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

‘Peaceful assembly’ and the question of applicability of Article 11

Beril Önder: PhD Candidate, University of Strasbourg (Institut de Recherches Carré de Malberg) and Ghent University (Human Rights Centre)

The case of Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia[1] concerned the conviction of two men for organising “mass disorder” in a political rally at Bolotnaya Square in Moscow on 6 May 2012. The rally was held to protest against the alleged ‘abuses and falsifications’ in the elections to the State Duma and the presidential elections. This political rally has been at the centre of several earlier cases dealt with by the European Court of Human Rights (ECtHR), such as Frumkin v. Russia,   Yaroslav Belousov v. Russia, Barabanov. Russia, Polikhovich v. Russia  and Stepan Zimin v. Russia. While, the previously examined cases had been brought by activists convicted of participating in the mass disorder at Bolotnaya Square, the applicants in the present case had been convicted of organising that mass disorder. Continue reading

Abdyusheva and Others v. Russia: a Sadly Missed Opportunity

By Valérie Junod and Olivier Simon

On November 26. 2019, the ECtHR issued a 6 to 1 judgment finding that Russia had not breached the right of the complainants when it denied them access to methadone and buprenorphine (these two medicines are hereafter abbreviated to M/B) for treating their duly diagnosed opioid dependence syndrome (ODS).

Out of the three applicants, only the complaint of Mrs. Abdyusheva was analyzed in full. Since the other two were no longer consuming opioids and were no longer in active treatment; the Court declared their complaint inadmissible, disregarding their risk to relapse in the future.[1] Continue reading

The Grand Chamber Judgment in Ilias and Ahmed v Hungary: Immigration Detention and how the Ground beneath our Feet Continues to Erode

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

The ECtHR has been for a long time criticized for its approach to immigration detention that diverts from the generally applicable principles to deprivation of liberty in other contexts. As Cathryn Costello has observed in her article Immigration Detention: The Ground beneath our Feet, a major weakness in the Court’s approach has been the failure to scrutinize the necessity of immigration detention under Article 5(1)(f) of the ECHR. The Grand Chamber judgment in Ilias and Ahmed v Hungary delivered on 21 November 2019 has further eroded the protection extended to asylum-seekers under the Convention to the point that restrictions imposed upon asylum-seekers might not even be qualified as deprivation of liberty worthy of the protection of Article 5. The Grand Chamber overruled on this point the unanimously adopted Chamber judgment that found that the holding of asylum-seekers in the ‘transit zone’ between Hungary and Serbia actually amounts to deprivation of liberty. Continue reading

Journalist and editor’s conviction for incitement to religious hatred violated Article 10

By Ronan Ó Fathaigh and Dirk Voorhoof

In Tagiyev and Huseynov v. Azerbaijan, the European Court of Human Rights unanimously held that the conviction and imprisonment of Azerbaijani journalist Rafig Nazir oglu Tagiye, and editor Samir Sadagat oglu Huseynov, for incitement to religious hatred, violated their right to freedom of expression under Article 10 ECHR. Both had spent over a year in an Azerbaijan prison, and shockingly, following his release, Tagiyev was stabbed to death in an attack in Baku while his case was pending before the European Court. Tagiyev’s wife has continued the proceedings over her husband’s conviction and imprisonment, proceedings that took more than 11 years before the European Court. Mrs. Tagiyev also has a separate case pending over her husband’s killing, claiming that the Azerbaijani government failed to protect his right to life, and that he was targeted over his journalistic activities (here). Continue reading

Spain: Does the Supreme Court judgment against Catalan leaders comply with human rights law?

By Massimo Frigo (Senior Legal Adviser of the International Commission of Jurists)

On 14 October, the Supreme Court (Tribunal Supremo) of Spain convicted 12 people in connection with their part in the organisation on 1 October 2017 of a referendum on Catalonian independence, that was conducted despite having been declared illegal by the Constitutional Court.

Nine of the twelve leaders on trial – including high-ranking Catalan government officials – were convicted, in addition to other offences of abuse of power and disobedience, of the more severe offence of sedition.

The verdict was much expected and was issued in a context charged with political tension and expectations in a country that has been polarized by very contrasting opinions on the claims of self-determination in Catalunya, the carrying out of the referendum on 1 October 2017 despite the Constitutional Court’s ruling about the lack of legitimacy of this consultation under the Constitution, and the fact that the voting process during the referendum was forcibly suppressed in many locations by the police, with credible reports of the use of unnecessary and disproportionate force in breach of Spain’s international law obligations. Continue reading

Osman Kavala v. Turkey: unravelling the Matryoshka dolls

By Emre Turkut (PhD Researcher at Ghent University and DAAD Visiting Fellow at the Hertie School in Berlin)

On 10 December 2019, the European Court of Human Rights (ECtHR or Court) delivered its much-awaited decision in the case of Osman Kavala v. Turkey, an application lodged by a human rights defender and philanthropist to challenge his arbitrary arrest and subsequent placement in pre-trial detention in relation to the Gezi Park events and the 15 July 2016 attempted coup. The application had been pending before Strasbourg since 8 June 2018. In line with its priority policy that has been previously implemented in the group of cases concerning detained journalists and academics in Turkey, the Court decided to grant priority to Osman Kavala’s case on 23 August 2018 and it was hence communicated to Turkey on 30 August 2018. In its judgment, the ECtHR found several violations (see below). Arguably, the finding of an Article 18 violation in conjunction with Article 5(1) (c), among other violations, is the most significant part of the judgment and yet comes as no surprise. Following the Court’s earlier ruling in Selahattin Demirtas v. Turkey, this makes it the second Article 18 case decided against Turkey, which adds to the steady evolution of the burgeoning case law (see, inter alia, the Grand Chamber’s Merabishvili v. Georgia). Continue reading

López Ribalda and Others v. Spain – covert surveillance in the workplace: attenuating the protection of privacy for employees

Fotis Bregiannis is a doctoral researcher in the field of European Labour Law at UCLouvain. He works at the social law department of the Centre for the Interdisciplinary Research in Law, Enterprise and Society (CRIDES) and is currently writing a doctoral dissertation on EU legal instruments imposing information-related obligations on MNEs (EWC Directive, 2014/95 Directive).

