Regulating Signals intelligence

Iain Cameron is professor in public international law at Uppsala University

Introduction

For European states, an important factor pushing towards better regulation of security agencies generally has been the ECHR. The work of “signals intelligence” agencies (collecting metadata and the content of electronic mail and voice communications) came to prominence following the allegations of “mass surveillance” made by former NSA-contractor Edward Snowden in 2013. Compared to law enforcement or internal security agencies, signals intelligence agencies tend to possess much more powerful computing facilities, and they thus have abilities to process and analyse vast amounts of data. Data, both content data (telephone conversations, email etc.) and metadata are collected in bulk and then analysed using selectors. The ECtHR has recently looked at the systems for regulation and control of signals intelligence operating in two states, Sweden and the UK, in the cases of Centrum för Rättvisa v. Sweden (CFR) and Big Brother Watch and others v. UK (BBW) (see blogposts for these cases here and here). Both these cases have been appealed to the Grand Chamber which held an oral hearing on 10 July 2019. A judgment is expected soon. The present blog article will look at four issues of principle at stake in the two cases, namely bulk collection, judicial authorization, notification and discrimination. In each of these issues, there is some tension between the regional (ECHR) and sub-regional (EU) human rights standards applicable to signals intelligence.

There were three basic questions in BBW: these concerned the UK rules on bulk collection, on metadata and on intelligence sharing. The majority of the Court found violations of Article 8 and Article 10 as regards the first two issues. In CFR the issue was more simply whether the Swedish signals intelligence law and practice as a whole satisfied Article 8 and the Court unanimously found that it did. Both cases involved many sub-issues, and were detailed examinations of the foreseeability, accessibility etc. of the laws, and their necessity in a democratic society (which mainly centered around the adequacy of the control systems). The Court applies eight criteria in making its assessment, developed from its case law on targeted interception, and the Weber and Saravia v. Germany case. It declined the offer to develop new or additional criteria, taking into account improvements in technology, and designed for bulk interception specifically (previously discussed by the Venice Commission). Continue reading

The ECHR and the right to have a criminal record and a drink-drive history erased

By Jurij Toplak

The ECHR’s Article 8 guarantees a right to have data related to criminal procedures reviewed and, after some time and in most cases, removed. In this blog post, I will first summarise the case law of the European Court of Human Rights (ECHR or “the Court”) on the retention, review, and removal of data stored during a criminal procedure and the data on convictions, generally known as “criminal records”. I will focus on two judgments, issued on 13 February 2020. They are Gaughran v. the United Kingdom and Trajkovski and Chipovski v. North Macedonia. Then I will present and analyse cases currently pending before the Court and issues on which the Court will decide shortly. Continue reading

Indiscriminate Covid-19 location tracking (Part II): Can pandemic-related derogations be an opportunity to circumvent Strasbourg’s scrutiny?

By Ilia Siatitsa and Ioannis Kouvakas

Yesterday, we argued that blanket mobile phone location tracking measures that aim at containing the spread of the Covid-19 pandemic cannot be regarded as strictly necessary due to their indiscriminate nature and the existence of less intrusive alternatives with potentially similar effectiveness. In this second blog post, we reflect on whether states could derogate from Article 8 in order to impose indiscriminate location tracking.

As of 24 April 2020, ten states, i.e. Albania, Armenia, Estonia, Georgia, Latvia, Moldova, North Macedonia, Romania, San Marino and Serbia have officially derogated from their obligations under the European Convention on Human Rights (ECHR) citing the public health emergency posed by the pandemic, while a domestic court has also attempted to do so on behalf of the United Kingdom! Six of these states Albania, Estonia, Georgia, Latvia, North Macedonia and Romania – have explicitly included Article 8 (or the respective constitutional right) in the list of Articles they have chosen to derogate from. Continue reading

Indiscriminate Covid-19 location tracking (Part I): Necessary in a democratic society?

