Victims of ‘vulnerability’: Balancing protection, privacy and participation of child victims in X and Others v. Bulgaria

By Prof. Dr. Ton Liefaard[*], Jessica Valentine (LL.M)[†] and Lisanne van Dijck[‡]

‘This is a sad case’ begins the joint partly concurring and partly dissenting opinion of Judge Spano and others in the case of X and others v. Bulgaria. The judgment, delivered by a Grand Chamber of the European Court of Human Rights (ECtHR) on 2 February 2021, certainly concerns sad circumstances: three children (siblings) were abandoned by their mother and placed in an orphanage in Bulgaria where they were allegedly victims of sexual abuse before being adopted by an Italian couple. The separate opinion notes the case concerns ‘some of the most vulnerable of applicants that have come before this Court’. The applicants allege that, following their claim that they had been subjected to sexual abuse at the orphanage, the Bulgarian authorities failed in their positive obligation to protect them against that treatment and in their obligation to conduct an effective investigation into those allegations.

In a divided judgment, the Grand Chamber ultimately found that the Bulgarian authorities had breached their procedural obligation under Article 3 of the ECHR, which requires authorities to conduct an effective investigation into arguable claims of torture, inhuman or degrading treatment. Although the Bulgarian authorities had taken a series of investigative steps, the Grand Chamber ultimately found that these had not met the required level of ‘effectiveness’. One of the reasons for this was a failure to take any steps to involve the victims in the investigation (§208). In its interpretation of Article 3, the Grand Chamber took into account other applicable international instruments and in particular the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (the ‘Lanzarote Convention’).

The joint separate opinion by Judge Spano and others suggests that the majority’s desire to respond to the applicants’ ‘sad story’ leads it astray (§2). The decision, according to this opinion, potentially exposes future child victims to excessively intrusive and unreliable investigative measures (ibid). We argue below that the dissenters’ reading risks overlooking the procedural rights of children.

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Medical “normalisation” of intersex persons: third-party intervention to the ECtHR in the case of M. v. France

By Charly Derave, PhD Researcher at the Perelman Centre for legal philosophy (ULB), and Hania Ouhnaoui, coordinator of the Equality Law Clinic (ULB).

On 24 February 2021, the Equality Law Clinic (ELC) of the Université Libre de Bruxelles[1] and the Human Rights Centre (HRC) of Ghent University[2] submitted a third-party intervention to the European Court of Human Rights in the case M. v. France. This case is the first opportunity for the Court to rule on “normalising” medical treatments of intersex persons, i.e. those who are born with sex characteristics that do not conform to the (medical) definition of the male and female sex.  They represent between 1% and 2% of the population. It is because of the “variations”[3] in their sex characteristics that, even though they are healthy, these persons often undergo enforced corrective surgeries and hormonal treatments to “normalise” their bodies and to anchor them in the binarity of sex and gender.

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Kargakis v. Greece: Protection in Substance for Detainees with Disabilities but a Web of Missed Opportunities

By Andrea Broderick (Assistant Professor of International and European Law, Maastricht University, The Netherlands) and Delia Ferri (Professor of Law, Maynooth University, Ireland)

Delia Ferri and Andrea Broderick have collaborated on several recent publications, including the first textbook on International and European Disability Law and Policy: Texts, Cases and Materials (Cambridge University Press, 2019), and the first Research Handbook on EU Disability Law (Edward Elgar Publishing, 2020).

On 14 January 2021, the ECtHR released its ruling in the case of Kargakis v. Greece (press release available in English). The case centres on the conditions of pre-trial detention of Mr. Kleanthis Kargakis in Diavata Prison, the lack of an effective remedy to complain about those conditions and the length of judicial review proceedings. Taking into account the fact that Mr. Kargakis is a person with disabilities and having regard to the duration of his imprisonment, the Strasbourg Court held that the conditions in which he was detained amounted to a violation of Article 3 ECHR, containing the prohibition of inhuman and degrading treatment. The Court also found that Greece breached Article 13 ECHR, which enshrines the right to an effective remedy, on account of the fact that the domestic court did not adequately examine the conditions of detention and health issues experienced by the applicant.

The ruling in Kargakis v. Greece is noteworthy due to the Court’s finding that the pre-trial detention conditions in Diavata Prison exceeded the threshold of suffering inherent to the deprivation of liberty because the prison facilities were not adapted to the needs of people with disabilities. While the Strasbourg Judges did not explicitly discuss Greece’s international law obligations to provide generalised accessibility measures and individualised reasonable accommodation, the ECtHR acknowledged the rights of detainees with disabilities to an accessible place of detention. In that sense, the decision fits neatly into a long line of previous cases, such as Price v. UK, Z.H. v. Hungary and Grimailovs v. Latvia, in which the Court has recognised the general duty of Contracting Parties to the ECHR to provide accessible prison settings, alongside the obligation to take all ‘reasonable steps’ to address the individual needs of detainees with a disability. Unfortunately, the Court did not refer to, or incorporate into its reasoning in Kargakis v. Greece, the UN Convention on the Rights of Persons with Disabilities (CRPD). In that regard, the decision constitutes a missed opportunity to foster convergence between the ECHR and the CRPD.

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X and Y v North Macedonia: A missed opportunity to improve the case law on anti-Roma custodial violence

By Emma Várnagy (Teaching Assistant at the Faculty of Law, Safety and Governance, The Hague University of Applied Sciences)

The case of X and Y v North Macedonia (Application no. 173/17) concerns the beating of two Roma youths by the police and the subsequent inaction concerning the investigation of their ill-treatment. In fact, it has a strikingly similar fact pattern to a number of cases throughout the last two decades, such as Assenov and Others v Bulgaria (1998); Bekos and Koutropoulos v Greece (2005); Stefanou v Greece (2010); or A.P. v Slovakia (2020). These cases all concern the apprehension of Roma minors for suspected theft and their ill-treatment in police custody. The novelty of X and Y is that it is the first time the discrimination claim was also raised under Article 1 of Protocol No. 12, thereby offering an opportunity that the Court could have taken to formulate its approach to racist violence at the hands of public authorities.

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