Argyro Chatzinikolaou is a doctoral researcher and a member of the Law & Technology research group and the Human Rights Centre at Ghent University. She is currently working on the research project “Minors and online sexual acts: a study of legal qualifications and regulatory approaches from a children’s rights perspective”.

In López Ribalda and Others v. Spain, a recent judgment delivered by the Grand Chamber, the European Court of Human Rights (hereinafter ECtHR or Court) held, by 14 votes to three, that Spanish supermarket employees who were covertly filmed by security cameras in their workplace, following suspicions of theft, had suffered no violation of Article 8 of the European Convention on Human Rights (hereinafter ECHR). The Grand Chamber ruled against the Chamber judgment of 9 January 2018 which had found a violation of the employees’ right to respect for private life accordingly. In fact, the Grand Chamber seems more eager to accept restrictions to the protection of workplace privacy, contrary to the more promising Grand Chamber judgment in Bărbulescu v. Romania (in which two years ago the Court had found a violation of Article 8 in the case of the monitoring of an employee’s electronic communications). Continue reading

Gender-based violence triggers differential treatment in housing benefit case

By Katarina Frostell, Project Manager and PhD Candidate, Institute for Human Rights, Åbo Akademi University, Finland

On 24 October 2019, the European Court of Human Rights delivered its judgment in J.D. and A. v. the United Kingdom, in the so-called bedroom tax case. In its judgment, the Court applied a discrimination analysis on the reduction of housing benefits involving two single mothers, whose housing benefits were reduced following a change in the national housing regulations. The applicants argued that they should be treated differently than the mainstream recipients of the benefit due to their special circumstances linked to disability and gender-based violence. In the second case involving gender discrimination, the Court found with five votes to two, a violation of Article 14 in conjunction with Article 1 of Protocol 1 on the right to property. The Court dismissed the claims of discrimination on the grounds of disability in the first case. Two judges submitted a partly dissenting opinion. Continue reading

Stuck in the middle with Papageorgiou: Missed or new opportunities?

Effie Fokas is a political scientist and a Senior Research Fellow at the Hellenic Foundation for European and Foreign Policy, Research Associate of the London School of Economics Hellenic Observatory, and member of the Henry Luce/Leadership 100 project on Orthodoxy and Human Rights (Orthodox Christian Studies Center, Fordham University). She was also Principal Investigator of the ERC-funded Grassrootsmobilise Research Programme, which was one of three interveners in the Papageorgiou case.

Introduction

On 31 October 2019, the European Court of Human Rights delivered its judgement on the case of Papageorgiou and Others v. Greece, thus adding to its rich case law to do with religious education. Papageorgiou concerns the claim of Greek parents and students that the Greek mandatory religious education and its exemption process violate their Art.2, Protocol 1 right to education in accordance with their own religious or philosophical convictions. The exemption right was limited only to students who are not Orthodox and who submit a formal ‘solemn declaration’ to this effect to their school. On this basis both families in the case also claim violation of their Article 8 right to respect for private life, their Article 9 right to freedom of religion, and the Article 14 prohibition of discrimination.

Continue reading

Pryanishnikov v. Russia: the production and distribution of erotic and pornographic material under Article 10 of the ECHR

Argyro Chatzinikolaou is a doctoral researcher and a member of the Law & Technology research group and the Human Rights Centre at Ghent University. She is currently working on the research project “Minors and online sexual acts: a study of legal qualifications and regulatory approaches from a children’s rights perspective”.

In Pryanishnikov v Russia, a case concerning the authorities’ refusal to grant the applicant a film reproduction license, the European Court of Human Rights (hereinafter ECtHR or Court) found a violation of the right to freedom of expression, as the only reason advanced by the domestic courts for the refusal of the relevant license had been based on mere suspicions rather than findings of fact. Moreover, the Court concluded that the authorities had failed to strike a fair balance between the right to freedom of expression and the need to protect public morals and the rights of others. Beyond the judgment itself and the finding of a violation of Article 10 of the European Convention of Human Rights (hereinafter ECHR), what merits attention is the elaborate concurring opinion delivered by Judge Pinto de Albuquerque on the regulation of pornography and the justification of restrictions of such material at a European and national level. Continue reading

Strasbourg Court’s new non-contentious phase – a tax on lawlessness?

Jessica Gavron, Legal, Director, European Human Rights Advocacy Centre, London

It is widely recognised that the European Court of Human Rights is under huge pressure to reduce its caseload, currently standing at almost 60,000 cases. To this end, the Court has been increasing the number of cases resolved by friendly settlements and unilateral declarations and in January this year started trialling a new compulsory 12 week non-contentious phase to its procedure. The intention behind this new phase is the early, expeditious and domestic resolution of cases, involving greater ‘burden sharing’ of the caseload with Contracting States. The friendly settlement of cases could justifiably lead to the resolution of many pending cases and has the potential benefit, with proper oversight, of allowing for more specific remedies than may be forthcoming from a final judgment. However, the implementation and conduct so far of this new phase has given human rights lawyers and applicants cause for serious concern. Continue reading

Denying journalist access to asylum-seeker ‘reception centre’ in Hungary violated Article 10 ECHR

By Dirk Voorhoof and Ronan Ó Fathaigh

In Szurovecz v. Hungary, the European Court of Human Rights has held that a refusal to grant a journalist access to an asylum-seeker ‘reception centre’ in Hungary violated his right to freedom of expression under Article 10 ECHR. The ECtHR emphasised that newsgathering, including ‘first-hand’ observation by a journalist reporting on a matter of significant public interest, is an essential part of journalistic research and press freedom. The ECtHR found that the public interest in reporting from certain locations is especially relevant where the authorities’ handling of vulnerable groups is at stake, and the presence of media is a guarantee that the authorities can be held to account for their conduct. Continue reading