By Ilia Siatitsa and Ioannis Kouvakas

In his recent interview on The Intercept, Edward Snowden questioned whether the measures implemented by authorities amid the pandemic are necessary to safeguard people, as well as, whether the pandemic is seen by governments as just another opportunity to make us acquiesce to mass surveillance. In a scramble to track, and thereby stem the flow of new cases of Covid-19, governments around the world are rushing to track the locations of their populace. One way to do this is to leverage the metadata, including location data, held by mobile service providers (telecommunications companies) in order to track the movements of a population, as seen in Italy, Germany and Austria, and with the European Commission.

This is the first of two blog posts that will examine whether indiscriminate location tracking could ever be justified under the Convention, in light of the global pandemic. Continue reading

Bulk retention of private-sector subscriber data for governmental purposes does not violate the Convention: Breyer v. Germany

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

On January 30, 2020, in the case of Breyer v. Germany, the European Court of Human Rights ruled by six votes to one that the – legally required – indiscriminate storage of subscriber information by telecommunication service providers does not violate Article 8 of the European Convention on Human Rights. Amongst other things, the Court found that the interference at hand was rather limited in nature, thereby conveniently invoking Court of Justice jurisprudence which suited its point of view this time. Contrary to what judge Ranzoni argued in his dissenting opinion, the Court in Strasbourg was however not wrong in reaching this conclusion. The dissenter’s criticism regarding the insufficiency of the safeguards circumscribing the measure, on the other hand, was not without reasons. Continue reading

Abdyusheva and Others v. Russia: a Sadly Missed Opportunity

By Valérie Junod and Olivier Simon

On November 26. 2019, the ECtHR issued a 6 to 1 judgment finding that Russia had not breached the right of the complainants when it denied them access to methadone and buprenorphine (these two medicines are hereafter abbreviated to M/B) for treating their duly diagnosed opioid dependence syndrome (ODS).

Out of the three applicants, only the complaint of Mrs. Abdyusheva was analyzed in full. Since the other two were no longer consuming opioids and were no longer in active treatment; the Court declared their complaint inadmissible, disregarding their risk to relapse in the future.[1] Continue reading

López Ribalda and Others v. Spain – covert surveillance in the workplace: attenuating the protection of privacy for employees

Fotis Bregiannis is a doctoral researcher in the field of European Labour Law at UCLouvain. He works at the social law department of the Centre for the Interdisciplinary Research in Law, Enterprise and Society (CRIDES) and is currently writing a doctoral dissertation on EU legal instruments imposing information-related obligations on MNEs (EWC Directive, 2014/95 Directive).

Argyro Chatzinikolaou is a doctoral researcher and a member of the Law & Technology research group and the Human Rights Centre at Ghent University. She is currently working on the research project “Minors and online sexual acts: a study of legal qualifications and regulatory approaches from a children’s rights perspective”.

In López Ribalda and Others v. Spain, a recent judgment delivered by the Grand Chamber, the European Court of Human Rights (hereinafter ECtHR or Court) held, by 14 votes to three, that Spanish supermarket employees who were covertly filmed by security cameras in their workplace, following suspicions of theft, had suffered no violation of Article 8 of the European Convention on Human Rights (hereinafter ECHR). The Grand Chamber ruled against the Chamber judgment of 9 January 2018 which had found a violation of the employees’ right to respect for private life accordingly. In fact, the Grand Chamber seems more eager to accept restrictions to the protection of workplace privacy, contrary to the more promising Grand Chamber judgment in Bărbulescu v. Romania (in which two years ago the Court had found a violation of Article 8 in the case of the monitoring of an employee’s electronic communications). Continue reading

Stuck in the middle with Papageorgiou: Missed or new opportunities?

Effie Fokas is a political scientist and a Senior Research Fellow at the Hellenic Foundation for European and Foreign Policy, Research Associate of the London School of Economics Hellenic Observatory, and member of the Henry Luce/Leadership 100 project on Orthodoxy and Human Rights (Orthodox Christian Studies Center, Fordham University). She was also Principal Investigator of the ERC-funded Grassrootsmobilise Research Programme, which was one of three interveners in the Papageorgiou case.

