R.B. v. Estonia: The ECtHR calls for less strict procedural rules for children’s testimony

By Elena Patrizi, PhD Candidate at the Faculty of Law and affiliated with the Centre for Children’s Rights Studies, University of Geneva, Switzerland  

On 22 June 2021, the Third Section of the European Court of Human Rights (hereinafter: ECtHR) released its judgment on the case of R.B. v. Estonia, a case concerning the effectiveness of a criminal investigation into allegations of sexual abuse of a 4-year child by her father. The case was brought before the ECtHR by the child, R.B., who alleged a violation of her rights under Articles 3 (Prohibition of torture) and 8 (Right to respect of private and family life) of the European Convention of Human Rights (hereinafter: ECHR). The father, the alleged perpetrator, was acquitted by the Estonian Supreme Court, which excluded decisive evidence on the ground that it was obtained in breach of procedural rules.

The ECtHR established that the Estonian justice system failed to be child-friendly as it did not take into account the child’s particular vulnerability and corresponding needs. On the contrary, it strictly applied the rules concerning the children’s testimony, which do not distinguish between children and adults. This resulted in a violation of the two provisions. As I will argue in this blog post, the judgment is important for reminding the contracting states that, although they have the difficult task of dealing with very sensitive cases, they can adequately protect the rights and needs of children through an effective child-friendly justice system.

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J.L. v. Italy: A survivor of trivictimisation – Naming a Court’s failure to fully (recognize and) acknowledge judicial gender-based revictimisation

By Margarita S. Ilieva, a strategic equality/human rights litigator with extensive experience in  negative stereotyping.

The violent misogyny case of J.L. c. Italie (27.05.2021) is one of few in which the Court expressly addressed revictimisation (neglectful/actively injurious treatment of a survivor by those expected to address the original harm). Prior cases whereby this concept was integrated in Convention law include N.Ç. c. Turquie (9.02.2021) and A and B v. Croatia (20.06.2019). In Y. v. Slovenia (28.05.2015), the Court dealt with protection against repeat victimization (by the original perpetrator), not yet incorporating ‘secondary victimisation’ (by insufficiently heedful domestic judges).

The earlier cases concerned (severe) sexual predation of girl children. In the high-profile J.L., it was a young woman who survived gang-abuse. An art. 8 violation was found, since the appeals court’s reasons for acquitting the accused were sexist. The Court termed this ‘secondary victimisation’ breaching the State’s positive duties.

Yet, did the Court robustly address J.L.’s multi-layered revictimisation? Let’s examine the Court’s credibility on behalf of a woman, to return the gesture to tiers of (male-dominated) judges preoccupied with (de)constructing the victim’s credibility. The ECtHR judges (who problematized J.L.’s credibility) are predominantly male. Conversely, two out of three at the appeals court were women – a bleak symptom of internalized patriarchy.

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Valdís Fjölnisdóttir and Others v Iceland: cross-border surrogacy and foster care. What about the best interests of the child?

By Dr Marianna Iliadou, Teaching Fellow in Medical Law and Ethics at Durham University, UK.

On 18 May 2021, the Third Section of the European Court of Human Rights (ECtHR or the Court) delivered a judgment on the contested issue of non-recognition of the parent-child relationship for a child born through cross-border surrogacy. Surrogacy is the practice where a woman (surrogate) carries and gives birth to a child for someone else.

Valdís Fjölnisdóttir and Others v Iceland gave the Court the opportunity to rule on the refusal of parentage recognition where no intended parent is genetically related to the child, but the child is under their foster care. The Court found no violation of Article 8 ECHR (private and family life), because based on the foster care arrangements there were no actual, practical hindrances in the enjoyment of family life, while given the same (in principle) nature of the complaint under private life it did not see any reason to depart from the above conclusion. Lastly, the Court did not engage with the claim under Article 14 (non-discrimination) and rejected it as manifestly ill-founded.

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Much Ado About Mass Surveillance – the ECtHR Grand Chamber ‘Opens the Gates of an Electronic “Big Brother” in Europe’ in Big Brother Watch v UK

By Dr Eliza Watt, researcher in cyber law, lecturer in law, Middlesex University, London, UK.