Ilașcu: from contested precedent to well-established case-law

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

On 15 October 2019, the European Court of Human Rights delivered a judgment in the case of Grama and Dîrul v. The Republic of Moldova and Russia, whereby it found a violation of Art. 1, Protocol No. 1 and Art. 13 to the/of the Convention by the Russian Federation only. More specifically, the Court held that the seizure of the applicants’ cars and the imposition of fines on them by the authorities of the ‘Moldavian Republic of Transdniestria’ (the MRT or Transdniestria) and the lack of an effective remedy for the applicants to assert their rights in the face of the actions of the MRT constituted a breach of said Convention provisions. Transdniestria is a breakaway region in Moldova that declared independence in 1991 but remains unrecognized by the international community. Continue reading

A new chapter on the deportation of ill persons and Article 3 ECHR: the European Court of Human Rights judgment in Savran v. Denmark

By Dr. Mark Klaassen, Institute of Immigration Law, Leiden University

On 1 October 2019, in the Savran judgment the European Court of Human Rights (hereinafter: ‘the Court’) has applied the Paposhvili-test in cases involving the expulsion of migrants who fear to be the victim of a violation of Article 3 ECHR because a medical treatment is not available in the country of origin. See, for an analysis of the Paposhvili ruling, the blog post of Lourdes Peroni on this blog. The case involves the deportation of a Turkish man with a severe psychiatric condition from Denmark to Turkey. In this contribution, I will first briefly sketch the development of the case law of the Court in Article 3 ECHR cases involving medical treatment. After that, I will outline the facts of the present case and the ruling of the Court. In my analysis of the ruling I will question the feasibility of the Court’s position that the host state is required to obtain assurances from the country of origin that medical treatment is available for a particular patient. I will argue that in case serious doubts persist as to whether the required medical treatment is available and accessible, the returning state should simply refrain from deportation. My final argument is that the Court should have addressed the issue of the right to respect for private and family life under Article 8 ECHR, as I believe it would be helpful to receive more guidance in deportation cases of convicts who committed their crimes in a situation that they cannot (fully) be held accountable because of a psychiatric condition. Continue reading

ECtHR engages in dangerous “triple pirouette” to find criminal prosecution for media coverage of PKK statements did not violate Article 10

By Ronan Ó Fathaigh and Dirk Voorhoof

The European Court’s Second Section recently found that criminal proceedings against the owner and the editor of a newspaper for having published statements by the leader of a terrorist organisation were justified and did not violate the right to freedom of expression. The Court in Gürbüz and Bayar v. Turkey found that the newspaper’s article with statements by the leader of the PKK, Abdullah Öcalan, contained and implied a threat of resumption of violence. In its approach and finding no violation of freedom of expression under Article 10 ECHR, the Court itself made an assessment of the context and content of the article at issue, as the Turkish courts had restricted themselves to the finding of the illegal character of reproducing the statements of the PKK-leader as such, without further evaluating the necessity of the interference in a democratic society. Continue reading

Child protection and child-centrism – the Grand Chamber case of Strand Lobben and others v. Norway 2019

By Prof. Marit Skivenes, Centre for Research on Discretion and Paternalism (University of Bergen)

The backdrop for the Grand Chamber case, is the dissenting Chamber judgment of 2017 – Strand Lobben vs. Norway  – about a boy that had been adopted from foster care. Here, the Chamber concluded it had not been a violation of the mother´s right to respect for family life under Article 8 due to the Chamber’s strong emphasis on the child’s best interest and his de facto family situation, as well as his need for permanency. The dissenting minority of three judges argued for the importance of legal (de jure) bonds and the negative effects of cutting biological ties. In the Grand Chamber judgment, a majority of 13 judges concluded that Norway had violated the applicants’ right to family life on procedural grounds – not on the merits of adoption from care. By this, the Court bypassed a discussion on the tensions and challenges children´s strong position as right bearers implies for the traditional relationships between family and the state.

Although, the Grand Chamber judgement is a disappointment for some and a relief for others, I believe that from a child´s rights perspective there are three important messages that should be addressed: Continue reading

The protection of foster parents right to family and the best interests of the child

By Kartica van de Zon, assistant professor of Family Law, Leiden Law School, the Child Law Department

On 9 April 2019, the ECtHR delivered its judgement in the case V.D and others v Russia. The case concerned a seriously disabled boy who had been in the care of his foster mother for nine years. Typically in cases on long term foster care and adoption, parents complain about their loss of parental authority, or the fact that the child has not returned to their care. In this case, however, it was the foster mother who complained that the child did return to the care of his biological parents. This poses the Strasbourg Court with a difficult dilemma. On the one hand, the Court has often stated that the reunification of children and their parents is the primary goal of child protection measures. On the other hand, the family life between children and their foster parents also deserves protection under Article 8 of the Convention. Granting foster parents a right not to be separated from foster children might come in conflict with the primary goal of child protection measures. Thus how far does the protection of foster parents right to family life reach? Continue reading

Another turn of the screw – further restrictions for Hungarian applications to the ECtHR

This blogpost was written by Andras Kadar, attorney at law, Co-chair of the Hungarian Helsinki Committee

Two recent posts on this blog (one on the Mendrei case and one on the Szalontay decision) by Dániel A Karsai have described how the European Court of Human Rights (Court) – largely disregarding the Hungarian legal-political context and its own jurisprudence on the burden of proof concerning the effectiveness of remedies – has limited potential applicants’ access to the Strasbourg protection mechanism by declaring the Hungarian constitutional complaint an effective domestic remedy to be exhausted as a strong main rule.