Introduction

On 31 October 2019, the European Court of Human Rights delivered its judgement on the case of Papageorgiou and Others v. Greece, thus adding to its rich case law to do with religious education. Papageorgiou concerns the claim of Greek parents and students that the Greek mandatory religious education and its exemption process violate their Art.2, Protocol 1 right to education in accordance with their own religious or philosophical convictions. The exemption right was limited only to students who are not Orthodox and who submit a formal ‘solemn declaration’ to this effect to their school. On this basis both families in the case also claim violation of their Article 8 right to respect for private life, their Article 9 right to freedom of religion, and the Article 14 prohibition of discrimination.

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Suspicionless Stop and Search Powers at the Border and Article 8: Beghal v United Kingdom

By John Ip, University of Auckland Faculty of Law

On 28 February 2019, the First Section Chamber of the European Court of Human Rights (ECtHR) delivered its decision in Beghal v United Kingdom, a de facto appeal from a 2015 UK Supreme Court decision concerning the question of whether Schedule 7 to the Terrorism Act 2000 was incompatible with various rights under the European Convention on Human Rights. The ECtHR concluded unanimously that the applicant’s right to respect for private and family life under Article 8 had been infringed. Continue reading

Another case of violating privacy and personal data protection: Catt v. the United Kingdom

This blogpost was written by Judith Vermeulen, PhD researcher in the Law and Technology Research Group at Ghent University.

Shortly after Big Brother Watch (see also the blogpost for this case), the European Court of Human Rights again had the opportunity to pronounce itself on the compatibility of Article 8 ECHR with the collection, retention and further use of personal data for public interest purposes by UK authorities. Catt, however, does not involve an assessment of the data processing regime as such. Rather, it evaluates the specific situation the applicant is in. While the question of adequacy of the legal and regulatory framework surrounding the impugned measures remains unanswered, the processing of the applicant’s data in particular is considered to not pass the necessity test. Noteworthy in any case is that the Court – in contrast to what the EU Court of Justice has decided in the past – reiterates that the indiscriminate collection of personal data is justifiable. With Brexit looming – and the CJEU accordingly soon losing its jurisdiction vis-à-vis Britain –, this development in the Strasbourg case-law is of particular importance. Finally, it is questionable whether Article 8 is in fact the best legal ground for assessing the facts of this case. The discussions these provoked at national may illustrate this point. Continue reading

S.V. v. Italy: on temporality and transgender persons

By Pieter Cannoot, PhD Researcher at the Human Rights Centre of Ghent University

On 11 October 2018, the European Court of Human Rights found a violation of Article 8 ECHR in a case involving a transsexual woman called S.V. The application concerned the Italian authorities’ refusal to authorise S.V. officially changing her first name on the grounds that no judicial ruling had confirmed the successful completion of sex reassignment therapy, even though she had been socially and physically transitioning for several years. According to the Court, this waiting period had resulted in feelings of vulnerability, humiliation and anxiety, which amounted to a disproportionate interference with S.V.’s right to respect for private life. Continue reading

Big brother may continue watching you

By Judith Vermeulen (PhD Candidate, Law & Technology Research Group, Ghent University)

On 13 September 2018, more than five years after Edward Snowden revealed the existence of electronic (mass) surveillance programmes run by the intelligence services of the United States of America and the United Kingdom, the European Court of Human Rights (‘ECtHR’) found two UK data collection regimes – one of which will not be discussed here[1] – to violate Article 8 of the ECHR.[2] A third one, being part of the information sharing arrangements between these so-called “Five Eyes” countries was, on the contrary, considered to involve a justified interference with the right to respect for private life

While the long-awaited Big Brother Watch and Others v. UK judgment, which joined three actions, signifies another victory for civil liberties and privacy advocating non-profit organisations and activists – no less than 16 being the applicants in this case – some serious matters of concern remain. Continue reading

