By Topic

Church Sexual Abuse in Belgium: Respecting Privacy or Punishing Those Responsible?

Stijn Smet Children's Rights, Conflicting Rights, Right to Private Life

In a previous post, Alexandra wrote about sexual abuse by members of the Church and possibly relevant case-law of the European Court of Human Rights. I will follow up on that post in this one.

The past week, the Belgian authorities have upped the ante in the fight against sexual abuse by members of the Catholic Church. An investigative judge ordered house searches in several buildings, including a cathedral, belonging to the Church. During the searches, the police looked for evidence of knowledge of – and thus, attempts to hide – the sexual abuse by the Church. They also seized the 475 personal files of victims that had reported their abuse to the so-called Commission Adriaenssens. The Commission had been set up by the Church itself as an organ of independent experts that would examine the sexual abuse by members of the Church in Belgium. Following the search and the confiscation of the files, the Commission decided to disband since it felt it could no longer fulfil its task. The President of the Commission expressed outrage over what he called a violation of the victims’ privacy. Members of the Church, going as high up as the Vatican itself, expressed similar outrage over the searches. The Vatican described these as worse than the practices during the Communist regimes. But also the victims whose files had been confiscated did not go unheard. One victim filed a complaint with the investigative authorities, claiming to be disadvantaged by their actions, in order to get insight into the files and closer involvement in the procedures. Other victims have joined together to, now that the Commission Adriaenssens has disbanded, demand a Parliamentary investigation into the crimes of sexual abuse by Church members.

The various reactions reveal that the house searches, and especially the seizure of the personal files of the victims that had stepped forward, pose difficult issues. I would divide the complaints into two different categories. The complaints of the Church and the Vatican about the manner in which the searches were conducted constitute the first category. The complaints of the Commission and the victims about the violation of the victims’ privacy constitute the second. I will discuss these in turn.

Continue reading →

Same-sex marriage case should go to the Grand Chamber: more on Schalk and Kopf v. Austria

Alexandra Timmer LGBT Rights, Prohibition of Discrimination, Schalk and Kopf v. Austria

Gay rights are one of the human rights issues of our time. The Strasbourg Court came out with an important but ultimately disappointing ruling on same-sex marriage last week (for a summary of the case, see Lourdes’ post). It is disappointing both for the reasoning and for the outcome (see below). Despite the fact that a case like this had clearly been coming for a long time, the Chamber’s ruling is sloppy and leaves much to be desired. Add this to the fact that the judges were divided by 4 to 3 on the issue whether Austrian law was discriminatory and I think this case is ripe for the Grand Chamber.

The judgment is not all bad. The Court takes an important step in recognizing that same-sex relationships can fall under the category of “family life” (art. 8). One might interpret this ruling as a “hidden but hopeful” message that same-sex marriage laws will someday – when a sufficiently strong European consensus exists on this issue – be legally required by the Court.

Still, I am more somber regarding the instrumental value of this judgment (as it stands) in the struggle for gay equality; I think that the signal that the majority sends is too weak to provide much support for the gay movement. My main concern is the lack of a finding of discrimination. Continue reading →

Jehovah’s Witnesses of Moscow v. Russia: Strange considerations, but good conclusion

Saïla Ouald Chaib Freedom of Religion, Jehovah’s Witnesses of Moscow v. Russia

On the 10th of June, the ECtHR issued a judgment about the religious community of Jehovah’s Witnesses of Moscow. In this case, the applicants firstly complained of a breach of article 9 of the Convention since the religious community was dissolved and its activities were permanently banned. The dissolution was ordered following allegations for luring minors into religious associations against their will and without the consent of their parents and for coercing persons into destroying the family, infringing the personality, rights and freedoms of citizens; inflicting harm on the health of citizens; encouraging suicide or refusing on religious grounds medical assistance to persons in life- or health-threatening conditions; and inciting citizens to refuse to fulfil their civil duties. The District Court found that the applicant community violated the right to freedom to choose one’s religion by resorting to active proselytising and “mind control”. The second complaint of the applicants was that the refusal for their re-registration constituted a breach or article 11 ECHR. The Court unanimously found a violation on both complaints.

Although I agree with the outcome in this case I find some parts of the reasoning very disturbing. Continue reading →

About crucifixes and headscarves in Dutch jurisprudence. Is there a difference between both?

