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
Admissibility
Extremist view on subsidiarity and on exhaustion of domestic remedies? Criticism of the decision Szalontay v. Hungary
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.
A Casualty of Formalism: The Application of the Six-Month Rule in Kamenica and Others v. Serbia
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.
The saga continues … Legal standing for NGOs when de facto representing mentally disabled dying in institutions
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.
(In)justice and admissibility: No standing for their representative, but effective protection for disappeared victims?
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).
Farewell to Marckx and all that or how I received ‘the letter’ (from the registry of the European Court of Human Rights)
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.
Helsinki Committee of Armenia v Armenia: when the subsidiarity-requirement and the exhaustion of domestic remedies do not go hand in hand
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.