With the inadmissibility decision handed down concerning application no. 22172/14, the Court has gone one step further on this road, mounting a procedural obstacle to seeking protection in Strasbourg that certain applicants coming from less privileged groups of society may not be able to overcome.  Continue reading

Burmych v. Ukraine two years later: What about restoral?

By Lize R. Glas, Assistant Professor of European law, Radboud University, the Netherlands

When the Court took the unprecedented decision to strike 12,143 repetitive cases out of its list in  Burmych and Others v. Ukraine on 12 October 2017, it added that it may reassess the situation within two years and restore the cases. As this date is approaching, this blog addresses the question whether the Court will and should restore these cases. For this purpose, I will outline what has happened in the execution process since Burmych, explain what restoration involves and discuss whether the principled and pragmatic reasons for striking out Burmych still apply and convince. This blog begins with a brief summary of the judgment and the events leading up to it. Continue reading

The importance of time in child protection decisions; a commentary on Haddad v Spain

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

On 18 June 2019 the European Court of Human Rights found a violation of Article 8 of the Convention in the case of Haddad v Spain. The main reason was that the Spanish authorities did not discharge of their positive obligations to facilitate reunification between the applicant and his daughter (who had been placed in care). The applicant was the child’s father who at the time of placement was suspected of domestic violence against his children and their mother. About one year and four months had elapsed by the time the applicant was legally able to contact his children. During this time, his youngest child (one year and a half old at the time) had been living with foster parents and the authorities were envisaging her adoption.

In addition to finding a violation, the Court called upon the Spanish authorities to re-examine the situation in light of the judgment. Thus, arguably the Spanish authorities are to endeavor to secure the applicant’s reunification with his daughter. Continue reading

Romeo Castaño: “meticulously elaborated interpretations” for the sake of prosecution

By Mattia Pinto, PhD Candidate at the London School of Economics, Department of Law

 On 9 July 2019, the Second Section of the European Court of Human Rights (ECtHR or the Court) delivered its judgement in Romeo Castaño v. Belgium, concerning Belgium’s failure to execute multiple European Arrest Warrants (EAWs) issued by Spanish authorities in relation to a suspected ETA terrorist. Extradition cases involving the ECtHR usually concern complaints of ill-treatment likely to occur if an individual is extradited to a country where human rights appear not adequately protected (see, e.g., Soering, Trabelsi, Othman (Abu Qatada) and Pirozzi). In the case here at issue, the situation is reversed: the applicants complained that Belgian authorities’ refusal to surrender would amount to a breach of their right to an effective investigation into their father’s murder. The Second Section accepted this complaint and ruled unanimously that Belgium had breached its procedural obligation to cooperate under Article 2 ECHR. It is the first time the Court has found a violation of the Convention because a State refuses to surrender an individual sought by an extradition request. The decision is interesting but also controversial in its attempt to engage with multiple and complex issues, involving the relation between the ECHR and EU law, positive obligations to prosecute human rights violations and the principle of non-refoulement in EAW requests. In my opinion, the Court tries but eventually fails to properly deal with these issues. Continue reading

Stoian v. Romania: the Court’s drift on disability rights intensifies

By Constantin Cojocariu

On 25 June 2019, the Court released an eagerly awaited judgment in the case of Stoian v. Romania, brought by a disabled child and his mother, who complained about the denial of the right to education. The Court, ruling as a Committee, rejected all claims, brutally ending an unprecedented litigation campaign on inclusive education that lasted a decade. While the judgment generated outcry among disability rights activists worldwide, it also displayed warning signs about procedural shortcuts taken by the Court and its approach to vulnerable applicants more widely. The judgment’s bottom line, that the fundamental rights of persons of disabilities are primarily a matter of resources that disqualifies them from protection under the Convention, is relatively unsurprising, though depressing and not befitting of a human rights court. What is more interesting is how the Court reached this verdict, by downgrading the case to the three-judge Committee level, by distorting the facts, by adopting the Government’s views wholesale and by refusing to apply meaningful scrutiny. In that sense, to some extent, what is lacking from the official record is more interesting than what was included. This is why an admittedly partisan account of the judgment such as the present one – I acted as the applicants’ co-counsel – may prove interesting to the readers of the Strasbourg Observers blog. Continue reading

Grand Chamber limits the scope of Article 3 for non-state ill-treatment

By Nicole Bürli, Human Rights Advisor of the World Organisation against Torture (OMCT)[1]

On 25 June 2019, coincidently the eve of the international day in support of victims of torture, the Grand Chamber of the European Court of Human Rights limited the scope of Article 3 ECHR. In the case of Nicolae Virgiliu Tănase v. Romania, the Court found that the investigations into a serious traffic accident were compatible with Articles 2, 8 and 6 ECHR and that Article 3 ECHR was not applicable. The latter finding is a change of jurisprudence as the Court stated that Article 3 (procedural limb) ECHR is only applicable to non-state ill-treatment if inflicted intentionally. This is problematic for a number of reasons and the subject of this post. Continue reading

Vladimir Ushakov V. Russia – The 1980 Hague Convention, the child’s best interests and gender biases

By Tine Van Hof, PhD researcher at the University of Antwerp

 On the 18th of June 2019, the European Court of Human Rights gave judgment in the case of Vladimir Ushakov v. Russia (application no. 15122/17). The Court held by six votes to one that there has been a violation of the applicant’s right to family life under Article 8 ECHR. The case concerns Mr Ushakov who sought the return of his daughter V. to Finland after the mother I.K. took her to Russia. The Russian court refused to order the return of the child and based this decision on Article 13(1)(b) of the Hague Convention on Child Abduction. The Court carefully applies the general principles that have emerged in its previous case law on international child abduction. In that respect, the case is not very noteworthy. However, the dissenting opinion of Judge Dedov, in which he is critical of the Hague Convention, invites for discussion. This post will in particular respond to what Judge Dedov has defined as “deficiencies” of the Hague Convention. Continue reading

