Tasev v North- Macedonia: (blurry) dimensions and boundaries of the right to free self-identification

By Kristin Henrard, Professor of Fundamental Rights, Erasmus Law School, Rotterdam

On 16 May 2019 the European Court of Human Rights (ECtHR or the Court) delivered its judgement in Tasev v North Macedonia regarding the refusal of the authorities to change the ethnic affiliation of a judge in the electoral roll of judges.

The Court concludes to a violation of Article 8 ECHR because the interference would not have a basis in national law. There is indeed a problem with the foreseeability of the application of the invoked national law. However, the case particularly invites closer analysis of the right to free self-identification as protected by article 8 ECHR, more particularly the two dimensions of this right that can be distinguished (free self-identification pure, and free self-identification through the exercise of rights), their respective boundaries and the way in which these two dimensions interrelate.

It is argued that the Court fails to fully grasp the two dimensions of the right to free self-identification (and their interrelation), resulting in the mistaken identification of an interference with article 8 ECHR. Continue reading

S.A.S. v. France: Missed Opportunity to Do Full Justice to Women Wearing a Face Veil

By Saïla Ouald Chaib and Lourdes Peroni

This week, the Grand Chamber of the European Court of Human Rights published its long-expected judgment in S.A.S. v. France. The case concerns a ban on the wearing of face veils in the public space. Although the outcome of such highly debated cases is always unpredictable, we hoped that the Court would take this opportunity to bring procedural and substantive justice to the women wearing a face veil in Europe.[1] Alas, the Court disappointingly decided the case by granting a wide margin of appreciation to France and by consequently not finding a violation of any of the ECHR provisions invoked, in particular freedom of religion, the right to private life and non-discrimination. At the same time, however, the judgment contains some positive aspects, namely respect for several requirements of what is known as “procedural justice” and departure from previous case law portraying Muslim women as oppressed. In this post, we share our first impressions on what we think are some positive and negative aspects of the Court’s reasoning. Continue reading

A missed opportunity: how the Court’s judgment is commendable for seeking to protect religious minorities but nevertheless wide of the mark

This guest post was written by Lieselot Verdonck. Lieselot is a Ph.D. Candidate at the Human Rights Centre, Faculty of Law of Ghent University. More information on the author can be found here.

The relationship between State and Church has always drawn much interest. It constitutes an inherently sensitive and political issue, which touches upon one of the foundations of a democratic society and concerns any member of that society, whether religious, atheist or agnostic. Accordingly, the European Court of Human Rights inevitably has to face cases concerning the foundational issue of Church-State relations, such as in Magyar Keresztény Mennonita Egyház & Others v. Hungary. The Court’s decision in this case is, however, remarkable for its general and far-reaching statements that leave not only scholars but also governments guessing about their future application. Continue reading

S.A.S. v. France: A short summary of an interesting hearing

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.

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Winterstein v France: the third-party perspective

This guest post was written by Judit Geller* and Adam Weiss**

One month ago, the European Court condemned France under Article 8 for violating the rights of travellers (gens du voyage) by ordering their eviction (see the judgment here). The European Roma Rights Centre (ERRC) made written submissions as a third-party intervener four and a half years ago. Of the eleven countries where the ERRC is currently litigating Roma rights cases, France is the country where it has the greatest number of cases, and most of those concern housing. This piece discusses the judgment in relation to three key issues for Roma facing eviction: alternative accommodation, the failure to conduct a proportionality exercise, and the use of urgent procedures. Continue reading

Mann Singh wins turban case in Geneva after losing in Strasbourg

The name Mann Singh will probably ring a bell with those who are familiar with the case law of the European Court of Human Rights. In Mann Singh v. France (ECHR, 13/11/2008/, no 4479/07), the Strasbourg Court was confronted with the question whether the French obligation to appear bareheaded on photographs on identity documents was compatible with the rights protected by the European Convention on Human Rights. In the case discussed in this post, the same applicant is involved, however, this time he made a claim concerning the prohibition to wear a turban on the photograph on his passport (instead of his driver’s license) and more importantly, he brought his claim in front of the UN Human Rights Committee (hereafter HRC). The same applicant going with almost the same claim to different human rights bodies is quite an exceptional situation. Continue reading