Saïla Ouald Chaib Freedom of Religion

The Appeal Court of Amsterdam (Gerechtshof Amsterdam) issued on the 15th of June an interesting judgment concerning the wearing of crucifixes by the personnel of a private company that provides public transport services. The personnel of the company GVB must wear a uniform during working hours. The wearing of ornaments on their uniform such as a necklace or a brooch is forbidden. This judgment provoked a little discussion in our team. Bellow you will find a short summary of the case and several comments of some team members.

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When a Discrepancy is Not Necessarily a Discrepancy

Stijn Smet Biçici v. Turkey, Prohibition of Torture

Today I would like to discuss one particular aspect of a recent case, Biçici v. Turkey. This case concerned the arrest of Ms. Biçici, while she was participating in a peaceful demonstration, and her alleged ill-treatment during the arrest. The European Court of Human Rights found in favour of Ms. Biçici, ruling that the intervening authorities had used disproportionate force in hastily responding to the peaceful demonstration. The Court also found the intervention itself to be unnecessary and disproportionate. Both articles 3 and 11 had thus been violated. But it was close. The ruling on art. 3 was delivered by a narrow majority of 4-3.

What I would like to discuss is the Court’s use of the elements of proof adduced by the applicant. I am going out on a limb here, not being a medical expert. I hope one of our readers with specific medical expertise could either confirm or refute my argument.

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“I swear I am not an Orthodox Christian!” Oath taking rules in Greek penal law: Dimitras v. Greece

Saïla Ouald Chaib Dimitras v. Greece, Freedom of Religion

The general rule in the Greek penal law requires witnesses to take an oath on the Gospels. Accordingly witnesses are a priori considered to be of the Orthodox Christian faith. Individuals who have another religion or who do not have a religion must declare this explicitly to the judge during the hearing. When the witness follows a religion which is recognized or tolerated by the state, he or she can follow the oath taking rules of this religion. When the religion of the witness has no oath taking rules or when the witness has no religion a solemn declaration is sufficient.

In Dimitras v. Greece the Court examines whether the Greek legislator gives the possibility to witnesses to opt for the solemn declaration instead  of taking the oath, taking into account the negative aspect of the religious freedom protected by article 9 ECHR.

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Petrina v Romania – serious issues of interpretation and implementation of the Convention

Guest Blogger Conflicting Rights, Petrina v. Romania, Right to Reputation

Today, we are pleased to announce a guest post by Dragoş Bogdan* and Mihai Selegean**. Their post on the consequences of the defamation case Petrina v. Romania (14 October 2008, App. no. 78060/01) represents a welcome addition to some of our own posts on the Court’s defamation case-law. More information on the authors, who we thank warmly for their interesting contribution to our blog, can be found at the bottom of the post. Naturally, as is the case with all posts on our blog, the views expressed in the contribution reflect the personal opinion of the authors.


The Petrina Judgment raises several serious questions with respect to the interpretation and the implementation of the Convention, as follows:

–     It transforms the right of the Member States to sanction the excessive exercise of the freedom of expression (in accordance with Article 10) into an obligation to sanction (according to Article 8 ) and

–     It annihilates the margin of appreciation of the Member States as a result of the way in which it defines the conditions that give rise to the positive obligation of the States to sanction the abusive exercise of the freedom of expression (in particular the burden of proof and the factual basis)

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‘Unluxury problems’ of Europe

Maris Burbergs Dzhabrailovy v. Russia, Prohibition of Torture, Right to Life

In a book published in 2003 Manfred Nowak wrote: “The OAS [Organization of American States] in comparison [with the Council of Europe] is composed of a wide range of states including both the richest industrialized countries (United States and Canada) and the poorest countries of the world (e.g. Haiti), as well as democracies and military dictatorships that covered a good part of the entire hemisphere in the 1970s. Consequently, the human rights bodies of the OAS have always had to deal with far more than Europe’s ‘luxury problems’, such as the excessive duration of legal proceedings in Italy. Historically, and presently, OAS human rights bodies are challenged by widespread poverty, systematic torture and assassination of political dissidents, enforced disappearances and much more.”[1]  

It is impossible to draw a distinction like that from the Court’s case-law of the year 2009. The Court found 269 violations of Article 2 and 3 plus 145 violations of those articles because of lack of effective investigations. This makes it 1/6 of all the violations the Court found that year.[2]  

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Conscientious objection: unfortunate precedent should not survive in the Grand Chamber

Lourdes Peroni Bayatyan v. Armenia, Freedom of Religion

It is great news that the Grand Chamber has accepted the request for referral in the conscientious objection case of Bayatyan v. Armenia. Last October, against commonly accepted standards in the Council of Europe Member States (see, PACE, Recommendation 1518, 2001, paras. 2 and 3) and, despite Armenia’s official commitment to pardon conscientious objectors (see, PACE, Opinion No. 221, 2000, para. 13, iv, d), the Chamber upheld a Jehovah’s Witness conviction for refusing to perform military service on religious grounds. The European Court concluded that “Article 9, read in the light of Article 4 § 3 (b), does not guarantee a right to refuse military service on conscientious grounds.”

