Prohibition of Discrimination

The Challenges of Saying ‘I do’ for same-sex couples: The Human Rights Centre submits a Third Party Intervention in transnational same-sex marriage case

Guest Blogger Article 12, LGBT Rights, Prohibition of Discrimination, same-sex marriage, Szypuła v. Poland and Urbanik and Alonso Rodriguez v. Poland

By Claire Poppelwell-Scevak (PhD Researcher at the Human Rights Centre, Ghent University) and Sarah Den Haese (PhD Researcher at the Human Rights Centre, Ghent University)

The Human Rights Centre of Ghent University[1] (Belgium) recently submitted a third party intervention (TPI) before the European Court of Human Rights in the communicated case of Szypuła v. Poland and Urbanik and Alonso Rodriguez v. Poland. The issue is the restrictive marriage eligibility measures in Poland that prevent Polish nationals who are in a same-sex relationship from enjoying their right to marry abroad in countries which allow for same-sex marriage (in these two cases, Spain). In our submission, we argue that this case raises important issues under the right to marry (Article 12 ECHR), taken alone and in conjunction with the prohibition of discrimination (Article 14 ECHR), providing the Court with an important opportunity to clarify the scope of the right to marry, specifically in a transnational context, of same-sex couples. Further, we invite the Court to clarify the obligations weighing on both of the member states concerned. An overview of the facts as well as a summary regarding our main arguments are provided hereunder.

Facts

The application consists of two cases, the first concerned Mr Szypuła and his partner, and the second involved Mr Urbanik and his partner Mr Alonso Rodriguez. Both couples wished to marry in Spain, where same-sex marriage has been legal since 2005. However, if one of the prospective spouses is not a Spanish national, then it is a requirement under Spanish law that the couple submits a marriage eligibility certificate as proof that neither person is currently married. In Poland, this marriage eligibility certificate requires the name and gender of the intended partner. This requirement thus notifies the Polish authorities of the possibility that a same-sex marriage will be contracted abroad.

Mr Sypuła and his partner applied for this marriage eligibility certificate in October 2010 at the Warsaw Civil Status Office. They were denied this certificate and pursued this decision to the Supreme Court where their cassation appeal was rejected in 2014. Similarly, Mr Urbanik applied for this marriage eligibility certificate in July 2014 indicating that he intended to marry his partner in Spain. His request for this certificate was denied as the Warsaw Civil Status office stated that ‘it would be contrary to the Polish law according to which marriage could only be concluded between a man and a woman’. Mr Urbanik’s final domestic appeal was dismissed in October 2015.

Third Party Intervention Arguments

Our TPI focused on four distinct arguments, the first was the Court’s interpretation of Article 12 in the context of same-sex couples. The Court has acknowledged that Article 12 can ‘no longer […] in all circumstances be limited to marriage between two persons of the opposite sex’ (Schalk and Kopf v. Austria, para 61; Oliari and Others v. Italy, para 140). The issue has been, to date, for the Court that Article 12 cannot be interpreted so as to ‘impose an obligation’ on a Member State to allow for same-sex couples to marry (Schalk and Kopf, para 61-63). However, in this case, the issue was not that the couples had been barred from getting married in Spain. In fact, their right to marry had been granted by Spain when same-sex marriage was legalised in 2005. The problem was that the Polish Government were actively interfering with the applicants’ enjoyment of this right by not granting a marriage eligibility certificate to the couples on the basis of their sexual orientation. The central tenet of our Article 12 argument, therefore, rests on Poland being obliged under Article 12 to not hinder the effective enjoyment of its nationals of their right to marry in another country.

This argument is novel in the sense that Article 12 and same-sex marriage have always been discussed by the Court from the perspective that the impediment to Article 12 is based in the Member State where the same-sex couples wish to marry. However, the applicants’ situation provides a distinct difference as they have prima facie been granted this enjoyment of the right to marry by Spain, and it is Poland that is interfering with their enjoyment of the said right.

Our second argument turned to the issues raised under Article 12 in conjunction with Article 14. We argue that differential treatment based solely on the grounds of sexual orientation is unacceptable under the Convention (Salguiero da Silva Mouta v. Portugal). However, the wide margin granted to Member States under Article 12, has allowed for Member States to continue denying same-sex couples access to marriage. That being said, where ‘a difference in treatment is based on sexual orientation, the State’s margin of appreciation is narrow’ (Abdulaziz, Cabales and Balkandali v. the United Kingdom; Konstantin Markin v. Russia) and ‘differences based on sexual orientation require particularly serious reasons by way of justification or [….] particularly convincing and weighty reasons’ (X and Others v. Austria). Importantly, this case, once again, revolved around the discriminatory actions stemming from the Member State of nationality (Poland), not the Member State (Spain) which had granted the applicants access to marriage. In this sense, our submission highlights the difficulty in conceiving ‘weighty reasons’ that could justify a Member State hindering its nationals from contracting a marriage abroad.

Furthermore, we invite the Court to take into consideration the situation for LGBTQI+ people living in Poland and the harassment they experience in their day-to-day lives. This is a particularly crucial facet of our submission because the wide margin the Court has granted to Member States under Article 12 is based on the Court’s implicit presumption of good faith that Member States are reserving marriage for different-sex couples on the basis of Convention compliant grounds. For example, the Court’s finding in Schalk and Kopf, that the institution of marriage has ‘deep-rooted social and cultural connotations which may differ largely from one society to another’ allows for Member States to limit marriage to different-sex couples under the Convention.However, we argue that this presumption of good faith needs to be considerably restricted where there is evidence of large-scale exclusion and discrimination of a minority group, the likes of which can be clearly witnessed in Poland.

Lastly, our final argument focuses on the applicability of private international law rules. Contrary to what one might think, private international law is in essence national law and regulates the relationship between different (national) legal systems. The question whether a Polish national can marry his same-sex partner in Spain is thus governed by Spanish private international law rules. Moreover, private international law rules also determines the applicable law and stipulate if and how a marriage validly contracted abroad can be recognised. With regard to (same-sex) marriages, there are no international or supranational instruments dealing with the question of international jurisdiction, applicable law and/or recognition. As a result, each State has their own rules in place. However, national legislators (when drafting private international law rules) and administrative authorities and judges (when applying private international law rules) are bound by the rights and guarantees enshrined in the ECHR, the Charter of Fundamental Rights of the European Union and the Treaty on the Functioning of the European Union.

As stated above, Article 12 ECHR does not oblige Member States to legalise same-sex marriages. Currently, each Member State can freely determine whether or not it allows same-sex marriages. In our TPI, we argue that the right to reserve the institution of marriage for heterosexual couples does not entail the right to hinder its nationals from marrying (as a same-sex couple) abroad. By allowing Member States to prevent their nationals from contracting a marriage abroad, their national restrictions are given extraterritorial application. The Spanish requirement for non-nationals to present a marriage eligibility certificate places a State like Poland, which does not allow for same-sex marriage, in a position where it can circumvent both ECtHR and CJEU case-law by effectively preventing access to same-sex marriage in another country altogether. While the ECtHR has made clear that Member States are obliged to have a legal framework in place providing for the recognition and protection of same-sex unions (Oliari and Others v. Italy and Orlandi and Others v. Italy), the CJEU has ruled that the same-sex spouse of a mobile Union citizen must be granted a right of residence irrespective of whether national law allows same-sex marriages (Coman and Others).