Freedom of Religion in Public Schools: Strasbourg Court v. UN Human Rights Committee

In a recent decision, the Human Rights Committee of the UN found a violation of the right to freedom of religion in a case concerning the famous and highly debated French law of 2004 that prohibits the wearing of religious garment in public schools. Accordingly the UN Committee called upon France to revisit its legislation. This UN Committee’s decision is remarkable, especially since the European Court of Human Rights was also confronted with the same question —whether expulsing pupils from school because of their wearing of religious garment is violating fundamental rights such as the freedom of religion and the prohibition of discrimination—, but contrary to the UN jurisdiction, the ECtHR declared the claims manifestly ill-founded. This recent development is also relevant for the Belgian context, where the debate on headscarves in public schools has been reopened after the Flemish board of public schools announced two weeks ago that they will implement a general ban on religious “signs” for pupils and members of personnel. In this post, I will first summarize the UN decision and subsequently compare it to the Strasbourg case law.

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Francesco Sessa v. Italy: A Dilemma Majority Religion Members Will Probably Not Face

This post was co-authored by Saïla Ouald Chaib and Lourdes Peroni

This week, in a 4-3 judgment, the Court ruled against a violation of the freedom of religion of Mr. Sessa, a lawyer and member of the Jewish faith, unable to attend a court hearing scheduled on Yom Kippur. The case is Francesco Sessa v. Italy. After two recent steps forward in freedom of religion cases (see here and here), the Court with this case takes several steps back. Fortunately, the dissenting opinion leaves the door open for future reasonable accommodation cases.

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French Roma policy violates European Social Charter

In a decision of 28 June (COHRE v. France, no. 63/2010), which was only recently made public, the European Committee of Social Rights has found the French zero tolerance policy towards East European Roma living in illegal camps to be in violation of the European Social Charter. The case, which was lodged by the NGO Centre on Housing Rights and Evictions (COHRE), concerns the eviction and expulsion measures announced by French president Sarkozy in the summer of 2010. Hundreds of illegal camps were dismantled and thousands of Roma were expelled to Romania and Bulgaria. Most expulsions took place on a “voluntary” basis, in exchange for the payment of 300 euro per adult and 100 euro per child. Continue reading

“Living Together” and Diversity in Europe

The Council of Europe recently released a report on diversity in Europe, entitled “Living together: Combining diversity and freedom in 21st-century Europe”, drawn up by the ‘Group of Eminent Persons of the Council of Europe’. The report aims to  negotiate “the challenges arising from the resurgence of intolerance and discrimination in Europe”. It “assesses the seriousness of the risks, identifies their sources and makes a series of proposals for “living together” in open European societies”. The findings and recommendations are based “firmly on the principles of the European Convention on Human Rights, especially individual freedom and equality before the law.” What makes this report particularly interesting is the impressive list of persons that have worked on it. Among the drafters are not only academics from some of the most reputable universities in Europe, but also former high level politicians, including Emma Bonino, Javier Solana and Joschka Fischer.

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Gypsy Way of Life “By Birth” or “By Choice”

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

Konstantin Markin: One more applause to the Court. This time from a perspective of religious minority rights

The case Konstantin Markin v. Russia was already discussed in a previous post written by my colleague Alexandra who, from a gender perspective, found it a very interesting case, worth applauding on several points.

I want to add an additional point from the perspective of religious minority rights. When reading the case I was surprised by the irony of the following statement made by the Court in paragraph 58: Continue reading

In a school ALL pupils should be king! An example of segregation in a Belgian school.