The applicant had asked the Court to examine the case “in the light of the evolution of the law and the current practice among member states, the greater majority of which had recognized the right of conscientious objection.” The Court admitted the fact that the majority of Member States had adopted laws providing for alternative service for conscientious objectors. Unfortunately, however, the Court did not proceed this way. Continue reading →

Political speech under threat?

Stijn Smet Conflicting Rights, Fleury v. France, Freedom of Expression

In the case of Fleury v. France of 11 May 2010, the European Court of Human Rights held that the freedom of expression of a politician, member of the opposition on municipal level, had not been violated by his criminal conviction for defamation of a public official, the mayor of the municipality.

The ruling of the Court in this case baffled me. Quite frankly, I do not agree with the judgment, nor do I understand it as it does not seem to fit into the extensive protection the Court offers to political speech. In that context, it is all the more remarkable that the judgment has been ruled unanimously. I have heard people describing the section that passed this judgment, the Fifth Section, as being one of the more conservative sections of the Court. I have also heard people argue that, upon examination of the case-law of the Court, it becomes apparent that this section hardly ever finds a violation against France. Could there lie an element of truth in this strong statement? This case would surely suggest so. And if that is the case, it is unacceptable and quite damaging to a Court that is expected to offer consistency throughout its jurisprudence and is regarded by many – also inside the Court itself – as playing a vital role in the harmonization of human rights protection in Europe.

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Turkey: voicing minority concerns in academic discussions

Lourdes Peroni Cox v. Turkey, Freedom of Expression

The European Court of Human Rights has recently ruled against a ban imposed on an American citizen’s re-entry into Turkey for past opinions concerning Kurdish and Armenian issues during her teaching activities in the eighties (Cox v. Turkey). The applicant had allegedly said to her university colleagues and students that the Turks had massacred the Armenians and assimilated the Kurds. She was expelled from Turkey and a ban imposed on her return. The Ministry of Interior held that the expulsion and subsequent ban were due to the applicant’s “separatist activities, which were incompatible with national security.” Continue reading →

A Strasbourg victory for the mentally disabled

Alexandra Timmer Disability, Kiss v. Hungary, Right to Free Elections, Stereotypes

The Strasbourg Court (Second Section) came out with a landmark judgment yesterday; Kiss v. Hungary. The applicant, Mr. Kiss, suffers from manic depression. Due to this condition he was placed under partial guardianship in 2005. In 2006, with the elections coming up, he realized that the Hungarian law forbade him to vote, as all persons put under (partial or complete) guardianship were disenfranchised. The Court holds that article 3 of Protocol 1 (right to free elections) is violated.

Kiss v. Hungary is a great case for a few reasons. To begin, this is the first time the Court refers to the recent United Nations Convention on the Rights of Persons with Disabilities (“the Disability Convention”). Thus the door is opened for further and more intensive use of this recent Convention. This will undoubtedly gladden all the proponents of a disability-sensitive case law.

But the part the Court’s reasoning that excites me the most is where they explicitly condemn the stereotyping indulged in by the Hungarian legislators. To my knowledge – and I readily admit I haven’t done thorough research on this topic yet – this is the first case where the Court explicitly employs an anti-stereotyping approach in a disability-context. Even though scholars, like Michael Perlin, have maintained for years that stereotypes pollute all aspects of disability law. Continue reading →

President of Belgian Constitutional Court Criticizes European Court of Human Rights