On 25 May 2021 the Grand Chamber (GC) of the European Court of Human Rights (ECtHR, the Court) handed down its much-anticipated decision in Big Brother Watch and Others v the UK (Big Brother Watch). The case is of vital importance for the future of the Council of Europe (CoE) member states increasingly relying on mass surveillance regimes because it condones their overall utility as a means of fighting serious cross-border crime and terrorism. It also lays down for the first time new procedural safeguards that all CoE domestic surveillance legislation must adhere to henceforth.

Ostensibly a victory for privacy advocates, the judgment represents a salient high water mark in achieving almost exactly the opposite. This is because it acquiesces not only to the European governments’ quest for greater securitisation, but also cements divergent levels of protection from unwarranted state intrusion based on whether the intercepted material is domestic or foreign in nature, thereby setting out separate standards for targeted and bulk interception of communications. In its earlier case-law on bulk interception of communications when considering the legality of domestic surveillance measures in Roman Zakharov v Russia and Szabó and Vissy v Hungary,  the ECtHR not only challenged their compatibility with Convention rights, but also set out a stringent requirement for the existence of ‘reasonable suspicion’ against a citizen before the surveillance can be authorised. Conversely, in its 2018 Centrum för rättvisa v Sweden (Centrum) and Big Brother Watch Chamber judgements the Court embraced the utility of bulk interception of foreign communications (or strategic surveillance) proclaiming that it constitutes ‘a valuable means to achieve the legitimate aims pursued, particularly given the current threat level from both global terrorism and serious crime’ (para 386 Big Brother Watch 2018).

The purpose of this post is to discuss how the Grand Chamber’s Big Brother Watch findings impact privacy rights and in what way they contribute to the bifurcation of legal standards between domestic and foreign surveillance. To this end, it first briefly outlines the previous ECtHR stance on states’ strategic surveillance as set out in its earlier case law. It then offers a quick reminder of the 2018 Big Brother Watch and Centrum judgements to finally highlight a number of crucial aspects of the GC’s appeal in the former case.

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Anti-vaxxers before the Strasbourg Court: Vavřička and Others v. the Czech Republic

By Katarzyna Ważyńska-Finck, PhD researcher at the European University Institute and
a former assistant lawyer at the European Court of Human Rights.

Compared to our ancestors, we are lucky to have at our disposal safe and effective vaccines against illnesses such as polio, measles or hepatitis B. To ensure that the number of immunized people is high enough to prevent diseases from spreading, some governments make vaccinations compulsory. This is especially the case for childhood vaccination schemes. However, some parents who oppose to having their children vaccinated against these illnesses are ready for lengthy legal battles to challenge the mandatory vaccinations as violating their human rights. In a recent judgment the European Court of Human Rights refuted the applicants’ claim that the Czech compulsory vaccination programme violated their Convention rights.

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The right to privacy used as a modern pillory in L.B. v. Hungary

By Liesa Keunen, PhD researcher at Ghent and Antwerp University, Belgium. Liesa Keunen is working on the research project ‘Tax audits on big data: exploring the legitimacy and limits in light of the prohibition of fishing expeditions’ (Ghent & Antwerp University, FWO). She is also a member of the research group Law & Technology, the Human Rights Centre and PIXLES (Privacy, Information Exchange, Law Enforcement and Surveillance), all established at the Faculty of Law and Criminology at Ghent University. At the University of Antwerp, she is a member of DigiTax (Centre of Excellence that researches the challenges and opportunities of digitalisation for taxation).

The fourth section of the European Court of Human Rights (ECtHR) delivered a remarkable judgment in the case of L.B. v. Hungary (application no. 36345/16) on January 12, 2021. The publication of taxpayers’ personal data on the tax authority’s website for failing to fulfil their tax obligations constitutes no violation of the right to private life as established under Article 8 of the European Convention on Human Rights (ECHR). In this case, the personal data published included the applicant’s name, home address, tax identification number, and the amount of unpaid tax he owed. The ECtHR clearly prioritises the Hungarian legislature’s choice to make the identity of persons who fail to respect their tax obligations publicly available in order to improve payment discipline and protect the business interests of third parties over the data subject’s right to privacy.

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