“Bulk interception of communications in Sweden meets Convention standards”: the latest addition to mass surveillance case law by the European Court of Human Rights

By Plixavra Vogiatzoglou, Legal Researcher, KU Leuven Centre for IT and IP Law (CiTiP)

On 19th June 2018, the Third Section of the Court, in its judgment in the case Centrum för Rättvisa v. Sweden, ruled that the bulk interception of communications scheme of the Foreign Intelligence of Sweden meets the Convention standards. This ruling follows verbatim the line of argumentation from previous case law on secret mass surveillance, thus reaffirming once more a high threshold for the protection of the right to private and family life. Continue reading

Benedik v Slovenia: Police need a court order to access subscriber information associated with a dynamic IP address

By Argyro Chatzinikolaou, (Doctoral Researcher), Law & Technology research group, Ghent University

Recently, the Fourth Section of the Court held in its judgement in the case of Benedik v Slovenia that there had been a violation of Article 8 (right to respect for private and family life) with regard to the failure of the Slovenian police to obtain a court order before accessing subscriber information associated with a dynamic IP address[1]. More precisely, according to the Court, the legal provision used by the Slovenian police in order to access subscriber information associated with a dynamic IP address without first obtaining a court order had not met the Convention standard of being ‘in accordance with the law’.
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The Whereabouts Requirement: Does the ECtHR protect the right to respect for private and family life of French sport professionals?

This guest post was written by Cathérine Van de Graaf, a PhD student at Ghent University.

In a judgment on 18 January 2018, the fifth Chamber of the ECtHR found no violation of the right to private and family life in Fédération Nationale des Syndicats Sportifs (FNASS) and Others v France. The case concerned the requirement for a “target group” of sports professionals to notify their whereabouts every day of the year so unannounced anti-doping tests can take place. The Court ruled that public interest grounds justified the “particularly intrusive” interference with the applicants’ privacy.

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Egill Einarsson v Iceland: the Court deals with an offensive Instagram post

This guest post was written by Ingrida Milkaite, Ghent University*

On 7 November 2017 the European Court of Human Rights (the ECtHR, the Court) found a violation of Article 8 of the European Convention on Human Rights. The main issue at hand was the Court’s assessment of whether the right balance between the applicant’s right to privacy (Article 8) and Mr X’s right to freedom of expression (Article 10) was struck by national courts.
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Tamiz v. UK: Google’s blog-publishing service is not liable for offensive comments

This guest post was written by Ingrida Milkaite (Ghent University)*

On 12 October 2017 the European Court of Human Rights (the Court, the ECtHR) decided on the liability of Google Inc. as an information society service provider for offensive comments posted below a blog post about Mr Payam Tamiz. His application filed under article 8 of the European Convention on Human Rights (ECHR, the Convention) was declared inadmissible.

Background and facts Continue reading

Bărbulescu v Romania and workplace privacy: is the Grand Chamber’s judgment a reason to celebrate?

By Argyro Chatzinikolaou, (Doctoral Student), Law & Technology, Faculty of Law, Ghent University

The recent judgment of the Grand Chamber of the ECtHR in the case of Bărbulescu v Romania found that the monitoring of an employee’s email account resulted in the violation of his right to respect for private life and correspondence within the meaning of Article 8 of the ECHR. By overturning last year’s judgment of the Fourth Section, the ECtHR gave relief to many who dreaded that the latter judgment had waived privacy in the workplace. Whether we can afford to be complacent, though, depends upon the grounds on which the violation was reasoned. Continue reading

Publication of a picture of a 3-year-old, representing him as an orphan, violates article 8 ECHR

By Ingrida Milkaite, Ghent University

The case of Bogomolova v. Russia concerns the use of an unauthorised photograph of a minor’s face on the front page of a booklet promoting adoption and help for orphans. It proves that the publication of pictures of children without parental consent may have a significant social impact on the family and may violate article 8 of the European Convention of Human Rights (ECHR), protecting the right to private and family life. Continue reading

No journalism exception for massive exposure of personal taxation data

By Dirk Voorhoof, Ghent University, Human Rights Centre.

