On the 11th of March, the European Court of Human Rights (the Court) issued its decisions in Grimmark v. Sweden and Steen v. Sweden, two cases casting light on the issue of refusal by healthcare professionals to participate in abortion procedures. The Court in these fairly straight-forward decisions rejected the Applicants’ complaints as manifestly ill-founded. Rather, the Court found the Swedish authorities’ decision to not employ midwives who refused to participate in abortion procedures complied with Article 9 of the European Convention on Human Rights (the Convention). These two cases are ground-breaking in that this is the first time that the Court decides on the issue of a purported right to refuse to carry out work duties in relation to abortion. Earlier cases relating to so-called conscientious objection have either related to other substantive issues, or been considered from the opposite perspective, that is, in relation to complaints that such refusal has impeded the possibilities to access legal abortion. Building on landmark cases such as R.R. v. Poland (2011) (blog posts here and here, P. and S. v. Poland (2012) (blog post here), Pichon and Sajous v. France (2001), Regner v. the Czech Republic (2017) (blog post here), Skugar and others v. Russia (2009), and Eweida and others v. the United Kingdom (2013) (blog posts here and here), the cases against Sweden follow the trajectory of previous case-law concerning abortion services, refusal to perform work duties, and the question whether there is a right to hold a certain work position. The Court also rejected the Applicants’ complaints under Articles 10 and 14 of the Convention, respectively. However, the focus of this comment will exclusively be on the decision under Article 9.
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 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
On 16 July, the Court delivered its judgment in the case of Zhdanov and others v. Russia. The case concerns the refusal by the Russian authorities to register two LGBT rights organisations because they were considered extremist organisations on account of the allegedly immoral character of their activities. In this judgment, the Court found a violation of Article 6 § 1 (access to court) and of Article 11 (freedom of assembly), alone and in conjunction with Article 14 (prohibition of discrimination). This blog post is only concerned with the Article 11 and 14 aspects of the case. After setting out the facts, I will highlight some of the missed opportunities in the Court’s judgment from the perspective of the third party intervention we, as the Human Rights Centre of Ghent University, submitted in this case (in particular as far as the assessment of the legitimate aim of the interference is concerned). In addition, I will discuss a quite peculiar aspect of the case: the decision to declare the part of the complaint lodged by LGBT activist Nikolay Alekseyev inadmissible as an abuse of the right of application because of offensive statements he made about the Court and its judges on social media. In line with the (partly) dissenting judges, I will argue that this is problematic from the viewpoint of both freedom of expression and access to the Court. Continue reading
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.
By Corina Heri, PhD candidate at the University of Zürich / Visiting Scholar at Ghent University
On 27 October 2016, the Court published the Third Section’s decision in Kamenica and Others v. Serbia. That case concerns the alleged ill-treatment of 67 persons who fled Bosnia and Herzegovina during the conflict that broke out there in 1992 and who were subsequently interned in a Serbian detention camp. The Third Section applied the six-month rule to the case, finding that it had been brought out of time. Its decision raises questions about the strictness of the six-month rule and the application of a statute of limitations to grievous alleged violations of Article 3 ECHR. Granted, the application of a rigid time limit for bringing applications to Strasbourg fosters certainty and ensures that the proceedings before the Court take place within a useful time frame. However, decisions such as this one indicate that, in certain types of cases – here, a particularly grievous one that stood to be investigated in a post-conflict scenario – the Court’s emphasis of a strict time limit can seem decidedly formalistic.
By Helena De Vylder
Once again, in the decision in Bulgarian Helsinki Committee v Bulgaria, the ECtHR had the opportunity to rule on the legal standing of an NGO when de facto representing two mentally disabled adolescents, who died in an institution. The ECtHR applied the criteria it established in Centre for Legal Resources on behalf of Vincent Campeanu v Romania and confirmed in Helsinki Committee on behalf of Ionel Garcea v Romania. The Court found that the applicant organisation in Bulgarian Helsinki Committee does not meet the requirement that it must formally be involved in the domestic proceedings having all the rights parties in criminal proceedings enjoy. Unfortunately, the Court does not attach more importance to the ultimate goal of granting legal standing to de facto representatives. In Campeanu, it held that this was in order to prevent allegations of a serious nature from being examined at the international level, with the risk that the respondent state might escape accountability under the Convention.