Stijn Smet Asylum Seekers

“The European Court of Human Rights is exceedingly transgressing its competence in asylum matters. The Court takes decisions on behalf of the national authorities, it enforces provisional measures despite not having the competence to do so and demands their immediate execution. It has granted property rights on unemployment benefits and has thus realized something that Karl Marx never could. The Court is being buried under new cases, partially caused by the fact that it has sneakily broadened its own competences.” Thus starts an interview with Marc Bossuyt, President of the Constitutional Court of Belgium, published by the Belgian newspaper Gazet van Antwerpen on 11 May 2010. Marc Bossuyt, also a Professor of International Law at the University of Antwerp and former Commissioner-General for Refugees in Belgium, was interviewed in connection with the upcoming release of his book “Strasbourg et les demandeurs d’asile: des juges sur un terrain glissant”. The original interview, in Dutch, can be found here. Below we will present a translation in English of the most important excerpts of a strong critique of the European Court of Human Rights, in asylum cases and beyond. We invite all of you to discuss the arguments raised by Marc Bossuyt!

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Tănase v. Moldova: multiple readings of a case concerning multiple nationality

Alexandra Timmer Right to Free Elections, Tanase v. Moldova

To be honest, our team’s first reaction when discussing the recent Grand Chamber judgment in the case of Tănase v. Moldova was rather dismissive.  We had the feeling that the Court was teaching Moldova the basics of what it means to be a democracy; a thing they would hardly do in a case concerning, say, Belgium, France or the Netherlands.

The case concerns Moldovan Law no. 273, which prohibits people with multiple nationalities sitting as Member of Parliament. This law was introduced a year before the general elections and was the third aspect of an electoral reform package, whose other measures consisted of raising the electoral threshold and banning electoral blocks. As the Court notes, “All the measures proposed had a detrimental impact on the opposition” (par. 168). This makes that the Court is not satisfied that the aim of the law was to secure loyalty of MP’s, as Moldova maintained (par. 170).

The Court puts it politely, but it is quite clear what the judges think of such exclusionary practices as adopted by the governing party. Continue reading →

Remembering Lautsi

Lourdes Peroni Freedom of Religion, Lautsi v. Italy

“When is a cross a cross?” was the heading of a post by Stanley Fish earlier this month in the NY Times Opinionator Blog. The entry referred to US Supreme Court’s recent ruling in Salazar v. Buono concerning a solitary Latin cross standing in the Californian desert as a memorial for those who fought in World War I. Alluding to the Establishment Clause jurisprudence, Fish notes that this case is the “latest chapter” of an “odd project of saving religion by emptying it of its content.” He argues that “[i]t has become a formula: if you want to secure a role for religious symbols in the public sphere, you must de-religionize them.”   Continue reading →

The chilling effect of 690, 000 euro

Maris Burbergs Handölsdalen Sami Village a.o. v. Sweden, Right to a Fair Trial

In the case of Handölsdalen Sami Village and Others v. Sweden the applicants argued that legal costs at a national level that amounted to 690, 000 euro were in breach of the right to access to court under Article 6.

The applicants were four Swedish Sami villages. The case concerned domestic proceedings about a disputed right of the Sami to use private land for winter grazing of their reindeer. Large numbers of landowners brought proceedings against villages, including the applicants, seeking to obtain a judgment forbidding them from using land without concluding a contract with the respective owner. The Sami villages contested the action. The District court found against the applicants. The court ordered the applicants to pay the landowners’ legal costs, amounting to approximately 400,000 euro. The applicants appealed. The court of appeal upheld the district court’s judgment and ordered the applicants to pay the landowners’ legal costs in the appeal proceedings, amounting to approximately 290,000 euro. The applicants appealed to the Supreme Court, which refused their leave to appeal.

In the proceeding before the Court in Strasbourg the applicants asserted that, given the high legal costs of the proceedings, they did not have an effective access to court. The applicants also stated that these costs can lead to bankruptcy of the villages. Continue reading →

Dutch Holocaust cartoon case: a valuable lesson for the Strasbourg Court?

Guest Blogger Conflicting Rights, Freedom of Expression

This guestblog is written by our colleague Hannes Cannie*

The criminal tribunal of Utrecht (the Netherlands) has rendered an interesting judgment (22 April 2010) in a case in which an alleged discriminatory cartoon was at stake. The Dutch branch of the Arab European League (hereafter, AEL), a movement in Belgium and the Netherlands that aims to advance the interests of Arab immigrant communities, had published different cartoons on various websites. One of these showed two Jewish men who study a pile of corpses lying under a sign with ‘Auswitch’ on it. One man says: ‘I don’t think they are Jews’, while the other replies: ‘We have to get to the 6.000.000 somehow’. After a complaint was filed, the Public Prosecutor eventually decided to start criminal proceedings against AEL and its president, who designed the cartoon, grounded on Article 137c of the Dutch Criminal Act. This Article penalizes the crime of public insult of a group of human beings, amongst others because of their race or religion.