 After long proceedings at national level, after a preliminary ruling by the EU Court of Justice on 16 December 2008 (Case C-73/07), and after the European Court of Human Rights Chamber judgment of 21 July 2015, the Grand Chamber of the ECtHR on 27 June 2017 finally found no violation of the right to freedom of expression and information in Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland. In essence the case concerns the mass collection, processing and publication of personal taxation data which were publicly accessible in Finland. The combination of a narrow interpretation of (public interest) journalism with a wide margin of appreciation for the domestic authorities led to the finding of a non-violation of Article 10 ECHR. Continue reading

A.P., Garçon and Nicot v. France: the Court draws a line for trans rights

By Pieter Cannoot, PhD researcher of human rights law (Ghent University)

On 6 April 2017, the European Court of Human Rights significantly strengthened the human rights protection of trans persons, with its long-awaited judgment in the case A.P., Garçon and Nicot v. France. The Court ruled that the condition of compulsory sterilizing surgery or treatment for legal gender recognition violated Article 8 of the Convention. Nevertheless, the judgment also left some questions unanswered. Continue reading

Paradiso and Campanelli v. Italy: Lost in Recognition. Filiation of an Adopted Embryo born by Surrogate Woman in a Foreign Country

By Elena Ignovska, Assistant professor, University Ss. Cyril and Methodius, Faculty of Law, Skopje, Macedonia.

Assisted Reproductive Technologies (ART) undoubtedly triggered an earthquake in the concept of parenthood, resulting in a fragmentation of the possible parents: genetic/biological, gestational, factual and legal. Their initial objective was to enable infertile couples to parent genetically related progeny. Yet, they have recently been used in ways that are detached from that initial purpose, which may be problematic from the viewpoint of national family law. A typical example of that is the case of Paradiso and Campanelli v. Italy which demonstrated the opposite intention: using foreign assistance in reproduction for purposes of parenting a non-gestational and genetically unrelated child. The issue before the Court concerned a removal of the child from his intended parents as a result of a (non)recognition of a foreign birth certificate. Continue reading

Resuscitating Workplace Privacy? A Brief Account of the Grand Chamber Hearing in Bărbulescu v. Romania

Guest post by Gaurav Mukherjee[1] and James Wookey[2]

On 30 November 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) heard oral arguments in Bărbulescu v. Romania. The case was referred to the Grand Chamber on 6 June 2016, after a Chamber judgment delivered on 12 January 2016.  The applicant sent private communications on his workplace Yahoo Messenger account, which were monitored by his employer in accordance with company policy that no private communications were to be sent from workplace devices. The majority in the Chamber judgment held that this surveillance did not violate the applicant’s right to respect for private life under Article 8 ECHR, which immediately provoked critics to claim that privacy in the European workplace was officially dead.[3]

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On a positive note: B.A.C. v. Greece

By Ellen Desmet, assistant professor of migration law at Ghent University.

On 13 October 2016, the European Court of Human Rights unanimously found in B.A.C. v. Greece that the Greek state’s omission to decide on an asylum application during more than twelve years violated Article 8 as well as Article 13 in conjunction with Article 8. The Court also considered that there would be a violation of Article 3 in conjunction with Article 13, if the applicant would be returned to Turkey without an assessment ex nunc by the Greek authorities of his personal situation.

This is the first time that the Court finds that an asylum seeker’s prolonged precarious and uncertain situation, due to an unjustified lack of action by the government as regards his asylum request, constitutes a violation of the right to respect for private life as guaranteed by Article 8 ECHR.

The judgment (only in French) has been discussed by Markos Karavias on EJIL: Talk!, and was mentioned by Benoit Dhondt on this blog in a comparative perspective, namely as a promising decision standing in contrast to the striking out of Khan v. Germany by the Grand Chamber. This post provides a complementary analysis of the Court’s considerations under Article 8 ECHR.