By Helena De Vylder
In the inadmissibility decision delivered on 26 April 2016 in the case of N. v. Russia and M. v. Russia, the Court rejects the petition for lack of standing of the applicants’ representative. The victims were unable to formally appoint their representative by signing a ‘power of attorney-document’, since they disappeared, allegedly as the result of a forced extradition to Uzbekistan. The Court considered that their representative could not lodge applications to the Court in their name, in the absence of a duly signed power of attorney to represent them, not just in the domestic proceedings, but also before the ECtHR. According to the Court, the vulnerable applicants did not risk being deprived of effective protection, since it was open to their immediate family to complain. The fact that the direct family members all reside in Uzbekistan, and were formerly questioned by the authorities there, were not considered to prevent the family members from applying. It will consequently never be examined whether the applicants’ abduction and transfer to their home state of Uzbekistan violate the prohibition of torture (article 3 ECHR).
This guest post was written by Dr. Başak Çalı, Director, Center for Global Public Law and Assoc. Prof. of International Law, Koç University Law School, Istanbul.
It is not common to receive a letter from the registry of the European Court of Human Rights. At least, for me it’s not. I was excited to receive mine. I was excited to open it. Unfortunately, this excitement quickly turned into sadness and disappointment. My hero had let me down. My hero had let down thousands of women of Turkish nationality.
By Helena De Vylder
The ECtHR’s recent Helsinki Committee of Armenia v Armenia judgment deals with the refusal of local authorities to grant permission for the holding of a mourning march. However, the letter refusing the march was only received by the applicant organisation after the proposed date for the event. Since no domestic remedies could give the applicant the opportunity to overturn the decision prior to the proposed date, the ECtHR held that domestic remedies could not effectively remedy the situation and did not need to be exhausted. This blog post explores what form of redress would be considered effective, under the circumstances, and exposes the tension with the subsidiarity principle.
This guest post was written by Cedric De Koker, Phd Researcher, IRCP, Ghent University.
With its judgment in the case of Jaloud v. the Netherlands, the Grand Chamber of the European Court of Human Rights (ECtHR) has added another chapter to its growing body of case law relating to the extra-territorial application of the European Convention on Human Rights (ECHR) in the context of military operations abroad. The case is interesting for two reasons: first, the Netherlands (and the United Kingdom as an intervening third party) resorted to the often used, but rarely successful strategy of disputing the extra-territorial applicability of the Convention (and thus the admissibility of the claims presented by the applicant). Therefore, the Court had to interpret Article 1 ECHR once again – arguably the most difficult provision of the Convention to apply – and pronounce on whether the events under review fell ‘within the jurisdiction’ of the Netherlands. Second, asked about the scope of the investigative duty under Article 2 ECHR, the Court had to determine whether states have some flexibility in fulfilling their human rights obligations when operating in extraordinary and difficult conditions, such as hostile environments resulting out of armed conflict or occupation, as was the case here. Both issues will be discussed below.
This guest post was written by Helena De Vylder, Ph.D. researcher at the Human Rights Centre of Ghent University. Her research focuses on admissibility criteria in regional human rights systems.
Mocanu and others v Romania fits in a series of cases in which the Strasbourg Court needed to deal with grave and large-scale human rights violations, happening before the entry into force of the Convention. The events happening before the entry into force are undoubtedly not subject to the temporal jurisdiction of the Convention. The admissibility of complaints concerning the investigative measures and proceedings after the coming into force in the contrast has been accepted by recent case law (and here). Mocanu further refines this case law by dealing with particular circumstances.
In this case, the Court had to deal with the investigation and the length of proceedings which followed the violent crackdown on anti-government demonstrations in Bucharest in June 1990. During the crackdown, Ms Mocanu’s husband – the first applicant’s husband – was killed by gunfire and Mr Stoica – the second applicant – was arrested and ill-treated by the police. The criminal proceedings are still pending in respect of the first applicant. The relevant investigation in respect of the second applicant was terminated by a final judgment in 2011. The applicants claim the proceedings did not live up to the standards put forward by the procedural aspect of article 2 and 3.
In contrast to the merits, the admissibility of the case is less straightforward. The admissibility issues relate to the jurisdiction ratione temporis and the exhaustion of domestic remedies. Continue reading
This guest post was written by Helena De Vylder. Helena is a Ph.D. Researcher at the Human Rights Centre of Ghent University. Her research concerns admissibility criteria in regional human rights systems.
Apart from the new admissibility requirement – significant disadvantage –, the 14th Protocol contains a number of procedural changes. The competences of chambers and committees have been changed and single judge-formations (assisted by a non-judicial rapporteur) were created and given the competence to take final decisions regarding the admissibility of cases where such a decision can be taken without further examination.
The yearly statistics available on the ECHR-website (Annual Report 2013) suggest that the 14th Protocol did a wonderful job, as regards the speeding up of procedures. The backlog of the ECtHR has decreased enormously in the latest years and the renewed efficiency of the Court thanks to the filtering-mechanisms has been applauded. The single judge-formations contribute massively in this regard. However, the commented case sheds light on the other side of the decisions issued by single judges. These decisions are not published, but we had the opportunity to access one of them when an applicant who had obtained an unsatisfactory decision contacted the Strasbourg Observers. Continue reading
This guest post was written by Bella Murati, Ph.D. Candidate at the Human Rights Centre of Ghent University.
