Chowdury and Others v. Greece: Further Integration of the Positive Obligations under Article 4 of the ECHR and the CoE Convention on Action against Human Trafficking

By Dr. Vladislava Stoyanova, author of Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in European Law (Cambridge University Press, 2017)[1]

 On 30 March 2017 the ECtHR delivered the Chowdury and Others v. Greece judgment (currently available only in French), where the Court found a violation of Article 4(2) of the ECHR in relation to 42 undocumented migrant workers from Bangladesh who worked on a strawberry farm in Manolada, Greece, and who were subjected to severe forms of labour exploitation. The summary of the factual circumstances is available here in English. The ECtHR found that the migrants’ circumstances amounted to forced labour and human trafficking and that Greece was in violation of its positive obligations under Article 4 to take protective operational measures and to conduct an effective investigation. Continue reading

K.B. and Others v. Croatia: the Court’s first steps to tackle parental alienation

By Evelyn Merckx, teaching assistant and PhD researcher at Ghent University

Children’s position during their parents’ separation remains a delicate matter. A variety of reasons can result in a child refusing contact with a parent in response to the challenging situation. Objective reasons can lead to the child’s decision, such as a parent’s aggressive or indifferent behaviour. However, it can also be the result of a smear campaign of the other parent. In the past, the European Court of Human Rights avoided to impose harsh obligations on the State Party to prevent a child alienating a parent. To prevent having to answer the question whether contact is in the best interests of the child in a given case, the Court mainly focuses on the State Parties’ procedural and positive obligations to adopt certain measures to regulate the relations between private individuals through the establishment of an effective regulatory framework of adjudicatory and enforcement machinery (amongst others: ECtHR, Stasik v. Poland, 2015, § 80). Steady case law examines whether the State Party adopted all necessary, relevant and sufficient measures that can be reasonably expected to facilitate contact between parent and child (amongst others: ECtHR, Bostina v. Romania, 2016, § 57) . Furthermore, the Court solely examines the parent’s right to contact with his or her child and hereby refusing to examine the child’s right not to be manipulated. K.B. and others v. Croatia seems to deviate from past case law, providing for a welcome change but entailing some risks as well. Continue reading

Orloskaya iskra v. Russia: Reporting in media during election campaign must be free from content restrictions

By Galina Arapova, Director of Mass Media Defence Centre, senior media lawyer, Russia

On 21 February, the Court delivered its judgment in the case of Orloskaya iskra v. Russia, concerning the use of electoral laws to curb or restrict media reporting at election time and the circulation of critical opinions and information about candidates, their programs and political views.

The case deals with the applicant’s conviction for an administrative offence for publishing critical articles about a politician during the 2007 parliamentary election campaign in Russia.  The applicant, regional newspaper “Orlovskaya iskra”, whose political affiliation was specified on the front page, had published two critical articles. Continue reading

Talpis v. Italy: Elements to Show An Article 14 Violation in Domestic Violence Cases

What are the elements necessary to support a finding of discrimination in domestic violence cases? In the recent case of Talpis v. Italy, two judges voted against an Article 14 violation. The dissenting opinions offer an opportunity to reflect on this and other broader questions that may be relevant for future cases. The questions flow from disagreement in the judgment over: whether the domestic authorities involved in the individual case were discriminatory towards the applicant as a woman and whether there were sufficient indications of failures to protect women in the Italian system.

Continue reading

X and X v. Belgium: a missed opportunity for the CJEU to rule on the state’s obligations to issue humanitarian visa for those in need of protection

By Helena De Vylder, lawyer at the Flemish Integration Agency (Agentschap voor Integratie en Inburgering)

On 7 March 2017, the Court of Justice of the European Union (CJEU) gave a preliminary ruling in the case PPU X and X v. Belgium. Against the recommendations of the Advocate General, the CJEU left the responsibility for granting humanitarian visas with the Member States. It argued that, although the request for a visa was formally submitted on the basis of Article 25 Visa Code, the situation at stake fell outside the scope of the Visa Code. The applicants submitted the request with the intention to apply for asylum as soon as possible upon their arrival in Belgium and to stay there as refugees, while the Visa Code only covers short-term visa. Continue reading

New publication: Procedural Review in European Fundamental Rights Cases

I am happy to present a new book, Procedural Review in European Fundamental Rights Cases, which is a joint edition of prof Janneke Gerards (Utrecht University) and myself. It originated in an expert seminar we hosted jointly at Ghent University in 2015. We will be addressing this topic also in a panel at the next ICON-S conference in Copenhagen.

This is the abstract and table of contents: Continue reading

Paradiso and Campanelli v. Italy: Lost in Recognition. Filiation of an Adopted Embryo born by Surrogate Woman in a Foreign Country

By Elena Ignovska, Assistant professor, University Ss. Cyril and Methodius, Faculty of Law, Skopje, Macedonia.

Assisted Reproductive Technologies (ART) undoubtedly triggered an earthquake in the concept of parenthood, resulting in a fragmentation of the possible parents: genetic/biological, gestational, factual and legal. Their initial objective was to enable infertile couples to parent genetically related progeny. Yet, they have recently been used in ways that are detached from that initial purpose, which may be problematic from the viewpoint of national family law. A typical example of that is the case of Paradiso and Campanelli v. Italy which demonstrated the opposite intention: using foreign assistance in reproduction for purposes of parenting a non-gestational and genetically unrelated child. The issue before the Court concerned a removal of the child from his intended parents as a result of a (non)recognition of a foreign birth certificate. Continue reading