In what is possibly one of the most important judgments of 2016, Paposhvili v. Belgium, the Grand Chamber has memorably reshaped its Article 3 case law on the expulsion of seriously ill migrants. In a unanimous judgment, the Court leaves behind the restrictive application of the high Article 3 threshold set in N. v. the United Kingdom and pushes for a more rigorous assessment of the risk of ill-treatment in these cases. For us at the Human Rights Centre of Ghent University, it was a thrill to intervene as a third party in such an important case. In our third party intervention we submitted that Paposhvili offered a unique opportunity to depart from the excessively restrictive approach adopted in N. We are delighted that the Grand Chamber has seized the opportunity to re-draw the standards in this area of its case law in a way that does fuller justice to the spirit of Article 3.
By Corina Heri, PhD candidate at the University of Zürich / Visiting Scholar at Ghent University
On 27 October 2016, the Court published the Third Section’s decision in Kamenica and Others v. Serbia. That case concerns the alleged ill-treatment of 67 persons who fled Bosnia and Herzegovina during the conflict that broke out there in 1992 and who were subsequently interned in a Serbian detention camp. The Third Section applied the six-month rule to the case, finding that it had been brought out of time. Its decision raises questions about the strictness of the six-month rule and the application of a statute of limitations to grievous alleged violations of Article 3 ECHR. Granted, the application of a rigid time limit for bringing applications to Strasbourg fosters certainty and ensures that the proceedings before the Court take place within a useful time frame. However, decisions such as this one indicate that, in certain types of cases – here, a particularly grievous one that stood to be investigated in a post-conflict scenario – the Court’s emphasis of a strict time limit can seem decidedly formalistic.
This guest post was written by Nicole Bürli, PhD, Human Rights Advisor of the World Organisation against Torture.
On 26 April 2016, the Grand Chamber of the Court delivered its judgment in the case of Murray v. the Netherlands. Overturning the Chamber judgment, the Grand Chamber rightly found the irreducibility of a life sentence of a mentally disabled prisoner incompatible with Article 3 of the Convention. With this judgment, the Court clarified relevant principles for rehabilitation and review of life sentences developed in Vinter and Others v. the United Kingdom.
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, 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.
By Eva Brems
In a recent case, the Court found a violation of article 3 ECHR on account of the defective investigation into a serious incident of racist violence that occurred in Athens in 2009. In addition, the detention conditions imposed upon the victim (sic!) also violated article 3. The judgment explicitly recognizes the structural character of the problem of racist violence in Athens and expects the Greek authorities to do the same. However, when it comes to structural solutions, an obvious one is overlooked.
Few judgments have sparked more criticism than N. v. the United Kingdom. The high Article 3 threshold set in the case of a seriously ill woman expelled to Uganda where she died shortly after her return has been criticized both inside and outside the Court. Following what some considered a missed opportunity in S.J. v. Belgium last March, the Grand Chamber now has a renewed chance to revisit the N. approach in Paposhvili v. Belgium. In a third-party intervention in the case, the Human Rights Center at Ghent University invited the Grand Chamber to reconsider the unduly restrictive approach adopted in N. In this post, I highlight the main points we made in our intervention as well as some of the parties’ Article 3 oral arguments during last week’s hearing.
By Salvo Nicolosi
Last 7 July 2015, the Second Section of the Strasbourg Court ruled in V.M. and Others v. Belgium, concerning the violation of Articles 3 and 13 ECHR owing to the reception conditions of asylum seekers. The case must be placed within the settled case law on the protection of asylum seekers under Article 3 ECHR which the Court has developed over the years and thus it offers another occasion to reflect on the timely and controversial debate regarding the interpretation of the right to asylum through the lens of the Strasbourg Court (Bossuyt, 2010; Mole/Meredith, 2010).