To protect nationals from States prohibiting same-sex marriages, the national legislation of States allowing same-sex marriages can make use of the habitual residence as a connecting factor or can invoke the positive public policy exception when the applicable law is determined by the nationality of the prospective spouse. For example, in the Netherlands (Article 28 Book 10 Dutch Civil Code), Luxembourg (Article 171 Luxembourg Civil Code) and Sweden (Ch. 1 § 1 Act (1904:26 p. 1) on Certain International Relationships on Marriage and Guardianship), the civil status registrar will apply its own law (allowing same-sex marriage) even if the (one of the) prospective spouse(s) are/is not a national. The country of habitual residence is decisive. In Austria (Article 17 Austrian Code of PIL) and Belgium (Article 46 Belgian Code of PIL), on the other hand, nationality is the only connecting factor. This means that the civil status registrar will have to apply foreign law. However, if the designated law precludes same-sex marriage, the civil status registrar will apply his own law (allowing same-sex marriage) and thereby circumventing the prohibition on same-sex marriage.

Unfortunately, the use of habitual residence as a connecting factor or the presence of a positive public policy exception does not always guarantee the right to get married. Member States allowing same-sex marriage often also demand documentary evidence: a birth certificate, a certificate of legal capacity to marry, a certificate of marital status, etc. By requesting documents originating from Member States prohibiting same-sex marriage, the latter States can still prevent the formation of a same-sex marriage by simply refusing to issue the requested documents. As held above, we argued in our TPI that by refusing to issue these documents, Member States overstep their margin of appreciation. Although Member States have the right to prohibit same-sex marriage on their territory, they cannot prevent their nationals from making use of the right to get married in a country allowing same-sex marriage.

In addition, we criticise the unwillingness of the Spanish authorities to contract the marriage without the requested marriage eligibility certificate. Although the case has only been lodged against Poland, the refusal of Spain could also give rise to human rights violations. Bearing in mind the genesis and spirit of the EU Regulation 2016/1191 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union, EU nationals should be protected against bureaucratic procedures. If a person’s personal information, nationality, marital status, etc. has already been established, there is no need to request more recent or a specific type of documents.

[1] For the Human Rights Centre the team consisted of Prof. Dr. Eva Brems, Sarah Den Haese, Dr. Laurens Lavrysen, Claire Poppelwell-Scevak, Anne-Katrin Speck, Prof. Dr. Jinske Verhellen, and Judith Vermeulen.

Molla Sali v. Greece: a pyrrhic victory following just satisfaction judgment? 

Guest Blogger Just Satisfaction, Molla Sali v. Greece, Prohibition of Discrimination

By Adiba Firmansyah, LLB graduate from Middlesex University Dubai, soon to start as an LLM student at King’s College London

In its principal judgment in Molla Sali v. Greece, delivered on 19 December 2018, the Court held that there had been a violation of Article 14 ECHR in conjunction with Article 1 of Protocol No. 1. The case concerns a complaint by Ms Molla Sali, a widow to a Greek national from the Muslim minority, about the application of Sharia law to an inheritance dispute regarding her husband’s Greek and Turkish properties (a greater analysis of the merits of this case can be found here). The husband’s initial wish, expressed in a will drawn up in accordance with Greek civil law, to bequeath the whole of his estate to his wife (the applicant). However, the Greek courts considered that the will was devoid of effect and instead applied principles from Muslim inheritance law which, in Greece, applied specifically to Greeks of Muslim faith. The applicant was therefore deprived of 3/4 of her inheritance as a result, and the deceased husband’s sisters were subsequently recognised as joint beneficiaries.

The Court reserved the issue of just satisfaction under Article 41 to be decided at a later stage. In its just satisfaction judgment delivered on 8 June 2020, the Court held that it would be appropriate redress for the violations of the applicant’s rights if measures were taken by Greece so as to ensure that she retained the property left to her in Greece – but not in Turkey. It also held that if these measures are not taken within one year, Greece must pay the applicant pecuniary damages.

This judgment should be seen against the backdrop of the allocation of just satisfaction by the Court which has become increasingly controversial. As Abdelgawad notes, ‘Article 41 is probably one of the provisions which have raised the most important difficulties to judges over the years’. Given that the issue of just satisfaction is usually decided with scant legal reasoning and with only occasional allusions to equity and necessity as the foundational principles for the determination of compensation, the Molla Sali case therefore provided an opportunity for the Court to discuss the application of Article 41 in greater depth in a separate judgment.

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Human Rights Centre submits a third party intervention in case concerning the right to family life of transgender parents and their children

Guest Blogger A.M. and Others v. Russia, Children's Rights, Prohibition of Discrimination, Right to Respect for Family Life, Transgender rights, Uncategorized

Judith Vermeulen is a doctoral researcher and a member of the Law & Technology research group, the Human Rights Centre and PIXELS at Ghent University.

The Human Rights Centre of Ghent University (Belgium)[1] submitted a third party intervention (TPI) before the European Court of Human Rights in the communicated case of A.M. and Others v. Russia. The issue is the restriction of a trans woman’s parental rights in view of her gender identity. In our submission, we argue that this case raises important issues under the right to respect for family life (Article 8 ECHR), taken alone and in conjunction with the prohibition of discrimination (Article 14 ECHR), providing the Court with an important opportunity to clarify the standards in the area of human rights protection of trans persons and children. An overview of the facts as well as a summary regarding our main arguments are provided hereunder. Continue reading →

The Court’s first ruling on Roma’s access to safe water and sanitation in Hudorovic et al. v. Slovenia: reasons for hope and worry

Guest Blogger Hudorovic et al v. Slovenia, Prohibition of Discrimination, Right to Respect for Family Life, Right to Respect for Home, Right to Water, Uncategorized

This blogpost is written by Valeska David who is an Affiliated Researcher at the Human Rights Centre of Ghent University and Assistant Professor of International Law at University of Navarra. She has recently published the book ‘Cultural Difference and Economic Disadvantage in Regional Human Rights Courts: An Integrated View’ (Intersentia, 2020).

On 10 March 2020, the Strasbourg Court delivered its judgment in Hudorovic et al. v. Slovenia (App. nos. 24816/14 and 25140/14). The case deals with two complaints from Roma families who have been living in informal settlements without access to water, sanitation, sewage, and electricity for decades. The Court has previously dealt with the living conditions of Roma irregular settlements (e.g. Winterstein and Yordanova) as well as with the contamination of water resources resulting in health and environmental risks (e.g. Dzemyuk and Dubetska). This is the first time, however, that it has to examine whether the right to access safe drinking water and sanitation is protected by the Convention (particularly under Article 8 ECHR). This important question is furthermore posed in relation to the social group most affected by inequality in access to water in the first European country to make water a constitutional right. The case understandably attracted third party interventions from the European Roma Rights Centre and the Human Rights Centre of Ghent University, the latter available here.

