Forthcoming Publication on Vulnerable Groups in the Court’s Case Law

This post was written by Alexandra Timmer and Lourdes Peroni

Alexandra and I are happy to announce the forthcoming publication of our joint Article “Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law.” The piece will be published in the International Journal of Constitutional Law – I•CON.

In this Article, we critically examine the development and consequences of the concept of “vulnerable groups” in the Strasbourg case law. Our analysis includes a number of high-profile cases, from M.S.S. v. Belgium and Greece, to V.C. v. Slovakia, Alajos Kiss v. Hungary, Kiyutin v. Russia and the recent case of Horváth and Kiss v. Hungary.

The Article was an excellent opportunity to reflect and work together on issues of common interest, such as non-discrimination, equality and vulnerability.

Here is the abstract:

The concept of “vulnerable groups” is gaining momentum in the case law of the European Court of Human Rights. The Court has used it in cases concerning Roma, people with mental disabilities, people living with HIV and asylum seekers. Yet the appearance of the vulnerable group concept in the Court’s legal reasoning has so far escaped scholarly attention. Drawing on theoretical debates on vulnerability and equality as well as on the Court’s case law, this Article offers a descriptive and normative assessment of the concept. Reasoning in terms of vulnerable groups opens a number of possibilities, most notably, the opportunity to move closer to a more robust idea of equality. However, the concept also has some inherent difficulties. This Article argues for a reflective use of the concept and points out ways in which the Court can avoid its pitfalls.

Non-nationals, living conditions and disability: Situating S.H.H. v. United Kingdom within Strasbourg’s Article 3 case-law

This guest post was written by Elaine Webster. Elaine holds a PhD from the University of Edinburgh and is currently a lecturer and director of the Centre for the Study of Human Rights Law at the University of Strathclyde. 

In S.H.H. v. United Kingdom a chamber of the ECtHR, by four votes to three, found that a real risk of inhuman or degrading treatment had not been established and found no potential violation of Article 3 ECHR. The applicant in this case sought and was refused asylum in the United Kingdom. It was argued that, as a result of his severe physical disabilities, return to his home country of Afghanistan would give rise to a violation of Article 3. The core question in this case was which line of the Court’s authorities was most appropriately aligned with the facts in S.H.H.  Continue reading

Horváth and Kiss v. Hungary: a strong new Roma school segregation case

The Strasbourg Court has once more delivered a judgment in a Roma school segregation case. The applicants in Horváth and Kiss v. Hungary are two young Roma men, who were diagnosed as having mild mental disabilities when they were children. As a result of these diagnoses, they were placed in a remedial school. Their education there was poor: the curriculum was underdeveloped, their schooling did not give them access to the type of job they wanted, and they ended up de facto segregated from the wider population. The applicants claim that their education in the remedial school constituted ethnic discrimination in their enjoyment of their right to education (Article 2 Protocol 1 in conjunction with Article 14 ECHR). The Strasbourg Court rules that they’re right: it finds a violation of the Convention on the ground of indirect ethnic discrimination.

Much of the reasoning in this case is familiar from other Roma school segregation cases, such as, notably, D.H. and Others v. Czech Republic (2007) and Oršuš and Others v. Croatia (2010). In this post, I will discuss the judgment and try to highlight what’s new in the Court’s reasoning. Continue reading

Remembering the private and family lives of mentally disabled persons

In the case of Stanev v. Bulgaria the Grand Chamber gives hope for future developments in the Court’s approach towards the protection of private and family lives of mentally disabled people (Lycette Nelson from the Mental Disability Advocacy Center has also blogged about this case, read it here). Even though the majority did not find it necessary to examine Mr. Stanev’s complaint under Article 8, the dissenting opinions of four judges show that there are voices within the Court that consider that the institutionalization of mentally disabled persons has more aspects the Convention should protect. Continue reading

Stanev v. Bulgaria: The Grand Chamber’s Cautionary Approach to Expanding Protection of the Rights of Persons with Psycho-social Disabilities

This post is written by Lycette Nelson, Litigation Director, Mental Disability Advocacy Center*

The Grand Chamber’s recent judgment in Stanev v. Bulgaria has enormous significance for the rights of thousands of persons with psycho-social disabilities and intellectual disabilities throughout Europe. In finding violations of Articles 3, 5§1, 5§4, 5§5, 6§1, and 13, the Grand Chamber opened the possibility for persons in social care institutions to challenge both their deprivation of liberty and the inhuman and degrading conditions in institutions, and reaffirmed its jurisprudence regarding the right of persons whose legal capacity has been restricted to have access to a court to challenge their loss of rights.  However, the  Court’s narrowing of its holdings and failure to examine the applicant’s claim under Article 8 limit the scope of the judgment. The D.D. v. Lithuania judgment, coming immediately upon the heels of Stanev, brings the limitations of Stanev into focus. Read together, the two cases raise questions about the Court’s willingness to broaden its approach to protection of the rights of persons with psycho-social and intellectual disabilities and to go beyond acknowledging the Convention on the Rights of Persons with Disabilities (CRPD) as the international standard for the rights of persons with disabilities to engage substantively with the paradigm shift the CRPD embodies.

Continue reading

Strasbourg Court condemns Belgian internment policy

On 6 December 2011, the European Court of Human Rights found the Belgian internment policy to be in breach of the ECHR. The case of De Donder and De Clippel v. Belgium concerned Tom De Clippel, a mentally ill person who had committed suicide while interned in an ordinary prison. Under Belgian law, internment (“internering” / “internement”) is a “safety measure” to protect society against a dangerous mentally ill individual who was committed a serious offence, but who is not considered to be criminally liable due to his or her mental illness.

According to the Court, the authorities should have been aware that there was a real risk that Tom De Clippel, as a paranoid schizophrenic, might attempt to commit suicide while detained in an ordinary prison environment. The Court found a substantive violation of Art. 2 ECHR (the right to life) on the ground that Tom De Clippel should never have been held in the ordinary section of a prison. Continue reading

Kiyutin v. Russia: landmark case concerning the human rights of people living with HIV

Recently, the Court came down with a judgment that strongly condemns the stigmatization of people living with HIV. Kiyutin v. Russia is, as far as I was able to ascertain, the first case in which the Court rules on the merits of a claim of discrimination on the ground of a person’s HIV-positive status. Straight away, the Court has chosen to become a leader in the battle against stigma and discrimination of people with HIV. Continue reading