Glaisen v. Switzerland : the Court still gives up on reasonable accommodation

By Morgane Ventura – PhD researcher at the Geneva University (UNIGE)

On 18 July 2019, the European Court of Human Rights published its inadmissibility decision in the case of Glaisen v. Switzerland, regarding the access of a disabled person to a cinema. Glaisen complained that the cinema company denied him the access to watch a movie that was projected in this one and only cinema in Geneva. Relying on its former case law the Court considers that access to a cinema is not a right and should not be imposed on private parties if there is not any domestic law forcing them to. Moreover, the Court relies on the Swiss authorities’ argumentation according to which the facts do not disclose any discrimination. In my opinion, the Court missed an opportunity to recognize a structural discrimination and to consolidate its case law about substantive equality by granting the right to have a reasonable accommodation. I first examine the decision of the Court and then link it to the notion of structural discrimination. I conclude my assessment with the notion of reasonable accommodation and its promises for the European human rights’ protection system, even though the Court misses a lot of opportunities to concretise it. Continue reading

A worrisome reasoning by the Strasbourg Court in a domestic violence case: Kurt v. Austria

By Zane Ratniece

On 4 July 2019, a Chamber of the European Court of Human Rights (‘Court’) delivered a judgment in Kurt v. Austria. The case concerned a disturbing situation of domestic violence, which escalated over time and ended with the killing of the applicant’s son by her violent husband. (para. 3) The Chamber found that the Austrian authorities had not breached their obligation under Article 2 (right to life) of the European Convention on Human Rights (‘Convention’) to protect the boy’s life from the criminal acts of his father. (para. 80)

This contribution opines that the reasoning by which the Chamber arrived at those conclusions is worrisome for its silence on the particular context of domestic violence and the vulnerability of the victims. Such approach does not sit well with more recent Court’s case-law which expressly acknowledges the particular context of domestic violence. Hence, Kurt risks questioning the progress made in the Court’s case-law and creating uncertainty as regards the standards to be followed in dealing with the widespread and complex phenomenon of domestic violence, requiring active State involvement. Continue reading

Brzeziński v. Poland: Fine over ‘false’ information during election campaign violated Article 10

By Ronan Ó Fathaigh

On 25 July 2019, the European Court of Human Rights delivered an important judgment in Brzeziński v. Poland, concerning a provision in Poland’s election law which allows a court, within 24 hours, to consider whether ‘untrue information’ has been published, and to issue an order prohibiting its further distribution. The European Court in Brzeziński unanimously held that a fine issued under the provision violated the right to freedom of expression, under Article 10 of the European Convention on Human Rights. Continue reading

Prohibiting Collective Expulsion in Melilla: What Should We Expect from the Upcoming Grand Chamber Decision?

Raoul Wieland studies law and social work at McGill University in Montreal, Canada. He is undertaking a work placement with Amnesty International’s Strategic Litigation Unit at the International Secretariat in London.

On 3 October 2017, the European Court of Human Rights released its judgment in the important case of N.D. and N.T. v Spain. Considering the upcoming Grand Chamber decision, it is worth re-visiting some of the important legal safeguards at issue in the Chamber judgment and as outlined by the third-party interventions brought by Amnesty International and colleagues and the Council of Europe Commissioner for Human Rights. Continue reading

Tasev v North- Macedonia: (blurry) dimensions and boundaries of the right to free self-identification

By Kristin Henrard, Professor of Fundamental Rights, Erasmus Law School, Rotterdam

On 16 May 2019 the European Court of Human Rights (ECtHR or the Court) delivered its judgement in Tasev v North Macedonia regarding the refusal of the authorities to change the ethnic affiliation of a judge in the electoral roll of judges.

The Court concludes to a violation of Article 8 ECHR because the interference would not have a basis in national law. There is indeed a problem with the foreseeability of the application of the invoked national law. However, the case particularly invites closer analysis of the right to free self-identification as protected by article 8 ECHR, more particularly the two dimensions of this right that can be distinguished (free self-identification pure, and free self-identification through the exercise of rights), their respective boundaries and the way in which these two dimensions interrelate.

It is argued that the Court fails to fully grasp the two dimensions of the right to free self-identification (and their interrelation), resulting in the mistaken identification of an interference with article 8 ECHR. Continue reading

A Bumpy Road to Strasbourg: Ups and Downs of the Ukrainian National Selection Process

By Dr. Kanstantsin Dzehtsiarou (University of Liverpool)

I have already written two blog posts on the issue of election of judges of the European Court of Human Rights in Ukraine here and here. To sum up, the election of the new Ukrainian judge meant to take place in December 2018, but the Ukrainian authorities have only opened the national completion in March 2019 which meant that the whole process is way behind the schedule. I was quite critical of the then proposed design of the competition as it did not comply with the recommendations of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe. Since then the Ukrainian authorities have completely reloaded this competition, changed the rules of the game and reached the pinnacle of the national selection – interviews of the candidates. Recent presidential elections and changes in personnel in presidential administration were perhaps the key reasons why the previous competition was stopped and a completely new procedure was designed. Apart from that, academic criticism and litigation initiated by leading Ukrainian lawyers helped to bury the old competition. The new procedure was promising but its practical application puts the legitimacy and fairness of the whole process in some doubt. Continue reading

Parental Child Abduction is back on the agenda of the European Court of Human Rights

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

Parental child abduction has been a frequent occurrence for the European Court of Human Rights with the case of O.C.I. and others v Romania being the latest in a series of more than 70 applications. The Court decided these cases in several formations, ranging from the Grand Chamber, to the Chamber and most recently to the Committee of three judges. These formations are indicative of the importance the Court attaches to the issues raised by parental child abduction cases. On the basis of O.C.I. and Others v Romania, we could thus infer that child abduction has become a matter of well-established case law which does not require a too detailed analysis.[1] This may well be the perspective of the ECtHR, however, child abduction is anything but well-established case law[2] and it is precisely in these cross border cases that the Court can and should make a significant contribution in standard setting.