Continue reading →

Would a Niqab and Burqa ban pass the Strasbourg test?

Lourdes Peroni Ahmet Arslan e.a. c. Turquie, Burqa ban, Freedom of Religion, Women's Rights

By Lourdes Peroni, Saïla Ouald-Chaib and Stijn Smet

Whether it is a Burqa or a Niqab, what is at stake is a face-covering veil. This veil is increasingly becoming the subject of heated discussion within Europe. In France, a bill that aims to prohibit its wearing is the subject of a national debate. Also at the level of the European Union certain members of the European Parliament are calling for a general ban on the wearing of face-covering veils.

In this context, the Belgian Chamber of Representatives recently passed an amendment to its Penal Code prohibiting the wearing of clothes that “completely or largely cover the face” and thus became the first European country to introduce what is popularly referred to as the Burqa ban. Although the Chamber of Representatives already approved it with near unanimity (136 votes in favor, two abstentions), the law is not yet definitive as it requires approval by the Senate (which will only discuss the proposed bill after the upcoming federal elections). Despite the fact that the proposed new article of the Belgian Penal Code does not mention the words Burqa or Niqab, and is thus neutral on its face, the Parliamentary discussions clearly show that the mentioned face-covering veils were the intended target of the new provision. If passed by the Senate under its current form, the ban would apply in all public spaces, including streets, parks, shops, public transport, airports, banks, and, of course, public buildings. An exception is introduced for certain cases, including for festivities such as carnival, in which the wearing of face-covering clothing remains allowed. Whoever violates the new law risks a fine of around € 100 and/or a prison sentence of 1 to 7 days. Rationales put forward for the ban include ‘security reasons,’ ‘public order,’ and ‘the protection of the dignity of women and gender equality’.

In this post we would like to analyze the Belgian ‘Burqa ban’ from the angle of the jurisprudence of the European Court of Human Rights.

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Mustafa and Armağan Akin v. Turkey: Not above children’s heads!

Saïla Ouald Chaib Children's Rights, Mustafa and Amargan Akin v. Turkey

The bulk of the cases appearing before the European Court of Human Rights concern length of proceeding cases that might not always be interesting for the public because of their technical character. However in a lot of other cases, the Court is  confronted with very shocking facts. Cases of torture by public authorities, but also cases concerning everyday problems, like divorcing couples and consequently the custody of the children. This is also the case in Mustafa and Amargan Akin v. Turkey. Continue reading →

Of Rights and Interests

Stijn Smet Conflicting Rights, Petrenco v. Moldova, Right to Reputation

On 30 March 2010 the European Court of Human Rights released its judgment in the case of Petrenco v. Moldova. The case concerned a newspaper article in which negative remarks were made about the applicant’s competence as a historian. The article further alleged that the applicant, a university professor and Chairman of the Association of Historians, had achieved his professional status due to cooperation with the Soviet secret services (KGB). The facts of the case were thus similar to those of an earlier case, Petrina v. Romania (14 October 2008, App. No. 78060/01), concerning a newspaper article alleging the involvement of the applicant with the former Romanian secret service Securitate.

In both cited cases, the person concerned instituted defamation claims at the domestic level. However, since those claims failed when it came to the assessment of the allegations of cooperation with the secret services, the applicants invoked a violation of art. 8 in front of the European Court of Human Rights.

I personally find these types of cases interesting, because they hold the possibility of offering further insight into the Court’s reasoning on the right to reputation under art. 8 and on the conflict that exists between the right to freedom of expression and the right to reputation in defamation cases.

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Missed Chance at Condemning Paternalism: S.H. and others v. Austria, Part Two

Alexandra Timmer S.H. and others v. Austria, Stereotypes

In a previous entry, Stijn commented on the case of S.H. and others v. Austria (see ‘How the outcome can be good, but the reasoning sloppy’). I agree with him on both counts; the outcome in S.H. is to be applauded, but the Court’s reasoning lacks bite.

At issue was the Austrian Artificial Procreation Act prohibiting the use of ova from donors and sperm from donors for in vitro fertilization. The Court found that there was no reasonable and objective justification for the difference in treatment between the applicants and couples which may make use of artificial procreation techniques without resorting to ova donation or couples which lawfully may make use of sperm donation for in vivo fertilization.

