In what is possibly one of the most important judgments of 2016, Paposhvili v. Belgium, the Grand Chamber has memorably reshaped its Article 3 case law on the expulsion of seriously ill migrants. In a unanimous judgment, the Court leaves behind the restrictive application of the high Article 3 threshold set in N. v. the United Kingdom and pushes for a more rigorous assessment of the risk of ill-treatment in these cases. For us at the Human Rights Centre of Ghent University, it was a thrill to intervene as a third party in such an important case. In our third party intervention we submitted that Paposhvili offered a unique opportunity to depart from the excessively restrictive approach adopted in N. We are delighted that the Grand Chamber has seized the opportunity to re-draw the standards in this area of its case law in a way that does fuller justice to the spirit of Article 3.
By Dirk Voorhoof *
Recently, the Council of Europe Task Force for Freedom of Expression and Media published a book under the title “Journalism at risk. Threats, challenges and perspectives”. Since a Grand Chamber judgment of the European Court of Human Rights of 20 October 2015, a new threat for journalistic freedom has obviously emerged, that is the risk for journalists to be detained, prosecuted and convicted for disobeying a police order while covering a public demonstration. At least, that is the consequence of the judgment in the case of Pentikäinen v. Finland.
The Grand Chamber concludes that the interference with a press photographer’s right to freedom of expression and newsgathering because of disobeying a police order to leave the scene of a demonstration that had turned into a riot, can be said to have been “necessary in a democratic society” within the meaning of Article 10 of the Convention. At an earlier stage in this procedure the Chamber of the fourth section, with five votes to two, had come to the same conclusion (see our blogs in March 2014, here and here).
Few judgments have sparked more criticism than N. v. the United Kingdom. The high Article 3 threshold set in the case of a seriously ill woman expelled to Uganda where she died shortly after her return has been criticized both inside and outside the Court. Following what some considered a missed opportunity in S.J. v. Belgium last March, the Grand Chamber now has a renewed chance to revisit the N. approach in Paposhvili v. Belgium. In a third-party intervention in the case, the Human Rights Center at Ghent University invited the Grand Chamber to reconsider the unduly restrictive approach adopted in N. In this post, I highlight the main points we made in our intervention as well as some of the parties’ Article 3 oral arguments during last week’s hearing.
This guest post was written by Natalija Bitiukova*
Is it possible that having a discriminatory law allowing civil partnerships only for different-sex couples is better than having no law at all? After the Grand Chamber released its judgment in Vallianatos and Others v. Greece case, Lithuanian human rights advocates have realized that indeed it is. Contrary to a popular view that the judgment could become an easy-win for Lithuanian same-sex couples, it seems that the equal right to enter into a civil partnership will have to wait. Unfortunately, the ECtHR, in naming Greece and Lithuania as the only countries which provide for a form of registered partnership designed solely for different-sex couples, has counted them wrongly. Continue reading
On Wednesday, our research team attended the Grand Chamber hearing at the European Court of Human Rights in the case of S.A.S. v. France, in which we submitted a third party intervention on behalf of the Ghent University Human Rights Centre. The case concerns the French law banning the face veil, a highly debated piece of legislation, which was also obvious from the amount of international press covering the hearing. I will first briefly discuss the content of our third-party intervention and then turn to a summary of the hearing which left a positive impression on us.
This guest post was written by Cesare Pitea, Researcher in International Law (Faculty of Law) and Assistant Professor of Interational Law (Faculty of Political Science), University of Parma (Italy).
1. Judging in a Heated Political Context
In the Scoppola v. Italy (no. 3) judgment ([GC], no. 126/05, 22 May 2012), the third chapter of the “Scoppola Saga” (See Scoppola v. Italy, no. 50550/06, 10 June 2008 and Scoppola v. Italy (no. 2) [GC], no. 10249/03, 17 September 2009), the Grand Chamber of the European Court of Human Rights (the Court) had the chance of reassessing the issue of prisoners’ deprivation of the right to vote under Art. 3 of Prot. No. 1. Indeed, the 2004 Grand Chamber judgment in Hirst v. the United Kingdom (no. 2) ([GC], no. 74025/01, 30 March 2004) on this very same subject had caused an heated debate between defenders of national sovereignty and subsidiarity (see Lord Hoffman’s critical remarks here) and supporters of a more effective and incisive international judicial review by the Court, causing an on-going (see the post by L. Peroni and M. Burbergs) tension between the Court and one of its “founding fathers”, the United Kingdom. Echoes of this controversy have recently been heard in Brighton, where at the High-level conference convened by the British Government, the idea of narrowing the Court’s powers of review – inter alia by introducing the notion of the margin of appreciation in the text of the Convention – was initially flagged (see the UK Draft Brighton Declaration) and finally dropped (see the adopted Brighton Declaration).