It is for this reason that I have decided to write this blog post. I argue that the Court – and human rights practitioners in general – need to be alert of the difficulties that cross border cases raise for individuals. In these cases, domestic courts of one country are expected to defer the analysis of the merits of the case to the domestic courts of the other country. In the midst of such deferral, and because there is no supranational supervision (other than that of the ECtHR), there is a risk of lower or no protection for human rights. Therefore, dispensing with this case in a Committee of three judges does not do justice to the many complexities raised by child abduction cases. I argue that the case of O.C.I. and others v Romania is one example where, in my opinion, there is more at stake than what the Court makes of it. Continue reading

A and B. v. Croatia and the concurring opinion of Judge Wojtyczek: the procedural status of the ‘disappearing party’

Claire Loven – PhD researcher at the Montaigne Centre for Rule of Law and Administration of Justice (Utrecht University)

On 20 June 2019 the European Court of Human Rights (ECtHR or Court) delivered a judgment in A and B. v. Croatia on the investigation of allegations of child sexual abuse. A, the mother of B, accused B’s father of sexually abusing the four-year-old B. After the Croatian State Attorney’s Office decided against prosecuting the father, finding that it could not conclude that C had committed any prosecutable offence, A and B lodged a complaint before the Court. They complained about the failure of the Croatian authorities to provide a proper response to allegations of child sexual abuse. By four votes to three the Court found that there had been no violation of the procedural aspects of Article 3 (prohibition of torture) and Article 8 (right to respect for private and family life). The sharp division within the Chamber is not only reflected in the bare majority vote on the outcome, but also in the fact that, together, the concurring and dissenting opinions are just as long as the Court’s judgment. The joint concurring opinion by Judges Koskelo, Eicke and Ilievski and the joint dissenting opinion by Judges Sicilianos, Turković and Pejchal focus on the scope of the case, whilst Judge Wojtyczek raises the issue of the father not having a role in the Court’s proceedings. In this blogpost, I leave the issues raised by Koskelo et al. and Sicilianos et al. for other commentators, and focus on the particular issues raised by Wojtyczek. Continue reading

A Court Divided: discord and disagreement in Rola v. Slovenia

This post was written by Bas van Bockel, Senior Lecturer of EU law, at Utrecht University.

In a judgment delivered on June 4 by the 4th Chamber of the ECtHR, no less than 3 separate opinions – both partly dissenting and partly concurring – were delivered by 5 of the 7 judges sitting on the case. The facts of the case appear unremarkable, making it all the more surprising that the judges ostensibly found it so difficult to reach agreement between them. What is particularly concerning is that the Court appears to disagree fundamentally on one of the most well-established doctrines from its own case law, the Engel doctrine. The result is puzzling, and raises the question of how the national judiciary can be persuaded to follow the case law of the ECtHR if the Court itself appears so divided on its proper interpretation and implications. Continue reading

Russia left, threatened and won: Its return to the Assembly without sanctions

By Lize R. Glas, Assistant Professor of European law, Radboud University, the Netherlands

The background story: The Assembly takes action

As has been recounted on this blog and on other blogs already (see here and here as well), the Parliamentary Assembly of the Council of Europe (Assembly) and Russia have been in a row ever since the Assembly suspended the voting rights and some other rights of the Russian delegation in April 2014 (see also here). The Assembly took this measure because of, inter alia, Russia’s annexation of Crimea. In response, Russia has not submitted the credentials of its delegation since 2016. Moreover, Russia suspended its payment to the Council of Europe.

These events have not only led to serious financial consequences for the Organisation (by the end of 2019, Russia will have a debt of 90 million euros), but have also led Russia to question the binding nature of the European Court of Human Rights’ (Court) judgments, considering that it has not participated in the election of most of the Court’s current judges. To make things even worse, Russia has threatened to leave the Council of Europe if it would not be permitted to participate in the election of the new Secretary General during the June 2019 session (see also here). Russia has made its return to the Assembly conditional on the Assembly removing from its Rules of Procedure the provisions concerning the challenging of credentials and the imposition of sanctions. As a result of these events, the Council of Europe is now in a ‘deep political and financial crisis’. Continue reading

G.K. v. Belgium: Post-electoral Disputes of a Political Nature Once Again in the Spotlight

By Julian Clarenne (PhD researcher at the Centre interdisciplinaire de recherches en droit constitutionnel et administratif, Université Saint-Louis Bruxelles)

On 21 May 2019, the European Court of Human Rights delivered an awaited judgment in G. K. v. Belgium on the competence of elected assemblies in post-electoral disputes. It found that the Belgian State had violated Article 3 of Additional Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the right to free elections. The reason was that one of its parliamentary assemblies (the Senate) did not offer, at least in the circumstances of the case, sufficient procedural guarantees against arbitrariness in the context of reviewing the validity of the resignation of one of its members. In that judgment, the Court also ordered Belgium to pay the applicant EUR 5,000 by way of just satisfaction for compensation in respect of the non-pecuniary damage, in addition to EUR 30 000 in costs and expenses. While this judgment is in line with the Court’s previous case-law on the right to free elections, it misses the opportunity to increases the pressure on national legal systems which, like Belgium, still confer the competence of post-electoral disputes to parliamentary assemblies. It is nevertheless unsurprising that the Court preferred to just settle the dispute at stake without drawing general conclusions, as it is in the line with its inclination to “judicial minimalism”. Continue reading

How many judgments does one need to enforce a judgment? The first ever infringement proceedings at the European Court of Human Rights.