The Austrian Government argued that “ova donation might lead to problematic developments such as exploitation and humiliation of women, in particular of those from an economically disadvantaged background” (par. 49). The Court’s reply to this argument is, rightly, that potential future abuse is not a sufficient reason for prohibiting a specific procreation technique as a whole if it is possible to devise safeguards against such abuse (par. 77).

But what the Court fails to do is to condemn the Government’s argument. Why does this risk of exploitation and humiliation only pertain to women? Why can men not be exploited and humiliated when donating their sperm? The truth is that there is an invidious stereotype at work here that formed the underlying reason for the Austrian legislation. The stereotype is that women’s sexuality is something vulnerable, something holy that needs to be protected, while men’s sexuality is something active – if not aggressive. That is paternalism, not biology.

Prisoners’ voting rights and the rule of law

Lourdes Peroni Frodl v. Austria, Right to Free Elections

Once again, the Court has been called upon to decide on a case regarding prisoners’ disenfranchisement. In Frodl v. Austria, the applicant, convicted of murder and sentenced to life imprisonment, was denied inclusion in the electoral register on the basis of Section 22 of the National Assembly Election Act which provides that ‘anyone who has been convicted by a domestic court of one or more criminal offences committed with intent and sentenced with final effect to a term of imprisonment of more than one year shall forfeit the right to vote.’

In 2005, the Court had ruled against a blanket restriction on prisoners’ voting rights in Hirst v. the United Kingdom (no. 2). In finding a breach of Article 3 of Protocol No. 1, the Court emphasized that the disenfranchisement in the United Kingdom was a “blunt instrument” applied to all convicted prisoners, irrespective of the length of their sentences and irrespective of the nature or gravity of their offences and their individual circumstances.

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What is the European literary heritage?

Maris Burbergs Akdas v. Turkey, Freedom of Expression

In the case of Akdas v. Turkey the Court was called upon to decide on a seizure of a novel. But it turns out, this is not just a novel, it is something more.

The applicant published a Turkish translation of the erotic novel “Les onze mille verges” by the French writer Guillaume Apollinaire, which contains graphic descriptions of scenes of sexual intercourse, with various practices such as sadomasochism or vampirism.

The applicant was convicted under the Criminal Code for publishing obscene or immoral material liable to arouse and exploit sexual desire among the population. The seizure and destruction of all copies of the book was ordered and the applicant was given a “heavy” fine – a fine that may be converted into days of imprisonment.

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Are some expressions more equal than others?

Saïla Ouald Chaib Freedom of Expression

Exactly one week ago, a lecture was organized at the Belgian University of Antwerp with the following title: “(long) live God, away with Allah”. A group of fanatic Muslims were not pleased about this title and they called their members to attend the lecture. When the speaker started his lecture, the followers from the Islamic group started to disturb it by screaming slogans and insulting the speaker. Subsequently, everybody was asked to leave the room and the lecture was cancelled. This incident caused a lot of heated discussions in the Belgian press and at the political level. The mayor of Antwerp for example declared that he will sue the responsible people into court arguing that the city can not accept the right to freedom of expression to be undermined, asking a damage of 25,000 euro’s each time this right would be violated. Moreover the “community of the moderate Muslims” were asked by i.a. the minister of integration to openly and explicitly distance themselves from this incident. A week and a lot of news articles later, the discussion is still going on, but the peace is more or less restored. This is the right moment to shortly address this issue from a human rights perspective, bearing in mind the jurisprudence of the European Court of Human rights. Continue reading →

Zubczewski v Sweden: margin of appreciation as a blank check

Eva Brems Admissibility, Margin of Appreciation, Prohibition of Discrimination, Zubczewski v. Sweden

An observer of the Strasbourg case-law should always remember to include the inadmissibility decisions in her research. The changes in the Court’s procedures, introducing committees of three judges and judges sitting alone, have made this more difficult (those decisions are not on HUDOC), yet at the same time have resulted in a situation in which the inadmissibility decisions that figure on HUDOC are already a selection, since the most interesting ones are still likely to be dealt with by a chamber of seven. Inadmissibility decisions can be frustrating , because the Court’s reasoning in such cases tends to be quite succinct. This is particularly the case if you do not agree with the Court’s finding that a case is ‘manifestly ill-founded’.

