By Topic

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

Guest Blogger Balbino v. Portugal, Children's Rights, Right to Respect for Family Life

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

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

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

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

Guest Blogger Asylum Seekers, ND and NT v. Spain, Prohibition of Collective Expulsion

By Hanaa Hakiki

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

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

Guest Blogger Access to information, Freedom of Expression, Studio Monitori and Others v. Georgia

By Dirk Voorhoof and Ronan Ó Fathaigh

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

Reminder: Conference “The ECHR Turns 70 – Taking Stock, Thinking Forward”

Strasbourg Observers Uncategorized

In these disturbing times for all of us, we at the Ghent University’s Human Rights Centre are really looking forward to seeing all of you, the ECHR community, again once all of this is over. On 18-20 November 2020, we’re organizing a conference to celebrate the 70th anniversary of the European Convention on Human Rights, which was opened for signature in Rome on 4 November 1950. This post serves as a reminder that the deadline for submission of abstracts is 15 April 2020. For more information on how to do so, please visit our conference website. Continue reading →

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

Guest Blogger Ali Riza and Others v. Turkey, Right to a Fair Trial, Sport Arbitration

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

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

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

Guest Blogger Freedom of Expression, Magyar Kétfarkú Kutya Párt (MKKP) v. Hungary, technology

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

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

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

Guest Blogger Buturuga v. Romania, Domestic Violence

By Fleur van Leeuwen (Boğaziçi University)

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

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