By Kanstantsin Dzehtsiarou (University of Liverpool)

The Grand Chamber of the European Court of Human Rights (ECtHR) delivered its first ever judgment in an infringement procedure request (under Article 46-4 ECHR) in the case of Mammadov v Azerbaijan. The applicant in this case was an opposition leader from Azerbaijan who was put in prison contrary to Articles 5-1c and 18 ECHR. The Court confirmed that acquittal of the applicant was the only individual measure capable to remedy this violation. In so doing, the Court has effectively made the only decision that was politically plausible, namely it agreed with the Committee of Ministers that the judgment in the first Mammadov case was not executed properly. I have argued that this was the only possible solution in my previous blog post on the issue. The Court made it clear that the Committee of Ministers has quite broad competencies in interpreting the judgments of the ECtHR. Başak Çalı has written a good blog post analysing the substance of this decision. So, to avoid repetition I am going to focus on a few points which I found important not only for this judgment in particular but also for the future of the procedure pursuant to Article 46-4 ECHR if the Committee of Ministers ever requests a new judgment. Continue reading

Extremist view on subsidiarity and on exhaustion of domestic remedies? Criticism of the decision Szalontay v. Hungary

By Dr. Dániel A. Karsai, attorney at law, Dániel Karsai Law Firm

The Commissioner of Human Rights of the Council of Europe recently issued a report following her visit to Hungary where she made the following rather astonishing statement: “Human rights violations in Hungary have a negative effect on the whole protection system and the rule of law. They must be addressed as a matter of urgency”. The Commissioner voiced serious concerns over the impartiality of the judiciary (including the Hungarian Constitutional Court – hereinafter: CC), rights of migrants, gender equality and the systemic harassment of civil society.

This report gives topicality to the present blogpost which is the continuation of the post written about the Mendrei v. Hungary admissibility decision. In Mendrei, the Court declared one of the three types of the Hungarian constitutional complaint – the actio popularis – an effective remedy to be exhausted before turning to Strasbourg. In my Mendrei post I raised serious concerns about the Court’s new approach on the exhaustion of domestic remedies, in particular, the shift of the burden of proof from the Government to the applicants and that the Court completely disregards the legal and factual context in which the CC operates. To my biggest regret, the Court followed the course it started in Mendrei and in the recently adopted Szalontay v. Hungary admissibility decision finished the job: it fully declared the Hungarian constitutional complaints an effective remedy to be exhausted before turning to the ECHR. In the present post, I will argue that the Court’s view on domestic remedies is not just simply erroneous and disconnected from the Hungarian realities but seriously endangers the effective protection of human rights by establishing rather unforeseeable standards for the applicants that will be almost impossible to meet.

Continue reading

Kablis v. Russia: prior restraint of online campaigning for a peaceful, but unauthorised demonstration violated Article 10 ECHR

This blogpost was written by Ronan Ó Fathaigh and Dirk Voorhoof

On 30 April 2019, in Kablis v. Russia, the European Court’s Third Section unanimously found that the blocking by Russian authorities of an activist’s social networking account and entries on his blog had breached his right to freedom of expression under Article 10 ECHR. The applicant, Grigoriy Kablis, had called for participation in a ‘people’s assembly’ at a square in Syktyvkar, the capital of the Komi Republic. However, the local authorities had already refused Kablis’ request to organise a public event at that venue, and had proposed another specially designated location for holding such public events. Apart from finding the blocking orders a breach of Article 10 ECtHR, the ECtHR also found a violation of Kablis’ right to freedom of peaceful assembly as guaranteed by Article 11 ECHR and of this right to an effective remedy under Article 13 ECHR. This blog concentrates on the blocking measures as a form of prior restraint, banning ‘illegal material’ from the Internet.

Continue reading

The discovery in flagrante delicto, the Kafkaesque fate of a Supreme judge and the Turkish Constitutional Court: The Alparslan Altan case in Strasbourg

By Emre Turkut, PhD researcher at Ghent University

On 16 April 2019, the Second Section Chamber of the European Court of Human Rights (the ECtHR) delivered a long-awaited decision in the case of Alparslan Altan v. Turkey, an application lodged by a former judge serving on the Turkish Constitutional Court (TCC) to challenge his arbitrary placement in pre-trial detention in the aftermath of the 15 July 2016 attempted coup. The application was pending in Strasbourg since 16 January 2017. In its judgment, the ECtHR found that the applicant’s initial pre-trial detention was not lawful within the meaning of Article 5/1 of the European Convention on Human Rights (ECHR) and was not based on reasonable suspicion that he had committed an offence under Article 5/1 (c) ECHR. Continue reading

Election of the ECtHR Judge in Ukraine: from bad to worse

By Kanstantsin Dzehtsiarou (University of Liverpool)

As I have predicted in my previous blog post on this issue, the campaign for election of a judge in Ukraine has already proved to be a good case study illustrating the challenges that the Council of Europe institutions have to confront. These challenges now mainly result from poor national practices which might lead to suboptimal lists of nominees which in turn have to be rejected by the Council of Europe. These rejections always lead to delays in appointment of new judges for the Court. Luckily, the ECHR does not have the rule that the judge whose term is over cannot sit on the bench. Otherwise, these delays could have been effective in sabotaging the work of the Court. In any event, it is already fair to say that the Ukrainian national selection procedure reflects very bad national practices. On 4 March 2019 the president of Ukraine established an ad hoc selection committee; last week (week commencing on 22 April 2019) it announced the competition. The details of these announcements suggest that the Ukrainian authorities aim to limit the possible pool of candidates as much as possible in order to avoid real competition. Continue reading

Suspicionless Stop and Search Powers at the Border and Article 8: Beghal v United Kingdom

By John Ip, University of Auckland Faculty of Law

On 28 February 2019, the First Section Chamber of the European Court of Human Rights (ECtHR) delivered its decision in Beghal v United Kingdom, a de facto appeal from a 2015 UK Supreme Court decision concerning the question of whether Schedule 7 to the Terrorism Act 2000 was incompatible with various rights under the European Convention on Human Rights. The ECtHR concluded unanimously that the applicant’s right to respect for private and family life under Article 8 had been infringed. Continue reading

What future for settlements and undertakings in international human rights resolution?