Access to clean water and sanitation might sound too basic to be an issue in today’s Europe. But the truth is that securing universal access to such essential goods continues to be a pending challenge, especially for Roma people. At a time in which the European Parliament and the Council are discussing the adoption of a so-called Drinking Water Directive,[1] the Strasbourg Court is being called to play its part. The Court can significantly contribute to develop common minimum standards to ensure that everyone, especially those historically discriminated against can effectively enjoy water rights in Europe. From this perspective, however, this post argues that the judgment in Hudorovic offers a mixed picture, one of both hope and worry. Before explaining why, I shall briefly summarise the facts of the case and the Court’s findings.   Continue reading →

A picture of a same-sex kiss on Facebook wreaks havoc: Beizaras and Levickas v. Lithuania

Guest Blogger Beizaras and Levickas v. Lithuanaia, Effective remedy, hate speech, LGBT Rights, Prohibition of Discrimination

Ingrida Milkaite is a PhD researcher in the research group Law & Technology at Ghent University, Belgium. She is working on the research project ‘A children’s rights perspective on privacy and data protection in the digital age’ (Ghent University, Special Research Fund) and is a member of the Human Rights Centre at the Faculty of Law and Criminology at Ghent University and PIXLES (Privacy, Information Exchange, Law Enforcement and Surveillance).

Two young men publicly posted a photograph of themselves kissing on Facebook. The post ‘went viral’ and attracted around 800 comments, most of which were hateful. Some of the comments featured suggestions to burn, exterminate, hang, beat, castrate, and kill the two men as well as gay people in general. The national authorities, while acknowledging that some comments were ‘unethical’, refused to launch a pre-trial investigation for incitement to hatred and violence against homosexuals. They considered that the couple’s ‘eccentric behaviour’ had been provocative and that launching an investigation in this case would be a ‘waste of time and resources’. The judgement in the case of Beizaras and Levickas v. Lithuania (Application no. 41288/15) was published on 14 January 2020. The ECtHR found a violation of Article 14 ECHR in conjunction with Article 8 ECHR, as well as a violation of Article 13 ECHR. Continue reading →

Gender-based violence triggers differential treatment in housing benefit case

Guest Blogger J.D. and A. v. the United Kingdom, Prohibition of Discrimination, Social welfare

By Katarina Frostell, Project Manager and PhD Candidate, Institute for Human Rights, Åbo Akademi University, Finland

On 24 October 2019, the European Court of Human Rights delivered its judgment in J.D. and A. v. the United Kingdom, in the so-called bedroom tax case. In its judgment, the Court applied a discrimination analysis on the reduction of housing benefits involving two single mothers, whose housing benefits were reduced following a change in the national housing regulations. The applicants argued that they should be treated differently than the mainstream recipients of the benefit due to their special circumstances linked to disability and gender-based violence. In the second case involving gender discrimination, the Court found with five votes to two, a violation of Article 14 in conjunction with Article 1 of Protocol 1 on the right to property. The Court dismissed the claims of discrimination on the grounds of disability in the first case. Two judges submitted a partly dissenting opinion. Continue reading →

Yeshtla v. the Netherlands: a missed opportunity to reflect on the discriminatory effects of States’ social policy choices

Guest Blogger Poverty, Prohibition of Discrimination, Right to Respect for Family Life, Vulnerability, Yeshtla v. the Netherlands

By Fulvia Staiano, Adjunct Professor of International Law and European Union Law (Giustino Fortunato University)

On 15 January 2019, the European Court of Human Rights (ECtHR) delivered an inadmissibility decision on the case of Emabet Yeshtla v. the Netherlands. In this case, the ECtHR was asked to determine whether the withdrawal of the applicant’s housing benefits (motivated by the fact that she cohabited with an unlawfully resident son) had breached her right to respect for private and family life under Art. 8 of the European Convention on Human Rights (ECHR), alone and in conjunction with the prohibition of discrimination under Art. 14 ECHR. This case raised interesting questions on the potential impact of social assistance and welfare policies on recipients’ family life, as well as on the discriminatory effects of domestic norms that use social benefits as a tool to discourage irregular residence. Regrettably, the ECtHR dismissed this case without a thorough consideration of such questions. Continue reading →

Judgment of Burlya and Others v. Ukraine: Local authorities held accountable for violating Convention rights of Roma residents in pogrom

Guest Blogger Burlya and Others v. Ukraine, Prohibition of Degrading Treatment, Prohibition of Discrimination, Racism

By Tess Heirwegh, PhD researcher at the Human Rights Centre, Ghent University

This blog post will focus on the recent case of Burlya and Others v. Ukraine to highlight the negative role that local authorities may play in human rights realisation and why it is essential that the Court held them explicitly accountable for it. In this judgment of 6 November 2018, the Strasbourg Court dealt with the complaints of 19 Ukrainian nationals of Roma ethnicity following a pogrom by village residents against their houses. First, the Court held that this attack had undoubtedly been motivated by anti-Roma sentiment. Second, it stated that the applicants who had been forced to flee their homes due to this attack had suffered degrading treatment. One important factor for this finding was the local authorities’ attitude during the events, namely the appearance of their official endorsement for the attack, as well as the ineffective investigation into the crime. Therefore, the Court found a violation of both the substantive and procedural aspect of Article 3, taken in conjunction with Article 14 ECHR. Moreover, these findings were sufficient for the Court to rule that Article 8, taken in conjunction with Article 14 ECHR, had been violated as well. Continue reading →

Of firearms and weak women: sex discrimination in Hülya Ebru Demirel v. Turkey

Guest Blogger Hülya Ebru Demirel v. Turkey, Prohibition of Discrimination, Women's Rights

Dr. Alexandra Timmer was one of the co-founders of this blog in 2010. She is assistant professor human rights law at Utrecht University, and acting specialist coordinator gender equality of the European network of legal experts in gender equality and non-discrimination.

