Silencing the Voices of People with Disabilities: Recent Developments before the European Court of Human Rights

This guest post was written by Constantin Cojocariu, human rights lawyer[1]

Recently, I got involved in a case pending before the European Court of Human Rights – N. v. Romania – on behalf of a man diagnosed with schizophrenia, who claimed that his detention for 14 years in high security psychiatric hospitals has been unlawful. I was surprised to notice that although he claimed breaches of Articles 5§1 and 6, the case had only been communicated under Article 8, and that the Court effectively requested the Romanian Government to place him under guardianship so that he may be represented in proceedings before it. Far from being exceptional, this case is part of a broader trend in disability cases, whereby the Court increasingly focuses on issues of process instead of offering substantive guidance, with the result that entrenched abuse and discrimination remain unchallenged. In this post, I examine critically several cases against Romania, mostly decided already, but also pending, including N. v. Romania, that in my view depart from well-established case law and which establish differential standards of scrutiny for persons with disabilities. Continue reading

Deprivation of liberty in armed conflicts: the Strasbourg Court’s attempt at reconciling human rights law and international humanitarian law in Hassan v. UK

This guest blog post was written by Frederic Bernard, Lecturer at the University of Geneva, Global Studies Institute, and Attorney-at-law admitted to the Geneva Bar.

The fragmentation of international law has been for some time the subject of in-depth academic and expert studies, as exemplified, for instance, by the report dedicated to this topic on 13 April 2006 by the Study Group of the International Law Commission. The relationship between international human rights law and international humanitarian law, in particular, has attracted much attention. In this context, the Hassan case is noteworthy, because, for the first time, the Strasbourg Court’s Grand Chamber had to address this relationship directly, in order to assess whether the applicant’s brother’s rights had been breached due to his detention in Iraq by British forces during the 2003 war:

This is the first case in which a respondent State has requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law.

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The European Court of Human Rights has spoken … again. Does Turkey listen?

This guest post was written by Dr Elena Katselli, Senior Lecturer in Law at Newcastle Law School

Thirteen years have elapsed since the European Court of Human Rights’ (ECtHR) judgment in Cyprus v Turkey in which the Court found Turkey responsible for 14 violations of the European Convention on Human Rights (ECHR) and its Protocols. The violations related to 1,485 Greek Cypriots who disappeared during the Turkish military invasion and occupation of Cyprus in 1974; the living conditions of enclaved Greek Cypriots living in the occupied area of Karpas since thereafter; and displacement.[1] Continue reading

Crossing the red line: application of the ‘significant disadvantage’ criterion in an Article 5§3 case

Recently, Judges De Gaetano and Ziemele did not hide their bewilderment with the Latvian government’s argument in favor of the application of the ‘significant disadvantage’ admissibility criterion in the case of Bannikov v. Latvia. Continue reading

The Right To Protest Contained By Strasbourg: An Analysis of Austin v. UK & The Constitutional Pluralist Issues it Throws Up

This post is written by David Mead who is a Senior Lecturer at the UEA Law School and author of The New Law of Peaceful Protest: Rights and Regulation in the Human Rights Act Era published by Hart in 2010. More information about David can be found here http://www.uea.ac.uk/law/Staff/All+People/Academic/dmead

The last few days have proved to be eventful for anyone interested in free speech and protest. First, Cambridge PhD student Owen Holland was rusticated for seven terms for reading out a poem that disrupted a speech being given by universities minister, David Willetts. Had this fallen to the magistrates, under say s.5 of the Public Order Act 1986, rather than to the university’s disciplinary “court”, it is hard to see how the sentence meted out would not have been significantly less. Continue reading

Stanev v. Bulgaria: The Grand Chamber’s Cautionary Approach to Expanding Protection of the Rights of Persons with Psycho-social Disabilities

This post is written by Lycette Nelson, Litigation Director, Mental Disability Advocacy Center*

The Grand Chamber’s recent judgment in Stanev v. Bulgaria has enormous significance for the rights of thousands of persons with psycho-social disabilities and intellectual disabilities throughout Europe. In finding violations of Articles 3, 5§1, 5§4, 5§5, 6§1, and 13, the Grand Chamber opened the possibility for persons in social care institutions to challenge both their deprivation of liberty and the inhuman and degrading conditions in institutions, and reaffirmed its jurisprudence regarding the right of persons whose legal capacity has been restricted to have access to a court to challenge their loss of rights.  However, the  Court’s narrowing of its holdings and failure to examine the applicant’s claim under Article 8 limit the scope of the judgment. The D.D. v. Lithuania judgment, coming immediately upon the heels of Stanev, brings the limitations of Stanev into focus. Read together, the two cases raise questions about the Court’s willingness to broaden its approach to protection of the rights of persons with psycho-social and intellectual disabilities and to go beyond acknowledging the Convention on the Rights of Persons with Disabilities (CRPD) as the international standard for the rights of persons with disabilities to engage substantively with the paradigm shift the CRPD embodies.

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Less stringent measures and migration detention: overruling Saadi v. UK?

The recent cases of Yoh-Ekale Mwanje v. Belgium and Popov v. France illustrate how a ‘less stringent measures test’ is entering the Court’s reasoning under Art. 5 § 1 ECHR in migration detention cases. The Court appears to be slowly moving away from its deferential approach in Saadi v. The United Kingdom. This might result in the overruling of Saadi by the Grand Chamber in the near future.

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