This was my experience recently with the case of Zubczewski v Sweden. As a result of his marriage at the age of 63, this gentleman found his pension reduced with approximately 50 Euros per month. The reasoning behind this is the idea that persons who live together have lower expenses per head than persons living alone. Yet as Zubczewski’s wife did not have any income, this reasoning did not apply to his case. Total expenses of the household had increased while the pension had decreased. He claimed that the lack of an exception for his situation was discriminatory.

I do not spontaneously sympathize with men who invoke the economic dependency of their wives as a source of discrimination. Yet the Court’s reasoning in this case left me unsatisfied.

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How the outcome can be good, but the reasoning sloppy

Stijn Smet Prohibition of Discrimination, S.H. and others v. Austria

The judgment delivered on 1 April 2010 in the case of S.H. and others v. Austria concerned the use of donors for in vitro fertilization (IVF). The applicants, two couples, wished to have children, but medical reasons impeded both couples from having them the biological way. They had no choice but to rely on IVF with the use of donors for reproduction. For one couple this entailed using sperm from a donor to fertilize the female partner’s ovum, while for the other it involved using the male partner’s sperm to fertilize a donor’s ovum. However, Austrian law prohibited the use of sperm from a donor for IVF and excluded the use of donated ova under all circumstances. At the same time the law did not oppose IVF when the ovum and sperm were both taken from the partners and under strict conditions also allowed the donation of sperm for in vivo fertilization.

In its judgment, the Court found a violation of art. 14, taken in conjunction with the right to family life under art. 8, in relation to all applicants. The most interesting part of the judgment is the reasoning of the Court concerning the third and fourth applicant, the couple that wished to make use of donated ova. Continue reading →

Judge ≠ mathematician

Stijn Smet Minority Rights, Orsus and others v. Croatia

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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ECtHR v. Belgium on detention of children: part II

Stijn Smet Asylum Seekers, Children's Rights, Muskhadzhiyeva a.o. v. Belgium

On 10 January 2010 the European Court of Human Rights released its judgment in the case of Muskhadzhiyeva and others v. Belgium, a case concerning the detention of minor asylum seekers in a closed detention centre. The applicants in Muskhadzhiyeva and others were five Chechnyans: a mother and her four minor children. Following the dismissal of their asylum application, they had been detained in the closed detention centre “127bis”, in wait of their expulsion.

Belgium had already been convicted for the detention of unaccompanied minor asylum seekers in the same detention centre in Mubilanzila Mayeka and Kaniki Mitunga v. Belgium. However, in the case of Muskhadzhiyeva and others the children had been detained along with their mother and not alone. The circumstances of the case were thus different from the earlier one. Continue reading →

Is a more inclusive wind blowing through the Court?

Saïla Ouald Chaib Minority Rights, Munoz Diaz v. Spain

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?”

Saïla Ouald Chaib Kemal Taskin e.a. c. la Turquie, Minority Rights

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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Religion and the Public Space

Lourdes Peroni Ahmet Arslan e.a. c. Turquie, Freedom of Religion

Once more, the Court has been called to decide on a case concerning the public manifestation of beliefs through religious attire, this time in the open public square (Ahmet Arslan et Autres c. Turquie). The outcome is certainly positive. However, prospects for the wearing of religious garment inside public institutions are far from clear.

The case concerns the criminal conviction of members of a religious group for wearing their religious attire in public, on occasion of a ceremony held at a mosque in Ankara. After touring the streets of the city while wearing their distinctive clothing, and following various incidents, they were arrested and placed in police custody. Criminal proceedings under anti-terrorism laws followed. The day of the hearing, applicants appeared in court wearing their religious garments, including a turban which some of them refused to remove when asked to by the court. In the end, they were all convicted for violating Act 671 of 28 November 1925, which abolishes the use of religious headgear (except for religious officials who are authorized) and Act 2596 of 3 December 1934, which imposes a ban on wearing religious attire other than in places of worship or at religious ceremonies.

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The Convention, the Church and Child Abuse

Alexandra Timmer Children's Rights

The torrent of recent accusations of child abuse my members of the Catholic Church has included the Netherlands. In the past weeks, the Dutch newspapers have been full of horrendous stories of sexual abuse of children by priests. Now, a newspaper reports that lawyers from a foundation that supports the rights of victims of sexual abuse have said that the State can be held responsible for these acts under the European Convention of Human Rights.