Hülya Ebru Demirel v. Turkey is a case concerning sex discrimination in employment. A state-run regional electricity company refused to appoint the applicant because she was a woman, and the ECtHR duly found a violation of Article 14 ECHR. The judgment is largely a redux of Emel Boyraz v. Turkey (December 2014), which was based on similar facts. Demirel and Boyraz are interesting to discuss, as there are very few ECtHR cases concerning sex discrimination in employment. Unfortunately, as this blogpost will argue, the Court failed to address the structural hurdles that the applicants, because they are women, faced in the labor market. The State relied on obvious gender stereotypes, but the Court’s reasoning does not enter into that.  Continue reading →

Skullcap in the Courtroom: A rare case of mandatory accommodation of Islamic religious practice

Eva Brems Freedom of Religion, Hamidović v Bosnia and Herzegovina, Prohibition of Discrimination

In Hamidović v Bosnia and Herzegovina (5 December 2017), the Fourth Section of the Court found a violation of articles 9 and 14 ECHR on account of the punishment of a witness for wearing an Islamic skullcap in the courtroom. As almost all claims for accommodation of Islamic religious practice have failed before the Court, this is an important case. The Court reaffirms member states’ wide margin of appreciation in this field, yet this judgment makes clear that such a margin is nevertheless not unlimited. Continue reading →

Same Same But Different: A heterosexual couple denied registered partnership by the ECtHR

Claire Poppelwell-Scevak LGBT Rights, Prohibition of Discrimination, Ratzenböck and Seydl v Austria, Sexual Minorities

By Claire Poppelwell-Scevak, FWO Research Fellow, Human Rights Centre (Ghent University)

On 26 October 2017 the European Court of Human Rights held in Ratzenböck and Seydl v Austria that Austria’s registered partnership law, which is only open to homosexual couples, did not violate the European Convention on Human Rights by denying this registered partnership to a heterosexual couple. The judgment given by the seven member – although there was a two judge dissenting opinion – bench can be seen as a warning to future same-sex marriage proponents that their claims will not be favourably assessed. Continue reading →

Strasbourg fails to protect the rights of people living in or at risk of poverty: the disappointing Grand Chamber judgment in Garib v the Netherlands

Valeska David Freedom to Choose One’s Residence, Garib v. the Netherlands., Poverty, Prohibition of Discrimination

By Valeska David and Sarah Ganty, PhD researchers at Ghent University and Université Libre de Bruxelles

On November 6th the Grand Chamber of the European Court of Human Rights issued its judgment in Garib v. the Netherlands (Application n° 43494/09). It thereby confirmed the Chamber’s finding that refusing a housing permit to a single mother living on social welfare on account of legislation imposing minimum income requirements to reside in a number of hotspot areas of Rotterdam, did not violate her freedom to choose her residence (Article 2 of Protocol 4 ECHR). While the applicant and our third party intervention invited the Grand Chamber to examine the case also under Article 14 (prohibition of discrimination) read in conjunction with Article 2 of Protocol 4 ECHR, the Grand Chamber declined to do so. Five judges, rightly so, annexed three highly critical dissenting opinions. As we shall show in this post, this is a deeply disappointing judgment in terms of both reasoning and outcome.

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Difference in Treatment on the Ground of Sex Arising from Penal Policy Issues: Alexandru Enache v. Romania

Guest Blogger Alexandru Enache v. Romania, Prisoners, Prohibition of Discrimination

By Beril Onder, PhD researcher at Ghent University and University of Strasbourg

On 3 October 2017 the Fourth Section of the Court delivered the judgment in Alexandru Enache v. Romania. The case concerned a discrimination complaint under Article 14 read in conjunction with Article 8 of the Convention, regarding a special measure granting women stay of execution of their prison sentences if they were pregnant or had a child under the age of one.[1] The issue concerned the difference in treatment between men and women arising from the penal policy, like the recent Grand Chamber judgment Khamtokhu and Aksenchik v. Russia, as the applicant was refused this stay of execution based solely on his gender. The Court, in both judgments, left a wide margin of appreciation to the State Parties, and supported its conclusion by referring to the international instruments addressing the needs of women for the protection of pregnancy and motherhood. However, both judgments can be considered problematic for different reasons from a perspective of gender stereotypes. Corina Heri, in her comment, already discussed the problems related to gender stereotypes in Khamtokhu and Aksenchik. The following comments will focus on the judgment in Alexandru Enache v. Romania. Continue reading →

Age and Gender Discrimination: Laudable Anti-Stereotyping Reasoning in Carvalho Pinto v. Portugal

Lourdes Peroni Carvalho Pinto de Sousa Morais v. Portugal., Intersectionality, Prohibition of Discrimination, Stereotypes

Those interested in stereotyping and intersectional discrimination might not want to miss the Court’s judgment in Carvalho Pinto de Sousa Morais v. Portugal. The compensation awarded domestically to a 50-year-old woman who could not have sexual relations after a failed operation was reduced, partly, because of age and gender stereotypes. After rejecting the use of gender stereotypes of women as primary child-carers in Konstantin Markin v. Russia, the Court now condemns the use of stereotypes about female sexuality in domestic judicial reasoning. In this post, I briefly discuss two points the judgment made me think about: the need for comparison in discrimination cases and implicit stereotyping.

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Bayev and Others v. Russia: on Judge Dedov’s outrageously homophobic dissent

Laurens Lavrysen Bayev and Others v. Russia, Freedom of Expression, LGBT Rights, Prohibition of Discrimination

Earlier this week, we published a blog post by Pieter Cannoot and Claire Poppelwell-Scevak on the judgment of Bayev and Others v. Russia in which the Court held that Russia’s so-called gay propaganda law violated the European Convention. In this blog post, I will not further dwell upon the outcome of the case or the reasoning by the majority. However, it is necessary to highlight and protest against the dissenting opinion by Judge Dedov. In his dissent, the Russian judge has crossed a line by making outrageously homophobic statements that are unworthy of a judge at the European Court of Human Rights. Continue reading →

ECtHR finds Russia’s gay propaganda law discriminatory in strong-worded judgment

Guest Blogger Bayev and Others v. Russia, Freedom of Expression, LGBT Rights, Prohibition of Discrimination

By Pieter Cannoot, PhD researcher, Human Rights Centre (Ghent University) and Claire Poppelwell-Scevak, FWO Research Fellow, Human Rights Centre (Ghent University)

On 20 June 2017, the European Court of Human Rights issued a particularly strong-worded judgment in the case of Bayev and Others v. Russia. The Court not only found Russia’s legislative prohibition of the ‘promotion of homosexuality’ among minors to be a violation of Article 10 and Articles 10 j. 14 ECHR, but also did so in a well-reasoned, straightforward judgment that easily set aside every argument by the Russian Government. The boldness of the judgment for the protection of LGB rights heavily contrasts with the dissenting opinion of Judge Dedov, whose inexcusable assimilation of homosexual persons with child abusers is a black mark on the Strasbourg Court. Continue reading →

Škorjanec v Croatia: victims of racist hate-crime “by association” protected by ECHR

Saïla Ouald Chaib Prohibition of Degrading Treatment, Prohibition of Discrimination, Racism

When criminal offences are committed out of hate towards people with a particular skin color, gender, religion, sexual orientation, etc; this hate component is often considered to be an aggravating factor leading to a higher penalization of the crime. The primary victims of these hate crimes are the people who actually possess one those characteristics. Hate however often extends to people who do not have any connections with these characteristics, but who are perceived as belonging to a group having these characteristics. An example is Sikhs who are perceived as Muslims and as a consequence have been victim to islamophobia. A third group of potential victims of hate crimes are people who are associated or affiliated with others who actually or presumably possess (one of) these characteristics. This could for example be through family ties, friendship, membership to some organisations etc. In the case of Skorjanec v. Croatia, the European Court of Human Rights is confronted with this last category of hate crimes This case concerns in particular a possible racist hate crime by association.     Continue reading →

Talpis v. Italy: Elements to Show An Article 14 Violation in Domestic Violence Cases

Lourdes Peroni Domestic Violence, Prohibition of Discrimination, Prohibition of Inhuman Treatment, Right to Life, Talpis v. Italy

What are the elements necessary to support a finding of discrimination in domestic violence cases? In the recent case of Talpis v. Italy, two judges voted against an Article 14 violation. The dissenting opinions offer an opportunity to reflect on this and other broader questions that may be relevant for future cases. The questions flow from disagreement in the judgment over: whether the domestic authorities involved in the individual case were discriminatory towards the applicant as a woman and whether there were sufficient indications of failures to protect women in the Italian system.