From a minority perspective, this week was not a good week in Belgium. On Wednesday, a television broadcast proved that employment agencies cooperate actively with employers who don’t want to hire people with a foreign background (in Belgium the so-called “allochtonen”). An undercover journalist who posed as an employer searching for new employees, asked the agencies not to select people from a foreign background. Out of the 8 agencies, 6 admitted not having any problem with this question, even if it is unlawful. One of them literally said: “the client is king”!
Today was another sad day. A Belgian school, in the city of Lokeren, divides its children depending of their being “autochtoon” or “allochtoon” (this is how persons from respectively Belgian and immigrant roots are named in Belgium ). Continue reading

Expulsion or mustard grass, the message is the same: “Roma, you are not welcome”

We have all read about the utterly unacceptable treatment of Roma by Sarkozy’s government. And while France holds firm to its “return policy”, thankfully the EU has not turned a blind eye to this discriminatory practice, violating both the freedom of movement within the EU and the prohibition of collective expulsions. First, the European Parliament sent a clear message, issuing a resolution in which the French government was explicitly named and shamed. Now, after a revealed official document clearly demonstrates how the French government is targetting Roma specifically, the European Commission is also going on the offensive. Through the voice of its Commissioner for Justice, Fundamental Rights and Citizenship, the European Commission has said “enough is enough” and threatens France with the initiation of a so-called “fast-track” infringement procedure which could eventually lead to France being held in violation of EU law and fined by the European Court of Justice.

While the above case will be well known to all readers of this blog, other cases pass underneath the radar of the international media. The primary reason for this is that they are less directly shocking. Nonetheless, these ‘minor’ cases also reveal what can only be termed a poisonous attitude towards Roma. And that attitude sends a not to be misunderstood message: “you are not welcome here”. One such ‘minor’ case is currently taking place in Brussels.

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Judge ≠ mathematician

Note: following a helpful comment, this post has been edited to correct a mistake on my behalf.

In this blog entry I would like to focus on the Court’s interpretation of the concept ’statistically relevant’. In Oršuš and others v. Croatia, the Court held the following regarding the statistical evidence adduced by the applicants:

“These statistics demonstrate that only in the Macinec Primary School did a majority of Roma pupils attend a Roma-only class, while in the Podturen Primary School the percentage was below 50%. This confirms that it was not a general policy to automatically place Roma pupils in separate classes in both schools at issue. Therefore, the statistics submitted do not suffice to establish that there is prima facie evidence that the effect of a measure or practice was discriminatory.” (§ 152, emphasis added)

The use of statistics to prove the existence of indirect discrimination was introduced in D.H. and others v. The Czech Republic (app. no. 57325/00) and used afterwards in Sampanis and others v. Greece (app. no. 32526/05). This introduction can only be applauded and was a major step forward for the protection of minorities, since it made proving indirect discrimination more feasible.

What is regrettable is the simple conception of statistical evidence the Court uses in Oršuš .

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Is a more inclusive wind blowing through the Court?

Recently the European Court of Human Rights issued an interesting judgment in a case concerning a Roma Marriage. (Muñoz Diaz v. Spain, 8 December 2009) Muñoz Diaz and M.D. married in 1971 according to Roma traditions. This marriage was recognized by the Roma community. When her husband died, Muñoz Diaz applied for a survivor’s pension, but this request was denied on the ground that she “was not and had never been the wife of the deceased prior to the date of death” as she never solemnized her marriage under Civil law. However, the husband of Muñoz Diaz had been working as a builder for more than 19 years and he contributed to the social security during the same period. These contributions were supporting his wife and six children as his dependants. His 6 children were also registered in the family record book issued to the couple by the Spanish civil registration authorities and the family was granted ‘first-category large-family status’.

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“What’s in a – Kurdish – name?”

One of the consequences of Kemal Attaturk’s reforms was that Kurdish people in Turkey were not able to speak their own language and consequently they were not able to carry own Kurdish names. Recently this changed. However, the Kurds still face problems with the registration of their names, as they are bound to the Turkish alphabet for the spelling of it. Contrary to the Kurdish alphabet, the Turkish alphabet does not contain the letters W, Q and X.

The Turkish authorities consequently refuse to register names with the above mentioned letters. In the case Kemal Taskin et autres c. la Turquie, the European Court of Human Rights had to answer the question whether this refusal consists a breach of article 8 of the convention. Moreover, the Court also had to deal with the question whether or not the refusal to register these names is discriminatory as Turkish people with a double nationality who are registered in a third country and who wish to register in Turkey can keep the spelling of their names including the letter W, Q or X.

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