They might just be right. The lawyers refer to the case of E. and Others v. the UK of 2002. That case concerned four children who were sexually and physically abused by their step-father during the ’60s, ’70s and ’80s. The Court found that the social sevices had failed to “discover the exact extent of the problem and, potentially, to prevent further abuse taking place.” (par. 97). Therefore, the Court judged that a violation of article 3 (freedom from torture or inhuman or degrading treatment) had taken place.

These facts seem to fit the case of the abuse by members of the church well. Both cases concern abuse perpetrated some time ago; both cases concern negligence by the State to investigate what was going on. However, the Court did not give a clear ruling on the issue of time limits in E. v.UK.

Do the victims from the ’50s, ’60s and ’70s have a chance in Strasbourg? I think so.

Alexandra Timmer

R.C. v. Sweden: the burden of proof in asylum cases

Saïla Ouald Chaib Asylum Seekers, Prohibition of Torture, R.C. v. Sweden

Sweden is recently convicted by the European Court of Human Rights in the CASE OF R.C v. SWEDEN concerning an Iranian asylum seeker. On 9 march 2010 the Court issued a judgment where it held by six votes to one that the deportation of the applicant to Iran would consist a violation of article 3 ECHR. Judge Fura expressed a dissenting opinion.

R.C. submitted to have participated in a demonstration in 2001 against the Iranian regime following which he had been arrested and tortured and detained for fourteen months. Although he had never been formally tried, he appeared several times before a revolutionary court, where a decision had to be made about the maintenance of his detention. During one of these religious hearings, the applicant managed to escape with the help of a friend. The applicant submitted also that he had been subjected to torture during his detention. He provided a medical certificate of February 2005 carrying the doctor’s conclusion that the injuries found on his body could well originate from torture. When R.C. arrived in Sweden in 2003 he immediately requested asylum near the Swedish Migration Board. This request was refused as the national authorities doubted the credibility of his account of events underlining that revolutionary courts were generally not open to the public, that the applicant had not substantiated his allegations and found that there was no proof that he would be tortured or ill treated if he returned to Iran. The appellate courts also rejected his asylum request.

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Strasbourg dances around the Cypriot question

Stijn Smet Admissibility, Demopoulos a.o. v. Turkey, Right to Property

Recently, the Strasbourg Court declared inadmissible a series of applications by Greek-Cypriot applicants claiming a violation of their property rights due to the continued occupation of the Northern part of Cyprus by Turkey.

The eight admissibility cases were the first such applications to be examined by the Court following the pilot-judgment Xenides-Arestis v. Turkey (app. no. 46347/99, 2006) in which the Chamber had found a violation of articles 8 and 1 Protocol 1. In Xenides-Arestis v. Turkey the Court had instructed Turkey to introduce a remedy which secures genuinely effective redress for the Convention violations.

In the decisions of Demopoulos and others v. Turkey and 7 similar cases, the Grand Chamber of the Court declared the applicants’ claims inadmissible due to non exhaustion of domestic remedies. The Grand Chamber was of the opinion that the amended Compensation Law, as enacted by the authorities of the “Turkish Republic of Northern Cyprus” (“TRNC”) following the pilot-judgment, provided an accessible and effective framework for redress. It came to this decision despite, inter alia, claims of a lack of subjective impartiality of the responsible body, the Immovable Property Commission (IPC), which features Turkish military personnel among its members, who are all appointed by the “TRNC” President.

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Some clarity in defamation case-law

Stijn Smet Conflicting Rights, Fedchenko v. Russia (no. 2), Freedom of Expression

On 11 February 2010, the European Court of Human Rights released an interesting judgment in an art. 10 defamation case, Fedchenko v. Russia (no. 2). The case concerned a conviction for defamation of Mr. Fedchenko, the editor of a regional newspaper, after an article had been published in his newspaper in which allegations of mismanagement were made against the Head of a regional Department of Education.

The judgment contains several interesting elements. However, here I will only discuss it in light of the standards of proof required from defendants in defamation cases. In this context, the Court traditionally makes a division between statements of fact and value judgments, the first being susceptible to proof, while the latter are not. The case-law of the Court in general is a bit sketchy in this respect. The Court has in the past sometimes demanded complete proof of factual allegations, while it at other times has found varying degrees of “a sufficient factual basis” to suffice. In Fedchenko v. Russia (no. 2), the Court sheds some light in this respect by clearly advocating the use of lenient standards of proof in certain circumstances.

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