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Osmanoğlu and Kocabaş v. Switzerland: A Swiss perspective

Guest Blogger European Court of Human Rights, Freedom of Religion, Osmanoğlu and Kocabaş v. Switzerland, Prohibition of Discrimination, Uncategorized

By Fabienne Bretscher, PhD Student at the University of Zurich, Visiting Researcher at the Erasmus School of Law Rotterdam

In a recent judgment, the ECtHR found that the refusal to grant Muslim students exemption from mandatory swimming classes in Swiss public schools did not amount to a violation of the right to freedom of religion guaranteed by Article 9 ECHR. In its decision, the ECtHR emphasised the important role of public schools in the process of social integration into local customs and way of life. After giving an overview of the facts of the case as well as the ECtHR’s judgment, the present post sheds some light on the background of the issue of Muslim students’ participation in mandatory swimming classes in Switzerland and argues that, with its decision, the ECtHR is (again) reinforcing and legitimising intolerance against Muslims. Continue reading →

European Court of Justice keeps the door to religious discrimination in the private workplace opened. The European Court of Human Rights could close it.

Saïla Ouald Chaib Business and human rights, Case C-157/15 (CJEU), Case C-188/15 (CJEU), European Court of Human Rights, Eweida and Others v. the United Kingdom, Freedom of Religion, Prohibition of Discrimination, Uncategorized

By Saïla Ouald-Chaib and Valeska David

On 14 March 2017, the European Court of Justice issued two judgments, in the cases of Achbita and Bougnaoui concerning the manifestation of beliefs in the private workplace. From the perspective of inclusion and human rights law, the judgments are very disappointing. They basically legitimize and even provide a recipe for discrimination of employees on the basis of their religious or other convictions. Continue reading →

Improving neighborhoods by preventing welfare recipients to take up residence: The Grand Chamber hearing in Garib v. the Netherlands

Valeska David Freedom to Choose One’s Residence, Garib v. the Netherlands., Prohibition of Discrimination

By Valeska David

On 25 January 2017, the Grand Chamber of the European Court of Human Rights (ECtHR) heard oral pleadings in Garib v. the Netherlands. The case concerns the refusal of a housing permit to a single mother living on social welfare on account of legislation imposing minimum income requirements on persons wishing to reside in a number of inner-city areas of Rotterdam. The Chamber judgment issued on 23 February 2016, which was discussed in a previous blogpost, held that there was no violation of Article 2 of Protocol No. 4 (right to choose one’s residence). As the case was referred to the Grand Chamber, the Human Rights Centre of Ghent University and the Equality Law Clinic of the Université Libre de Bruxelles submitted a joint third party intervention. In this post, I shall briefly recount the issues addressed in our intervention to subsequently provide an overview of the questions discussed during the hearing before the Grand Chamber.

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Crossing the Very Fine Line between Justice and Vengeance: Massive Purges in the Aftermath of the Attempted Coup in Turkey

Guest Blogger Prohibition of Discrimination, Right to a Fair Trial, Right to Private Life

Guest post by Duygu Çiçek – LL.M. in Human Rights from the University of Edinburgh (2015-2016)

Turkey’s recent attempted coup of the 15th of July exposed various discussions and conspiracy theories about the reasons behind the coup as well as future concerns regarding political dynamics at the domestic and international level. This contribution, however, will specifically focus on the massive purges occurring in the aftermath of the failed coup and the human rights implications of these violations within the ambit of the European Court of Human Rights’ jurisprudence, with a specific focus on the example of lustration.

Turkey’s current de-Gülenization movement has employed harsh measures, including torture and ill treatment of detainees, arbitrary detention of people in the absence of due process, as well as the screening, suspension, and dismissal of tens of thousands of teachers, public employees, judges, prosecutors, academics, and journalists accused of aligning themselves with the Gülen movement. The recent Decree-Law no. 672 enacted under the state of emergency does not only regulate the dismissal of public officials who are related to FETÖ (“Fethullah Gülen Terror Organization”, accused of creating a parallel state and organizing the coup attempt), but also bans them from working in the public field in the future, aiming to sweep out the influence of this movement from state institutions as well as the private sector. All these measures violate the European Convention on Human Rights (“the ECHR” or “the Convention”) and go beyond what can be justified even under the state of emergency invoked by the Turkish government.

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Taddeucci and McCall v. Italy: welcome novelty in the ECtHR’s case-law on equal treatment of same-sex couples

Guest Blogger LGBT Rights, Migration, Prohibition of Discrimination, Taddeucci and McCall v. Italy

This guest post was written by Dr. Nelleke Koffeman (*)

The Taddeucci and McCall v. Italy judgment of 30 June 2016 is a novelty in the ECtHR’s case-law on equal treatment of same-sex couples. It is the first time that the Court, in finding a violation of the prohibition of discrimination on grounds of sexual orientation (Article 14 ECHR in combination with Article 8 ECHR) in a case where stable same-sex partners do not enjoy the same rights as different-sex spouses, takes into account that those same-sex couples have no access to marriage under the relevant domestic law. It is not that the Court has never before been asked to acknowledge the (indirect) discrimination involved in such cases. Quite the opposite, but, as set out below, it has so far taken a formalistic approach in such cases. The present judgment is thus a clear – and to be welcomed – deviation from previous case-law.

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Grand Chamber Judgment in Izzettin Doğan and Others v. Turkey: More Than a Typical Religious Discrimination Case

Guest Blogger Freedom of Religion, Izzettin Doğan and Others v. Turkey, Prohibition of Discrimination

This guest post was written by Dr. Mine Yildirim (*)

On 26 April 2016, the Grand Chamber held, by 12 votes to 5, that there had been a violation of Article 9 ECHR, and, by 16 votes to 1, that there had been a violation of Article 14 taken in conjunction with Article 9 ECHR in the case of Izzettin Doğan and Others v. Turkey.

Relying on Article 9, taken alone and in conjunction with Article 14, the applicants complained that their right to manifest their religion had not been adequately protected in domestic law. It is important to note that their complaints are based both on their claims for public religious services and recognition of their cemevis (Alevi places of worship) as places of worship. They complained of the refusal of their requests seeking, among others, to obtain for the Alevi faith followers the same religious public service provided exclusively to the majority of citizens, who adhere to the Sunni branch of Islam. The applicants maintained that this refusal implied an assessment of their faith on the part of the national authorities, in breach of the State’s duty of neutrality and impartiality with regard to religious beliefs. They also contended that their request for the recognition of cemevis was refused. They further alleged that they had been the victims of discrimination on grounds of their religion, as they had received less favorable treatment than followers of the Sunni branch of Islam in a comparable situation, without any objective and reasonable justification.
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Biao v. Denmark: Grand Chamber ruling on ethnic discrimination might leave couples seeking family reunification worse off

Guest Blogger Biao v. Denmark, Migration, Prohibition of Discrimination, Right to Respect for Family Life

This guest post was written by Alix Schlüter, Ph.D. researcher at Bucerius Law School, Hamburg.