When it comes to protecting family life, the Strasbourg Court is torn between realism and formalism. The recent Grand Chamber case of van der Heijden v Netherlands is a good example of this. The Court showed itself to be deeply divided over a question of testimonial privilege – meaning the right not to testify against one’s family member or partner. By 10 votes to 7 (and additionally 3 concurring judges expressing their hesitation), it held that the Dutch State cannot be criticized for limiting testimonial privilege to those who are related by blood and those who have formalized their relationship through marriage or registration.
At first glance this may well seem reasonable, but you might change your mind – as I did – when you hear the facts of this case. In a nutshell: Ms. van der Heijden was kept in detention for 13 days because she refused to comply with an order to testify against her life-partner, with whom she had been cohabiting for 18 years and with whom she has two children. In what follows, I will argue that it is regrettable that the Court departs from a flexible approach that puts people and not legal categories first. Continue reading
This post on freedom of expression, academic research, privacy protection and access to official documents is written by Dirk Voorhoof* and Rónán Ó Fathaigh**
The Grand Chamber of the European Court has, more firmly than its Chamber judgment of 2010, confirmed that a Swedish professor could not rely on his right of privacy under Article 8, nor on his (negative) right to freedom of expression and information under Article 10 of the Convention to justify his refusal to give access to research material at Gothenburg University (see comment on Chamber judgment here). The Court unanimously concluded that the criminal conviction of the professor for not giving access to the requested documents did not affect his rights under Article 8 and 10 of the Convention. Most importantly, the Grand Chamber also referred under Article 10 of the Convention to the right “to receive information in the form of access to the public documents” (§ 93 and 94).
Today, in the judgment of Konstantin Markin v. Russia, the Grand Chamber has re-defined its jurisprudence on sex discrimination. Regular readers of this blog will know that the “Strasbourg Observers” have taken a close interest in this case (see earlier posts here and here). The Human Rights Centre of Ghent University – of which we are a part – actually actively participated in arguing the case: we had submitted a third party intervention to the Court. Our brief is available here.
So I am thrilled to be able to report good news on this judgment. The issue in the case is whether military servicemen can be refused parental leave when such leave is available to servicewomen. With a vote of 16 to 1, the Court has held that such a difference in treatment on the ground of sex violates article 14 (the anti-discrimination provision) in conjunction with article 8 (right to private and family life). The judgment includes a thorough gender discrimination-analysis; I will do my best to highlight the most interesting parts. Continue reading
The Grand Chamber has handed down its much-awaited judgment in Aksu v. Turkey. This case concerns the use of derogatory stereotypical images of Roma in government-sponsored publications. The Grand Chamber holds with 16 votes to 1 that article 8 (right to private life) has not been violated. I have mixed feelings about the Court’s reasoning. When it comes to stereotypes, the judgment contains progressive and insightful reasoning. On the other hand, I regret that the Court did not take the substance of the applicant’s complaint – namely that he was discriminated as a Roma – seriously. In what follows I will chart the Court’s judgment and highlight both some strengths and some weaknesses. Continue reading
In Austria, it is forbidden to use donated sperm or ova for in vitro fertilization (‘IVF’). Ovum donation is under all circumstances prohibited; sperm donation is only possible when the sperm is directly placed in the womb of a woman (in vivo artificial insemination). Two Austrian couples complained about this regulation; the first couple needs IVF treatment with use of donor sperm and the other couple needs IVF with use of a donor ovum to fulfill their wish for a child of which at least one of them is the genetic parent. In 2010, the First Section held in S.H. and Others v. Austria that the Austrian regulation violated Article 14 in conjunction with Article 8 of the Convention, with a vote of 6-1 regarding the first couple and 5-2 vote regarding the second couple. Stijn and I have both blogged about that Chamber judgment (see here and here).
The Grand Chamber reversed that judgment a few days ago. With a vote of 13 to 4, the Grand Chamber concludes that the restrictive Austrian assisted reproduction regulation is not contrary to the Convention. Quite frankly, I have difficulties writing this post. The case raises very complex issues, situated as it is within a highly contentious debate about the way the Court should adjudicate culturally or ethically sensitive issues. Recently, the Court has had to endure a barrage of critique for what is perceived as its usurpation of power from the Contracting States. The majority of the Grand Chamber goes to great lengths in this case to appease its critics and appear respectful of State sovereignty: ‘the Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating matters of artificial procreation’ (par 92). And: ‘The Court considers that concerns based on moral considerations or on social acceptability must be taken seriously in a sensitive domain like artificial procreation’ (par. 100). The stakes are high; a lot of pressure is put on the Court. In its third-party intervention, the Italian Government practically announces the apocalypse if ovum donation were allowed: ‘to call maternal filiation into question by splitting motherhood would lead to a weakening of the entire structure of society’ (par 73).
It is impossible to navigate this debate and discuss all the facets of the case satisfactorily in a blog post. I will limit my discussion to the Court’s use of the margin of appreciation- and consensus-arguments, and Austria’s reasons in support of its restrictive legislation as regards assisted reproduction. Continue reading