July 2013 marks the 18th anniversary of the Srebrenica massacre, when in the period of 13-19 July 1995, more than 8,000 unarmed Bosnian Muslims were deliberately killed by Bosnian Serb forces. The case itself has been termed by both the International Court of Justice (in the Bosnia and Herzegovina v. Serbia and Montenegro case) and the International Tribunal for former Yugoslavia (in the Krstić case) as an act of genocide.
Although Serbian leaders (political and military) bear the greatest responsibility in this case, a certain amount of responsibility rests with the Dutch Battalion who at that time was serving with the UN Protection Force, as well as with the troop contributing country, in this case the Netherlands. Both actors have been accused of failing to protect civilians which were entrusted to them by the United Nations and, as such, of failing in their duty to prevent genocide.
Recently, in Stichting Mothers of Srebrenica and Others v. the Netherlands the European Court of Human Rights (ECtHR; the Court) refused to entertain a claim launched against the Netherlands by relatives of victims of the Srebrenice massacre. The Court relied on the immunity of the United Nations to reject the application as manifestly ill-founded. The ECtHR decision will be scrutinized here.
In this post I want to flag three inadmissibility decisions, delivered by the Court’s Chambers over the past few months, in which the applicant’s claims are declared manifestly ill-founded, by a majority. Like so many inadmissibility decisions, the three summarised below may have easily passed under the radar of many of our readers. These particular decisions are nevertheless worth pointing out, because they raise a number of important questions and concerns. How manifestly ill-founded can a claim really be if a Chamber of seven Judges reaches that conclusion by a majority? Moreover, what does “by a majority” mean in these cases? How many Judges disagreed? And what did their disagreement entail? Did the Judge(s) in the minority consider the claim worthy of an examination on the merits? Or were they of the opinion that the Convention rights of the applicant had been violated?
None of these questions can be satisfactorily answered, for two reasons. Firstly because – unlike in judgments – no information is given on the division in the Chamber that delivered these decisions. The decision merely states “manifestly ill-founded, by a majority”, without indicating how many Judges disagreed. Secondly, because there is no room for separate opinions in decisions. We can thus not know why the Judge(s) in the minority disagreed on the finding that the claim was manifestly ill-founded. As a result of both factors, we are left puzzled as to what “manifestly ill-founded, by a majority”, a seemingly contradictory statement, might mean.
Is the roof of the house in which you own a flat leaking? Is there a delay in repairs? Do you have to repaint the walls? Is there a delay of enforcement of decisions that ordered the repairs? These now seem to be valid questions for your potential human rights violation.
In the case of Bjelajac v. Serbia the Court found a violation of Article 1 of Protocol No.1 due to unjustified delay in enforcing a national court’s ruling. The ruling in substance was about a leaking roof of a house in which the applicant owned a flat. Continue reading
The ECtHR has brought a turbulent Dutch legal saga to a close. In the highly interesting Staatkundig Gereformeerde Partij v. the Netherlands, the Court has declared the complaint by the Dutch political party ‘SGP’ inadmissible. The SGP is, in the words of the Court, “a confessional political party firmly rooted in historical Dutch Reformed Protestantism” (par. 4). The party does not allow women to stand for election, as it believes that God teaches that men and women have different roles in life. It believes that “man is the head of the woman” and “participation of women in both representative and administrative political organs” is “incompatible with woman’s calling” (par. 9). After a prolonged debate and legal struggle in the domestic courts, the Dutch Supreme Court ruled that, on the ground of Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’), the State is obliged to ensure that political parties allow women to exercise their right to stand for election. The SGP complained to the Strasbourg Court that this ruling of the Supreme Court infringed Articles 9 (right to freedom of religion), Article 10 (right to freedom of expression) and Article 11 (right to assembly) of the ECHR.