By Nino Jomarjidze and Philip Leach

Resolving problems through settlements and by eliciting undertakings from governments has become a significant feature of the Strasbourg landscape. At the European Court of Human Rights (the Court), the use of friendly settlements (agreed confidentially between the parties) has been on the increase. So too, for ‘unilateral declarations’ (UD) which are utilised by the Court to resolve cases on terms put forward by the government, and which are deemed acceptable by the Court, even in the absence of agreement from the applicant. In 2018, more than 3,000 cases were resolved either by settlement or by UD, a 34% increase from the previous year. Within that figure, the number of priority cases resolved in this way more than doubled in the same period. Indeed, in 2019 the ECtHR is trialling a new non-contentious phase in its proceedings, which means that when a government is notified of a case, the parties will have an initial 12 week friendly settlement phase, followed by a 12 week contentious phase. More than that, the Court registry will itself usually make a friendly settlement proposal setting out suggested terms.

Such alternative forms of dispute resolution have been relatively under-explored and deserve further scrutiny. A common feature of both friendly settlements and UDs is that governments will provide undertakings to take remedial steps, which become binding under international law. Their significant potential is reflected in the fact that such undertakings can go further than the ECtHR itself would go in its judgments. But whose job is it to assess whether an undertaking has been met, and what happens when governments do not comply? The Committee of Ministers (CM) has a supervision role vis-à-vis friendly settlements, but will rarely monitor UDs – only when they are incorporated into a judgment of the Court, rather than a decision. Continue reading

Election of Judges of the European Court of Human Rights: Ukraine, the Beginning

By Kanstantsin Dzehtsiarou (University of Liverpool)

Election of judges is crucially important for the legitimacy, reputation and authoritativeness of the European Court of Human Rights (ECtHR). The Court needs leading academics and practitioners not only to come up with well-drafted and reasoned judgments but also to ensure that these judgments are then embedded into the national legal systems of the Contracting Parties to the Convention. The role of the national judge therefore includes education and dissemination of the core principles and values of the Convention in their home countries. When these principles are presented by a well-respected professional, their weight increases exponentially. In order to choose the best candidates the selection procedure should be clear, transparent and based on merits of the candidates. This post is the first one of a series of posts, spread over the coming months, which will be looking at the selection procedure that commenced last week in Ukraine. In these posts, I will try to use the developments in Ukraine to illustrate the challenges that the Council of Europe and its Member States face in that regard. Continue reading

X v. FYROM: A circumspect compromise on trans* rights?

This post was written by Mariam Gaiparashvili and Sarah Schoentjes, Master students at the Human Rights Legal Clinic, Ghent University

In X v. FYROM, the ECtHR confirmed the Member States’ positive obligation under Article 8 ECHR to establish a clear legal procedure for gender recognition. Disappointingly, however, it refused to examine the applicant’s claim that mandatory sex reassignment surgery as a requirement for gender recognition also violated Article 8. From the dissenting opinion of Judges Pejchal and Wojtyczek, it is clear that this application crystallised core disagreements within the Court on its interpretation methods and its role toward the Member States. Unfortunately, trans* persons bear the brunt of this conflict, as it seems to have led the Court to be very circumspect in this case, denying trans* persons much-needed clarity and protection. Continue reading

H.A. and others v. Greece – restrictive acknowledgement of irregular migrant vulnerability

By Elina Todorov, PhD Candidate, Tampere University (Finland)

On 28. February 2019 the European Court of Human Rights (ECtHR) delivered a judgement concerning unaccompanied minors in an irregular situation, namely H.A. and others v. Greece.  In H.A. the Court found several violations of the Convention, in particular a partial violation of Article 3 regarding the living conditions of the applicants (prohibition of inhuman or degrading treatment), a violation of Article 13 (right to an effective remedy, taken together with Article 3) and also violations of Article 5 § 1 and 5 § 4 (right to liberty and security, right to a speedy decision on the lawfulness of a detention measure). The case stands well in line with the Court’s previous case law concerning irregular migration. In H.A., the Court regarded that the authorities’ conduct caused a situation in which the national authorities had not succeeded in protecting the applicants who were unaccompanied foreign minors in an irregular situation. In line with its established case law, the Court recognized that minors – or in other words children – in an irregular situation are to be regarded as a vulnerable group mainly due to the fact that they are children (rather than because they are irregular migrants). However, as will be argued in this blog post, the Court thereby failed to adequately recognize the vulnerability resulting from the applicants’ irregular residence status. Continue reading

Petukhov v. Ukraine No. 2: Life Sentences Incompatible with the Convention, but only in Eastern Europe?

Lewis Graham is a PhD Student at Pembroke College, University of Cambridge.

Life sentences – that is, indefinite detention without any opportunity for release – is a thorny issue, and the involvement of the European Court of Human Rights in this field, particularly in cases concerning the United Kingdom, have recently courted great controversy. After a relatively quiet period, the Court has recently handed down a new judgment on these sentences – the first in two years – this time concerning Ukraine.

Like a number of other European states, Ukraine operates a fairly strict regime when it comes to life sentences. Any prisoner serving such a sentence who seeks release must rely on one of two routes to obtain it: they must prove that they have a serious, life-threatening illness or rely on a presidential clemency mechanism. The applicant in Petukhov v Ukraine (No 2), handed down 12 March 2019, challenged the Convention-compatibility of this scheme, in light of current case-law which suggests that life sentences will breach Article 3 ECHR if they do not include some “real prospect of release” (see e.g. cases against the UK, France, Hungary and many others).

It is well-established that allowing the vacation of a sentence on grounds that the prisoner is suffering from a serious illness is not, in itself, a legitimate mitigation of a sentence. Thus,  the main focus of the case at hand was the clemency route. The Court therefore analysed whether the applicant in this case had at his disposal a real “prospect of release” through the opportunity to obtain presidential clemency. Ultimately, it found that he did not, and found that Ukraine had breached Article 3 as a result. Continue reading