On May 24th 2016 the Grand Chamber found that the refusal to grant family reunion to a Ghanaian couple in Denmark violated Article 14 ECHR in conjunction with Article 8 ECHR. Overruling the Chamber’s judgment of 2014, the Court held by a majority of twelve votes to five that Danish Laws on Family Reunification in part constituted indirect discrimination on the basis of ethnic origin. In the past, the Court for the most part has confined itself to finding violations of the prohibition of discrimination on grounds of race or ethnic origin merely in certain tightly circumscribed case groups, namely cases concerning school segregation of Roma children and racist violence cases. Against that background, the ruling in Biao must be seen as a big step – all the more as critics have proclaimed that the Court might not yet have developed a satisfactory approach to cases of indirect discrimination.[1] The implementation of the judgment by the Danish government, however, has to be awaited with some uneasy suspense. It might result in leaving Danish nationals of non-Danish ethnic origin seeking family reunification worse off.

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Silence as Acquiescence: On the Need to Address Disability Stereotyping in Kocherov and Sergeyeva v. Russia

Corina Heri Disability, Kocherov and Sergeyeva v. Russia, Prohibition of Discrimination, Right to Respect for Family Life

By Corina Heri, PhD candidate at the University of Zürich / Visiting Scholar at Ghent University

In Kocherov and Sergeyeva v. Russia, a Chamber judgment issued on 29 March 2016, the ECtHR held that the restriction of a mentally disabled father’s parental authority had violated his rights under Article 8 ECHR (the right to respect for private and family life). In the past, the ECtHR has found violations of Article 8 ECHR where the domestic authorities failed to provide sufficient reasons for measures withdrawing parental care or contact rights from disabled parents (compare Olsson v. Sweden (No. 1), Kutzner v. Germany, and Saviny v. Ukraine). One of the most interesting aspects of the Kocherov and Sergeyeva case, however, concerns another provision, namely the prohibition of discrimination in Article 14 ECHR. The complaint made in this regard concerned the fact that Mr. Kocherov was considered an unfit parent based on stereotyped assumptions about parents with mental disabilities, contrary to the evidence about his actual ability to care for a child. The fact that the majority did not find it necessary to examine this complaint represents a missed opportunity to confront stereotyping head-on.

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Back on track! Court acknowledges gendered nature of domestic violence in M.G. v. Turkey

Guest Blogger Domestic Violence, M.G. v. Turkey, Prohibition of Discrimination, Prohibition of Inhuman Treatment

This guest post was written by Fleur van Leeuwen (*)

Around a month ago, the Court ruled in Civek v. Turkey that it was not necessary to examine the applicant’s complaint of discrimination in a domestic violence case that ended in death. This was disheartening, especially because in recent domestic violence judgments the Court has always addressed alleged violations of article 14. What was perhaps even more disturbing about the Civek judgement was that the Court – without any apparent reason – observed that men can also be victims of domestic violence, thereby implying that domestic violence is a gender neutral phenomenon. In doing so, it seconded the worrisome wording of the Istanbul Convention,[1] which – by denoting that men may also be victims of domestic violence and by referring to violence against women and domestic violence – explicitly positions the latter as a gender neutral form of violence.

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Disability discrimination because of denial of “reasonable accommodations”: a very positive connection between the ECHR and the UNCRPD in Çam v. Turkey

Guest Blogger Çam v. Turkey, Disability, Prohibition of Discrimination

This guest post was written by Joseph Damamme, PhD student at the Centre of European Law of the Université libre de Bruxelles (Belgium) and member of the Equality Law Clinic.

The Strasbourg Court recently delivered a significant judgment on the inclusion of students with disabilities in the field of (non-compulsory) education. Çam v. Turkey (ruling only in French for the time being) concerns a person who was refused enrolment at the Music Academy because of her blindness.

In this judgment, the ECtHR examines the issue of discrimination (art. 14 ECHR) under several dimensions. Indeed, in addition to the prohibition of discrimination, attention is focused on the importance of positive steps to ensure that students with disabilities are provided education on a non-discriminatory basis. In this vein, the ECtHR states that the denial of reasonable accommodations is a form of discrimination under article 14 ECHR. As far as we can ascertain, this is a statement that had never been expressed so clearly by the Strasbourg Court.

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ECtHR condemns the punishment of women living in poverty and the ‘rescuing’ of their children

Valeska David Prohibition of Discrimination, Right to Respect for Family Life, Soares de Melo v. Portugal

By Valeska David

The recently delivered ECtHR judgment in Soares de Melo v. Portugal (application No.72850/14) conveys a strong message on childrearing responsibilities and child protection: families living in poverty (mostly led by women) cannot be punished for their deprivation and their children should not be ‘rescued’ from them. Instead, and because children are not the exclusive responsibility of parents, states must fulfill their supportive role and provide material and other forms of assistance to make family life possible.

Following a summary of the facts and the findings of the Court, I will first briefly contextualize the importance of such a message within the Council of Europe (CoE). Subsequently, I will highlight some of the main contributions explicitly and implicitly made by the judgment. Finally, I will conclude by taking the opportunity to suggest that the way forward requires the Court to be more attentive to the discrimination and stereotypes often at play in these types of cases.

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Just another murder or gender-based violence? A commentary on Civek versus Turkey

Guest Blogger Prohibition of Discrimination, Stereotypes, Women's Rights

By Fleur van Leeuwen, LL.M. Ph.D., human rights researcher and lecturer.

On 14 January 2011 Selma Civek was murdered by her husband. It was the denouement of years of battering and abuse. Last week the European Court of Human Rights (the Court) ruled that Turkey had violated Civek’s right to life. It deemed it unnecessary to examine the alleged violation of article 14 of the Convention: the prohibition of discrimination. Although the Court found that Turkey had violated the Convention and ordered the state to pay compensation, the judgment is very disappointing. The Court did not question the role that Civek’s gender played in the case and therefore ignored the gendered reality of domestic violence and the particular response that is needed to tackle this widespread human rights problem. Instead, it dealt with the case in a gender-neutral fashion, treating Civek’s death as it would any other murder, focusing on the question whether the authorities knew or could have reasonably known that Civek’s life was in danger and – if so – acted with due diligence. What is even more disquieting is that the Court observed – without any apparent reason – that domestic violence not only affects women but also men and children and thus seemed to second – once more – to the worrisome ambiguity regarding the nature of domestic violence as a (non)-gendered human rights issue that also entered the text of the Convention on Preventing and Combating violence against women and domestic violence (the Istanbul Convention).