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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 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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Ramadan v. Malta: When will the Strasbourg Court understand that nationality is a core human rights issue?

This guest post was written by Marie-Bénédicte Dembour, Professor of Law and Anthropology at Brighton Business School, University of Brighton. (*)

It does not seem an exaggeration to say that the recent judgment in Ramadan v. Malta suggests that citizenship revocation is not generally problematic under the European Convention on Human Rights. How else might one understand the statement according to which ‘an arbitrary revocation of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual’ (para 85)? Strictly speaking, the quoted words appear to indicate that a revocation of citizenship, even when arbitrary, could fail to violate the Convention. How is this possible? One should not have to argue that arbitrary revocations of citizenship are unfathomable in a human rights perspective. The phrasing adopted by the Fourth Section of the European Court of Human Rights is unfortunate, to say the least. So are its reasoning and verdict of non-violation. A change of perspective is needed. Nationality matters enormously – it matters so much that it has to be a core human rights issue, and it is high time the European Court of Human Rights should recognise this.

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Fürst-Pfeifer v Austria: “A one-sided, unbalanced and fundamentally unjust judgment”?

By Stijn Smet

In Fürst-Pfeifer v Austria, the majority of the Fourth Section of the ECtHR ruled that the applicant’s right to private life was outweighed by the freedom of expression of an online publication and offline newspaper. In one of the fiercest and most poignant dissenting opinions I have read to date, judges Wojtyczek and Kūris label the majority judgment as “a one-sided, unbalanced and … fundamentally unjust judgment” that “panders to prejudice” against persons, like the applicant, “with a history of mental-health problems”. In this post, I consider the majority judgment in Fürst-Pfeifer as symptomatic of a broader problem in the Court’s case law: one-sided balancing in the resolution of conflicts between human rights. I tackle this problem, along with others, in my forthcoming book Resolving Conflicts between Human Rights: The Judge’s Dilemma (Routledge, 2016).

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A, B and C v. Latvia: gender-blindness and trivialisation of indecent acts against adolescent girls

By Yaiza Janssens

Not many ECtHR cases that focus on a possible obligation under Article 8 of the Convention to conduct a criminal investigation and even fewer cases where the facts fall exclusively concern minors. In A, B and C v. Latvia, a Chamber judgment issued on 31 March 2016, the applicants complained that the authorities had failed to investigate their complaints of sexual abuse by their sports coach. The Court found no violation of Article 8. In this post, I will argue that the Court should have concluded that the criminal investigation of the Latvian authorities was not effective.

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

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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Insulting a politician right after her death: Does the ECHR protect the reputation of the deceased?

By Valeska David

At the end of 2014, when deciding on the admissibility of a case brought by Stalin’s grandson, who sued a newspaper and the author of an article for defamation of his grandfather, the ECtHR stated that the heir of a deceased person could not claim a violation of the latter’s article 8’s rights since they are non-transferable.[1] Less than two years later, however, the recent judgment in Genner v. Austria (Application no. 55495/08) seems to cast a shadow of doubt on that principle. Furthermore, this judgment brings about interesting questions on what can and cannot be said about a public figure who has just passed away. Before turning to these questions, let’s first examine the facts of the case.

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Mandet v. France: Child’s “duty” to know its origins prevails over its wish to remain in the dark

By Evelyn Merckx, academic assistant and doctoral researcher at the Human Rights Centre (Ghent University)

The European Court of Human Rights has delivered many judgments about a child’s right to know its origins and whether this right can prevail over the refusal of the anonymous biological parent. In Mandet v. France, the opposite scenario took place. A presumed biological father wanted to have his paternity recognised vis-à-vis a child who already had a legal and social father and asked the judges not to change his established family ties. However, the domestic courts decided that it was in the son’s best interests that he knew the truth about his origins.

