Sekmadienis Ltd. v. Lithuania: Can Religious Figures Be Featured in Commercial Advertising?

This guest post was written by Ingrida Milkaite, Ghent University *

On 30 January 2018 the European Court of Human Rights (the ECtHR, the Court) found a violation of Article 10 of the ECHR in Sekmadienis Ltd. v Lithuania. The main issue at hand was the question whether the national authorities provided ample explanation, consisting of relevant and sufficient reasons, as to why certain advertisements were contrary to public morals.

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Disability and University (pragmatic) Activism: the pros and cons of Enver Şahin v Turkey

By Joseph Damamme, PhD candidate at the Centre of European Law of the Université libre de Bruxelles, member of the Equality Law Clinic & Advisor to Counsel (Constantin Cojocariu) in the case of Gherghina v Romania.

Economic and time constraints are often used as a justification for refusing or delaying necessary changes to the environment that would allow persons with disabilities to be more included in society. A balancing exercise between these constraints and the rights of these individuals was the subject of the ECtHR Chamber judgment Enver Şahin v Turkey (only available in French for now). Therein, the Court clarified somehow the content and contours of the State’s (and the University’s) responsibility, when faced with accessibility requests by their students with disabilities. The positive outcome of the Court’s ruling contrasts with some missed opportunities and unanswered questions that are addressed by Judge Lemmens in his valuable dissenting opinion. Continue reading

The right of journalistic newsgathering during demonstrations

By Dirk Voorhoof and Daniel Simons

In a case about a Ukrainian journalist being arrested during an anti-globalisation protest in Russia, the European Court of Human Rights (ECtHR) in Butkevich v. Russia (13 February 2018) has clarified that the gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom. The ECtHR found that the arrest, prosecution and conviction of the journalist had violated his right to freedom of expression under Article 10 of the European Convention of Human Rights (ECHR). The ECtHR also found violations of Article 5 § 1 (right to liberty) and of Article 6 § 1 (right to a fair trial). This blog focuses on the aspects of journalism and freedom of expression under Article 10 ECHR, and in relation to the right of peaceful demonstration under Article 11 ECHR. The judgment offers important support to journalists covering public events, demonstrations and police actions, especially after the disappointing outcome in the case of Pentikäinen v. Finland. Continue reading

Undue political pressure is not dialogue: The draft Copenhagen Declaration and its potential repercussions on the Court’s independence

By Sarah Lambrecht, researcher, Research Group Government and Law, UAntwerp and law clerk at the Belgian Constitutional Court[1]

 The Danish Government wishes to initiate a renewed discussion on the future of the European Convention on Human Rights system­, as one of its priorities of the Danish Chairmanship of the Committee of Ministers of the Council of Europe from November 2017 till May 2018. Before issuing its draft Copenhagen Declaration on 5 February 2018, the Danish Government hosted a High-Level Expert Symposium ‘The Future of the European Court of Human Rights – Time for a Renewed Discussion?’ on 20-21 April 2017 at Copenhagen, at which I participated, and a High-Level Expert Conference ‘2019 and Beyond – Taking Stock and Moving Forward from the Interlaken Process’ on 22-24 November 2017 at Kokkedal. This process has been particularly transparent, a stark contrast from previous efforts, for which the Danish Government should be commended. Continue reading

The Draft Copenhagen Declaration – What About Civil Society?

By Antoine Buyse, professor of human rights from a multidisciplinary perspective, Utrecht University

The very existence of this critical comment series on the draft Copenhagen Declaration of the Danish chairmanship of the Council of Europe shows that the recent publication of the draft was enough to elicit a stream of responses. This possibility for open discussion is to be applauded and certainly a big improvement over the earlier discussion surrounding the Brighton Declaration of 2012, over which debate was only possible after the text was leaked. Indeed the intensity and concerns palpable in the current responses show that the contents of the draft are not warmly welcomed by everyone. Some very esteemed colleagues, with supporting reasoning, even relegate the whole draft back to the drawing board. Continue reading

The draft Copenhagen Declaration and the Court’s dual role – the need for a different definition of subsidiarity and the margin of appreciation

By Janneke Gerards, Professor of fundamental rights law, Utrecht University, the Netherlands

The double-faced role of the Court

One of the recurring topics in all High Level Declarations is the role the European Court of Human Rights (ECtHR or Court) should play in protecting the Convention rights. Article 32 of the Convention stipulates that the Court’s jurisdiction extends to ‘all matters concerning the interpretation and application of the Convention and the Protocols thereto’. The meaning of this provision has always remained somewhat ambiguous. On the one hand, the importance of the Court’s offering individual redress to victims of Convention rights violation has been stressed over and over again (not in the least in the Interlaken Declaration). On the other hand, the Convention’s Preamble discloses that the Convention was originally regarded as a first step towards the ‘collective enforcement’ of human rights. Apparently, offering general protection against human rights violations was considered an important objective, too. In line with this ambiguity, the Court accepted already in 1978 that under Article 32, its task is ‘not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention’. Continue reading

The Draft Copenhagen Declaration – Process-based review and subsidiarity

By Leonie Huijbers (PhD Candidate, Utrecht University, the Netherlands)

With the publication of the list of priorities for the Danish Chairmanship in November 2017, it became publicly clear that the Danes would push for yet another debate on the future of the Convention system. According to the Danish Chairmanship, such a debate is needed because ‘support’ for the Convention system is diminishing and the authority of the Court is (actively) questioned by European citizens and national policy-makers. Ironically, the Danes themselves were faced with a lack of support for their plans to engage in another round of reform deliberations. The Council of Europe bodies appear to be a little tired of all the reforms and have questioned the usefulness of new reforms. Indeed a 2015 CDDH-report states that the challenges faced by the Convention system requires ‘allocating additional resources and more efficient working methods rather than introducing a major reform’ (p. 10). Continue reading