restricting the extent to which the Court’s findings can be generalised to similar practices at the EU external borders. Continue reading

Tell me more, tell me more: the obligation for national courts to reason their refusals to refer to the CJEU in Sanofi Pasteur.

By Jasper Krommendijk (Radboud University, the Netherlands)

On 13 February 2020, the ECtHR found for the fourth time ever a violation of Article 6(1) ECHR for a failure of the highest national court to give proper reasons for its refusal to refer preliminary questions to the Court of Justice of the EU (CJEU) in Sanofi Pasteur. In 2014 and 2015, the ECtHR already determined a breach for a similar omission of the Italian Court of Cassation in Dhahbi and Schipani, while the Lithuanian Supreme Administrative Court was given a rap over the knuckles in 2019 in Baltic Master. This time it was the French Court of Cassation who took the blame in a claim for damages for bodily harm resulting from vaccination against hepatitis B. The company Sanofi Pasteur was found liable by lower French courts and appealed to the Court of Cassation. It unsuccessfully requested the Court to refer questions about the Product Liability Directive 85/374 and, more specifically, the obligation for the victim to prove the damage, defect and causal relationship between defect and damage. The Court dismissed the appeal whereby it explicitly noted that it did so without a need to refer. In this comment I will argue that this judgment shows once again the unpredictability and inconsistency in the case law of the ECtHR. What is needed is a Grand Chamber judgment as well as guidance from the CJEU to tell us more about the exact requirements for national courts. Continue reading

A picture of a same-sex kiss on Facebook wreaks havoc: Beizaras and Levickas v. Lithuania

Ingrida Milkaite is a PhD researcher in the research group Law & Technology at Ghent University, Belgium. She is working on the research project ‘A children’s rights perspective on privacy and data protection in the digital age’ (Ghent University, Special Research Fund) and is a member of the Human Rights Centre at the Faculty of Law and Criminology at Ghent University and PIXLES (Privacy, Information Exchange, Law Enforcement and Surveillance).

Two young men publicly posted a photograph of themselves kissing on Facebook. The post ‘went viral’ and attracted around 800 comments, most of which were hateful. Some of the comments featured suggestions to burn, exterminate, hang, beat, castrate, and kill the two men as well as gay people in general. The national authorities, while acknowledging that some comments were ‘unethical’, refused to launch a pre-trial investigation for incitement to hatred and violence against homosexuals. They considered that the couple’s ‘eccentric behaviour’ had been provocative and that launching an investigation in this case would be a ‘waste of time and resources’. The judgement in the case of Beizaras and Levickas v. Lithuania (Application no. 41288/15) was published on 14 January 2020. The ECtHR found a violation of Article 14 ECHR in conjunction with Article 8 ECHR, as well as a violation of Article 13 ECHR. Continue reading

The New Trial: Kafkaesque Punishment for Cooperation with the ECtHR

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

It has been discussed on various levels that weak enforcement of the ECtHR judgments is a major drawback of the whole system. The lack of political will of the governments of the Contracting Parties to the Convention to engage with the ECtHR and the Committee of Ministers is often deemed to be one of the key reasons for slow enforcement of judgments and limited impact of the ECtHR on the standards of human rights protection in Europe. One of the ways to ensure quick embeddedness of the Convention is to resort to friendly settlements where the state accepts the responsibility for an obvious violation and pays appropriate compensation. The Committee of Ministers supervises execution of these friendly settlements although not always to the maximum effect. Recently the Court has introduced a new mandatory period during the procedure in Strasbourg during which the parties should consider a friendly settlement. Apparently, Ukraine is the only Contracting Party to the Convention which opted out of this procedure for the reasons discussed below. Friendly settlement is a very useful tool especially in cases of repetitive routine violations. This blogpost will try to convey two key messages. First, that national politics can put a halt on effective implementation on human rights even through preventing friendly settlements. The ability of national politics to affect human rights is hardly an original point but the story that is happening now in Ukraine gave this point a new twist. Second, that the Council of Europe has responsibility to react when the reputation of the Court, its judges and decisions are undermined. Continue reading

Dutch Supreme Court confirms: Articles 2 and 8 ECHR require a reduction of greenhouse gas emissions of 25% by 2020

By Dr. Ingrid Leijten, Assistant Professor at the Department of Constitutional and Administrative Law at Leiden University

On December 20th of last year, the Dutch Supreme Court ruled in the case of Urgenda v. de Staat der Nederlanden, confirming the finding of the Court of Appeal that the State violates articles 2 and 8 ECHR if it does not reduce greenhouse gas emissions by 25% in 2020. Seconds after the live-streamed presentation of the summary of the judgment, online media in the Netherlands and beyond reported about this groundbreaking judgment: for the first time, worldwide, a court in a final judgment held a State accountable for not reaching certain climate goals – on the basis of human rights. The judgments of the District Court (2015) and the Court of Appeal (2018) had also received ample attention; their conclusions and argumentation have been both celebrated and criticized, and I will not try to summarize these discussions here. Neither will I provide a thorough analysis of the Supreme Court judgment in light of the case law of the ECtHR. The reason for this is that the ‘general interest character’ of Urgenda obstructs a straightforward comparison. Instead, I want to highlight what is interesting – as well as convincing – about the way the Supreme Court addresses the issue as a matter of human rights. I argue that the judgment provides a promising route, at least for some other climate cases, although it also raises questions about the role of human rights and the effectiveness of rights based climate litigation. Continue reading