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Case of Roman Zakharov v. Russia: The Strasbourg follow up to the Luxembourg Court’s Schrems judgment

By Paul De Hert and Pedro Cristobal Bocos (Vrije Universiteit Brussels)

The judgment of the Grand Chamber of the European Court of Human Rights in Roman Zakharov v. Russia last December 4, 2015 is part of the growing concern that some international human rights protection bodies have developed in the area of digital rights. This has been reflected at the European level with the judgment of the Court of Justice of the European Union that cancels the Safe Harbor decision – Maximillian Schrems v. Data Protection Commissioner – and the European Parliament resolution of 29 October on the mass surveillance of European citizens that recognizes, among other things, the important role played by Edward Snowden. The case comes also amid the growing concern of the United Nations (UN) on the matter that has resulted in resolution 68/167 of the General Assembly, in the reports and remarks of the High Commissioner for Human Rights (OHCHR), for example in September 2013 and in February 2014, and in the creation in July 2015 of a special rapporteur on the right to privacy.

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Grand Chamber challenges male-oriented view on keeping silence over mistress and lovechild in pivotal privacy case

By Dirk Voorhoof *

gsdfgdfgThe Grand Chamber’s judgment delivered on 10 November 2015 in Couderc and Hachette Filipacchi Associés v. France elaborates on the appropriate standard for privacy and the media under European human rights law. In essence, the Court discussed the public-interest value of a disputed article published in the magazine Paris Match, revealing aspects of the private life of a public person exercising an important political function. This blog, written on 11 November, Women’s Day in Belgium, focusses in particular on women’s right to tell the story of a relationship as a matter of personal identity.

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The Y.Y. v. Turkey case and trans individuals’ gender recognition

This guest post was written by Ivana Isailovic, post-doc researcher at the Perelman Center (Université libre de Bruxelles) and affiliated to the IAP, Human Rights Integration project.[1]

The Y.Y v. Turkey decision deals with the process of gender recognition, which is one of the many pressing legal issues trans[2] communities are struggling with in Europe. In its previous decision, the European Court of Human Rights has found that the State’s failure to modify the birth certificate of a person by recognizing the preferred gender constitutes a violation of the right to private life guaranteed by art. 8. For the first time, in Y.Y. v. Turkey, the Court examines the domestic requirements ­– in this case the sterilization requirement – which are necessary to obtain the legal recognition of the preferred gender.

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Dubská and Krejzová v. Czech Republic: a ‘negative’ or ‘positive’ right to give birth at home?

By Laurens Lavrysen

In the case of Dubská and Krejzová v. Czech Republic, the Strasbourg Court had to pronounce itself on the regulation of home birth under Czech law. While on the one hand Czech law allowed for home births, on the other hand it prohibited midwives from assisting them. In its judgment of 11 December, the Court found no violation of the right to respect for private life (Article 8), mainly based on the increased risks to the lives and health of newborn and mother vis-à-vis a hospital birth in case of complications. The Court thereby endorsed the paradoxical Czech legal framework under which relatively safe home births with the assistance of a midwife are prohibited on health grounds, whereas unsafe home births without such assistance are allowed. It is argued that by constructing the case as one involving a narrow conception of ‘interference’, the Court failed to look at the broader picture of what it means to effectively secure a human right. Such a more holistic understanding requires an appreciation of both ‘negative’ and ‘positive’ aspects of Article 8 at stake in the present case.

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Ivinović v. Croatia: legal capacity and the (missing) call for supportive decision-making

Valeska David is a PhD Researcher at the Human Rights Centre of Ghent University and a member of the Research Network “The Global Challenge of Human Rights Integration: Towards a Users’ Perspective.”