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European Court Buttresses Binational Same-Sex Couples’ Right to Family Reunification

Guest Blogger Pajić v. Croatia, Prohibition of Discrimination, Right to Private Life, Right to Respect for Family Life, Sexual Minorities

This guest post was written by Zsolt Bobis, Program Coordinator with the Open Society Justice Initiative’s Equality and Inclusion Cluster @ZsoltBobis

The European Court of Human Rights (ECHR) has ruled in Pajić v. Croatia that Croatia’s former legal regime that had categorically denied same-sex couples the possibility of obtaining family reunification had violated human rights standards. The court sided with the applicant, a national of Bosnia and Herzegovina, who alleged she had faced discrimination on the basis of her sexual orientation during her application for a residence permit in Croatia.

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Partei Die Friesen v. Germany: Federalism trumps uniform protection of national minority rights

Guest Blogger Partei Die Friesen v. Germany, Prohibition of Discrimination, Right to Free Elections

By Pieter Cannoot, academic assistant and doctoral researcher of constitutional law (Ghent University)

On 28 January 2016 the European Court of Human Rights declared the complaint by the regional Frisian political party “Die Friesen” against Germany unfounded. The party argued that the electoral system of the German Land of Lower Saxony (Niedersachsen) was discriminatory in conjunction with Article 3 of Protocol No. 1 to the ECHR, in so far as it applied a 5% threshold to the 2008 parliamentary elections.

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Oliari and Others v. Italy: a stepping stone towards full legal recognition of same-sex relationships in Europe

Guest Blogger LGBT Rights, Oliari and others v. Italy, Prohibition of Discrimination, Right to Respect for Family Life

This guest post was written by Giuseppe Zago, Researcher of Comparative Sexual Orientation Law, Leiden University (*)

Last 21 July, the European Court of Human Rights (ECtHR) in Oliari and others v. Italy had once again the opportunity to analyze the status of same-sex couples wishing to marry or enter into a legally recognized partnership. This resulted in a groundbreaking judgment, with the Court asserting that the absence of a legal framework recognizing homosexual relationships violates the right to respect for private and family life, as provided by the European Convention of Human Rights (ECHR) in article 8.

Its relevance is twofold, as the Court poignantly plunges into the current legal situation of Italy, and at the same time builds up on the outcomes of its previous cases, Shalk and Kopf v. Austria and Vallianatos and others v. Greece, to slightly, yet significantly, extend the interpretation of the ECHR principles concerning same-sex individuals who enter stable intimate relationships.

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Bias and Violence in Identoba and Karaahmed: The Difference Some Differences Make?

Lourdes Peroni Identoba and Others v. Georgia, Karaahmed v. Bulgaria, Prohibition of Discrimination, Prohibition of Inhuman Treatment

By Lourdes Peroni 

What role do discriminatory insults play when the Court considers a certain instance of ill treatment in the light of Article 3? The answer seems to depend on which case one looks at. The role is that of “an aggravating factor,” if one looks at the recent judgment in Identoba and Others v. Georgia.[1] However, if one looks at another relatively recent judgment in a case involving similar issues, Karaahmed v. Bulgaria, the answer seems “none.” Continue reading →

Karaahmed v. Bulgaria: The (In)Visible Racial and Religious Motivation of Violence

Lourdes Peroni Freedom of Religion, Karaahmed v. Bulgaria, Prohibition of Discrimination

By Lourdes Peroni

Karaahmed v. Bulgaria, a case recently decided at Strasbourg, concerned incidents arising from a demonstration by followers of “Ataka,” a political party known for its views against Islam and its adherents. The place of the demonstration: in front of the Banya Bashi Mosque in Sofia. The time: during Friday prayers. The manner: carrying flags featuring slogans such as “Let’s get Bulgaria back;” shouting insults at the worshippers such as “Turkish stooges”, “filthy terrorists,” “scum” and “Your feet stink! That is why you wash them!;” pelting them with eggs and stones; cutting a Turkish fez with a pocket knife while saying “Can you hear me? We shall now show you what will happen to each one of you!” and setting fire to prayer rugs.

The Court declared the Article 3 complaint, either alone or in conjunction with Article 14, inadmissible but found a violation of Article 9. In this post, I offer some preliminary thoughts on the inability of the Article 9 analysis to make visible what the events were really about at their heart.

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

Saïla Ouald Chaib Burqa ban, Freedom of Religion, Minority Rights, Procedural Justice, Prohibition of Discrimination, Right to Private Life, S.A.S. v. France, Stereotypes, Vulnerability, Women's Rights

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

Guest Blogger Freedom of association, Freedom of Religion, Magyar Keresztény Mennonita ... v. Hungary, Minority Rights, Prohibition of Discrimination

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 →

Biao: Danish family reunification policy does not violate the prohibition of discrimination

Guest Blogger Cases, Migration, Prohibition of Discrimination, Right to Respect for Family Life

This post was written by Nadia Ismaili, Ph.D. researcher at the migration law section of the Free University Amsterdam (*)

On 25 March 2014 the second chamber of the European Court of Human Rights handed down its judgment in the case of Biao v. Denmark. The case concerned the refusal to grant family reunion in Denmark to the Ghanaian wife of a naturalized Danish national originally from Togo. The Court decided unanimously that there had been no violation of the right to family life (Article 8). By the smallest majority of four votes to three, the Court held that there had been no violation of the prohibition of discrimination (Article 14) in conjunction with Article 8. This post focuses only on the divided reasoning on the prohibition of discrimination.

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Abdu v. Bulgaria – Yet another case of racist violence before the Court!

Guest Blogger Prohibition of Discrimination, Prohibition of Inhuman Treatment

This guest post was written by Mathias Möschel, post-doctoral researcher at Université Paris Ouest Nanterre La Défense. (*)

Abdu v. Bulgaria deals with a fact pattern which the Court has seen many times over the past fifteen years: racist violence. Moreover, it involves a country which has also stood a number of times before the European judges for human rights violations involving either police violence (see e.g. Velikova v. Bulgaria and Ognyanova and Choban v. Bulgaria) or private violence against racial minorities (see e.g. Dimitrova and Others v. Bulgaria, Seidova and Others v. Bulgaria, and Yotova v. Bulgaria). Continue reading →

Vulnerability and Economic Abuse in Domestic Violence Reasoning: T.M. and C.M. v. Moldova

Lourdes Peroni Prohibition of Discrimination, Prohibition of Inhuman Treatment, Vulnerability

T.M. and C.M. v. Moldova is one of the latest instances of domestic authorities’ passivity in protecting women against domestic violence. At the root of this passivity was a failure to understand the seriousness and extent of the problem and its discriminatory effect on women. This was reflected in misconceptions about both the nature of domestic violence and the reality of many of its victims. In dealing with this failure, the Court issues a strong judgment: (i) it reinvigorates the definition of domestic violence by renewing attention to non-physical forms, notably economic abuse and (ii) it refines the links between domestic violence victims’ vulnerability and the content of State positive obligations. Continue reading →

Nel nome del padre (in the name of the father): the Court on the transmission of the father’s surname (Cusan and Fazzo v. Italy)

Guest Blogger Cusan and Fazzo v. Italy, Prohibition of Discrimination, Stereotypes, Women's Rights

This guest post was written by Yaiza Janssens, PhD researcher and teaching/research assistant at the Human Rights Centre of Ghent University. Yaiza works on a project on the regulation of sexism in Belgian Law.