Frankly, what I expected to find was a terse decision, basically referring to the State’s margin of appreciation. I was wrong. The reasoning is brief, but includes three steps that combine to make this a memorable ruling. I will discuss these steps below. By the way, this case has provoked a lot of controversy in the Netherlands over the past years (most of it is in Dutch, but see this article in the Human Rights Quarterly). With this post, I cannot do justice to the whole debate; I just aim to give you my first impressions of the decision. Continue reading
In a recent case the Court used the ‘significant disadvantage’ criterion to declare a complaint inadmissible. In Liga Portuguesa de Futebol Profissional v. Portugal the Court made a clear distinction between the human rights issue at stake and the case at large (which concerned 20 million euros). Continue reading
In a recent judgment in the case of Genovese v. Malta the Court gave very few words when determining the scope and ambit of Article 8. The Court managed to exclude a right, find no violation and determine the scope in the same sentence, and, in contrary to previous citizenship cases, did not give one word more to justify its decision. Continue reading
It has been claimed and it is also my understanding that human rights protect important aspects of a human life. The views on what are the important aspects may vary. The drafters of the Universal Declaration of Human Rights put in their views; inspired by the rights in the Declaration, the European Convention was composed, and States made an agreement that those are the aspects that should be protected by legally binding human rights. And finally, the Court does its job to interpret the rights and thus we find spheres in each right that are protected by the respective right. These spheres are often determined as rights within the existing broader rights of the Convention. Does the Court think about the general importance of the spheres in human life when developing the scope of rights? To my mind, it could be at least stronger on applying the importance criterion. Let’s take a look at a recent case decided by the Court – Golemanova v. Bulgaria. Continue reading
This post is co-authored by Lourdes Peroni and Alexandra Timmer
In an inadmissibility decision that might have gone unnoticed by many, the Court has recently ruled in an interesting case, Horie v UK. The case involves a “New Age Traveler” who complained of an impediment on her ability to pursue a nomadic way of life. The case’s issue was a rather technical legal one – the question was whether a quia timet order which prevented a group of travelers to occupy any land by the Forestry Commission in the Dorset-region was justified – but en passant the Court makes some potentially important remarks about what sort of lifestyle deserves recognition. The purpose of this post is to flag this case and briefly discuss the disquieting remarks the Court makes about what kind of cultural minority-groups deserve protection and which groups don’t. Continue reading
The Court has recently issued an inadmissibility decision in the case of Korolev v. Russia invoking the new admissibility criterion, introduced with the entry into force of Protocol No.14 to the Convention on 1 June 2010.
The new admissibility criterion provides that applications are inadmissible where “the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal” (Article 35 paragraph 3 (b)). The purpose of the new admissibility criterion is, in the long run, to enable more rapid disposal of unmeritorious cases so as to allow the Court to concentrate on its central mission of providing legal protection of human rights at the European level. More recently, the High Contracting Parties invited the Court to give full effect to the new admissibility criterion and to consider other possibilities of applying the principle de minimis non curat praetor – not to be concerned with petty cases.
An observer of the Strasbourg case-law should always remember to include the inadmissibility decisions in her research. The changes in the Court’s procedures, introducing committees of three judges and judges sitting alone, have made this more difficult (those decisions are not on HUDOC), yet at the same time have resulted in a situation in which the inadmissibility decisions that figure on HUDOC are already a selection, since the most interesting ones are still likely to be dealt with by a chamber of seven. Inadmissibility decisions can be frustrating , because the Court’s reasoning in such cases tends to be quite succinct. This is particularly the case if you do not agree with the Court’s finding that a case is ‘manifestly ill-founded’.
This was my experience recently with the case of Zubczewski v Sweden. As a result of his marriage at the age of 63, this gentleman found his pension reduced with approximately 50 Euros per month. The reasoning behind this is the idea that persons who live together have lower expenses per head than persons living alone. Yet as Zubczewski’s wife did not have any income, this reasoning did not apply to his case. Total expenses of the household had increased while the pension had decreased. He claimed that the lack of an exception for his situation was discriminatory.
I do not spontaneously sympathize with men who invoke the economic dependency of their wives as a source of discrimination. Yet the Court’s reasoning in this case left me unsatisfied.
Recently, the Strasbourg Court declared inadmissible a series of applications by Greek-Cypriot applicants claiming a violation of their property rights due to the continued occupation of the Northern part of Cyprus by Turkey.
The eight admissibility cases were the first such applications to be examined by the Court following the pilot-judgment Xenides-Arestis v. Turkey (app. no. 46347/99, 2006) in which the Chamber had found a violation of articles 8 and 1 Protocol 1. In Xenides-Arestis v. Turkey the Court had instructed Turkey to introduce a remedy which secures genuinely effective redress for the Convention violations.
In the decisions of Demopoulos and others v. Turkey and 7 similar cases, the Grand Chamber of the Court declared the applicants’ claims inadmissible due to non exhaustion of domestic remedies. The Grand Chamber was of the opinion that the amended Compensation Law, as enacted by the authorities of the “Turkish Republic of Northern Cyprus” (“TRNC”) following the pilot-judgment, provided an accessible and effective framework for redress. It came to this decision despite, inter alia, claims of a lack of subjective impartiality of the responsible body, the Immovable Property Commission (IPC), which features Turkish military personnel among its members, who are all appointed by the “TRNC” President.