Cusan and Fazzo v. Italy concerned a challenge to transmission of the father’s surname to his children. The applicants in this case are an Italian married couple who – by mutual agreement – wanted to enter their daughter on the civil register under her mother’s family name, Cusan. The Italian authorities dismissed their request and the child was registered under her father’s name, Fazzo.

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Vallianatos and Others v. Greece: What is in there for Lithuania?

Guest Blogger Grand Chamber, LGBT Rights, Prohibition of Discrimination, Vallianatos and Others v. Greece

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 →

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

Saïla Ouald Chaib Amicus Brief, Burqa ban, Freedom of Religion, Grand Chamber, Margin of Appreciation, Minority Rights, Prohibition of Discrimination, S.A.S. v. France, Stereotypes, Vulnerability, Women's Rights

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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Seminar Announcement: Stereotyping as a Human Rights Issue

Alexandra Timmer Prohibition of Discrimination, Stereotypes, Uncategorized

The Human Rights Centre of Ghent University organizes a seminar on the topic of Stereotyping as a Human Rights Issue. The seminar will take place in Ghent on 4 December 2013.

The purpose of this seminar is to explore the topic of stereotyping from a wide human rights perspective. We will address questions like: How do invidious stereotypes affect the enjoyment of human rights? How came the language of stereotyping to be included in human rights treaties such as CEDAW and CRPD? Does human rights law manage to capture the harms of stereotyping? How could human rights law be improved in this respect? What potential has a focus on stereotypes to develop a more robust notion of equality in human rights law?

This is the program:  Continue reading →

HIV-based employment discrimination: the ECtHR takes a strong stance in I.B. v. Greece

Alexandra Timmer Disability, HIV, I.B. v. Greece, Prohibition of Discrimination, Stereotypes, Vulnerability

The Strasbourg Court has recently delivered its first judgment on the topic of HIV-based employment discrimination. I.B. v. Greece (judgment in French!) concerns a man who is HIV-positive and who was fired from his job, because his employer wished to keep the company running smoothly. What happened was that a group of I.B.’s co-workers, finding out about his HIV diagnosis, had called for his dismissal because they were afraid of contagion.

Although much of the legal reasoning in this judgment is familiar (notably from the landmark case of Kiyutin v. Russia), this ruling is notable for the strong message the Court sends about the harms of HIV-based stigma and discrimination. In this post I will highlight what are to my mind the most noteworthy aspects of this judgment, namely that the Court applies a social model of disability and that it uses the concept of vulnerable groups to narrow the margin of appreciation. The drawback of this judgment, I conclude, is that it does not give much support to HIV-positive people requiring some form of accomodation from their employer. Continue reading →

Equal treatment for remand and convicted prisoners: Gülay Çetin v. Turkey

Guest Blogger Gülay Çetin v. Turkey, Prohibition of Discrimination, Prohibition of Inhuman Treatment

This guest post was written by Cedric De Koker, academic assistant at the Institute for International Research on Criminal Policy (IRCP), Ghent University.

With its judgment in the case of Gülay Çetin v. Turkey, the European Court of Human Rights (ECtHR)  added another chapter to its significant body of detention-related case law. Having to pronounce on the issue of whether the continued detention of Mrs. Gülay Çetin, a retired auditor diagnosed with metastatic gastric cancer, infringed upon the European Convention on Human Rights, the ECtHR held unanimously that the Turkish government had violated article 3 (prohibition of inhuman or degrading treatment), taken alone and in conjunction with article 14 (prohibition of discrimination). Perhaps the most striking feature of the ruling relates to the fact that the ECtHR concluded that the applicant had been discriminated against while she was in pre-trial detention, as she had not been entitled to the same protective measures as convicted inmates with serious illnesses. As it was the first time that the Court explicitly mentioned discrimination between remand and convicted prisoners, the judgment could and most likely will have its repercussions for the administration of prisons.

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

Lourdes Peroni Asylum Seekers, Disability, Prohibition of Discrimination, Roma Rights, Vulnerability

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.

X. and Others v. Austria (Part II): A Narrow Ruling on a Narrow Issue

Stijn Smet Prohibition of Discrimination, X. and Others v. Austria

In this second post on the Grand Chamber judgment in X. and Others v. Austria, I will focus on the narrowness of it all: the narrowness of the issue before the Court, the narrowness of the ruling and the narrow approach the majority took to the European consensus. Although I believe the majority should be applauded for taking incremental steps towards extending equal rights to LGBT persons, the approach it takes to the European consensus leaves much to be desired. Indeed, X. and Others provides a perfect example of how the Court sometimes uses the consensus argument to provide a post hoc rationalisation and justification of an outcome it has already reached, rather than as a substantive argument that leads to that outcome.

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X. and Others v. Austria (Part I): Had the Woman Been a Man…

Guest Blogger Prohibition of Discrimination, X. and Others v. Austria

This guest post – the first in a two-post series on X. and Others v. Austria – was written by Grégor Puppinck*

On the 19th of February, the Grand Chamber of the European Court of Human Rights published its ruling in the case of X and others v. Austria (no. 19010/07), which decided by ten votes against seven, that the impossibility of second-parent adoption in a same-sex relationship is discriminatory when such adoption is possible for unmarried different-sex couples. The reasoning may be thus summarised: If the woman had been a man, the adoption would have been possible, so it must be possible while the woman is not a man in the name of non-discrimination according to sexual orientation.

The two unmarried women, who took action on their own behalf and on the behalf of the child who was a minor, claimed to have suffered discrimination based on their sexual orientation and invoked the right to respect for their private and family life (art. 8) as well as the prohibition of discrimination (art 14). “They submit that there is no reasonable and objective justification for allowing adoption of one partner’s child by the other partner if heterosexual couples are concerned, while prohibiting the adoption of one partner’s child by the other partner in the case of homosexual couples.” (Presentation of facts made by the registrar of the Court.)

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“Very Weighty Reasons” for Religion: Vojnity v. Hungary

Lourdes Peroni Freedom of Religion, Prohibition of Discrimination, Right to Respect for Family Life, Vojnity v. Hungary

It looks like freedom-of-religion season has arrived in Strasbourg. After leaving aside the “freedom to resign” doctrine in Eweida, the Court has just made another move towards greater recognition of the importance of freedom of religion. In Vojnity v. Hungary, the Court clearly recognizes religion as a “suspect” ground of differentiation. As a result – and just like distinctions based on race, sex and sexual orientation – states must give “very weighty reasons” if they wish to justify differences based on religion. In less than a month, the Court has thus put freedom of religion and non-discrimination on the basis of religion on firmer grounds in Strasbourg.

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