We have all heard about the so-called paradigm shift brought about by the UN Convention on the Rights of Persons with Disabilities (CRPD). The social model of disability and the duty of reasonable accommodation are some of the “conceptual innovations” reshaping human rights law. However, we know much less about what that means in practice. One field in which this question has utmost importance is that of legal capacity of persons with disabilities, particularly of those with intellectual, psychosocial and sensory impairments. The recent judgment of the European Court of Human Rights in Ivinović v. Croatia, like other cases decided against the same state, deals with that issue: the legal capacity of persons with disability. The decision is part of a growing corpus of disability case law and is welcome for a number of reasons – which I briefly sketch here. Yet, in this post, I suggest looking at this judgment as somewhat of a missed opportunity. Continue reading

Occupational Health in the Jurisprudence of the European Court of Human Rights: Brincat v. Malta

This guest blog post was written by Elena Sychenko, Ph.D. student at the University of Catania, Law Faculty, Labour Law Department.

On 24 July, the European Court of Human Rights announced its judgment in Brincat and Others v. Malta (the Brincat case).[1] This case was the result of 21 applications of former workers of the public ship repair yard exposed to asbestos. The Government of Malta was held responsible for breaching its positive obligations to protect the rights to life and the right to respect for private life. A violation of the right to life was found where the death of the employee was the result of exposure to asbestos. Where employees had suffered from different diseases, the Court found a violation of the right to respect for private and family life.

Brincat is a landmark case for Occupational Health in all the countries of the Council of Europe. For the first time, the Court found violations of two rights deduced from articles 2 and 8 that are fundamental to this sphere: the right to access information concerning risks the employee is exposed to and the right to protection from dangerous industrial activities. Continue reading

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

By Saïla Ouald Chaib and Lourdes Peroni

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

McDonald v. the United Kingdom: A step forward in addressing the needs of persons with disabilities through Article 8 ECHR

This guest post was written by Marijke De Pauw, Ph.D. Researcher at the Fundamental Rights and Constitutionalism Research Group (FRC) of Vrije Universiteit Brussel. Her research is part of the research network “The Global Challenge of Human Rights Integration: Towards a Users’ Perspective” (HRI) and concerns the fundamental rights of older persons.

In McDonald v. the United Kingdom, the European Court of Human Rights dealt with a case concerning the reduction in night-time care for an elderly lady. The applicant complained that a reduction in night-time care disproportionately interfered with her right to respect for her private life under Article 8 ECHR. Continue reading

The application of the European Convention on Human Rights to the case of Leonarda Dibrani

This guest post was written by Georgios Milios*

On October 9 2013, Leonarda Dibrani, a 15-years old Roma girl, was arrested by the French police in front of her teachers and classmates and deported to Kosovo along with her parents and five siblings. Initially, it was argued that the family had left Kosovo some years ago seeking better opportunities but according to Leonarda’s father, the Kosovo story was a lie and the whole family had been living for many years in Italy where almost all of the children were born but had not managed to acquire the Italian nationality. Furthermore, the father argued that they moved to France in 2008 and sought asylum claiming that they all come from Kosovo. The ‘Kosovo lie’ did not work and the whole family was expelled on the grounds that they were residing illegally in France. Continue reading

Gross v Switzerland: the Swiss regulation of assisted suicide infringes Article 8 ECHR

This guest post was written by Daria Sartori, Ph.D candidate in Criminal Law at Trento University (Italy). She is interested in the relationship between Criminal Law and Human Rights, and she is presently working in Italy and abroad on a research project about the Principle of Legality and the European Convention on Human Rights.

Gross v Switzerland is the first judgment in which a member State’s position on assisted suicide is held to be incompatible with Article 8 ECHR by the European Court of Human Rights.
The Court undoubtedly reached an original and interesting conclusion, albeit by a strict majority of four votes to three. However, the relevance of this judgment is more apparent than real: Gross v Switzerland opens the door to the concrete use of Article 8 ECHR in cases relating to assisted suicide, without implying the acknowledgment of a “right to die” under the European Convention.
Leaving aside any criticism of the European Court’s attitude toward this delicate (and much debated) topic, in this post I wish to highlight a relevant mistake affecting the Court’s reasoning. Continue reading

ECtHR Really Applies Less Restrictive Alternative: Saint-Paul Luxembourg S.A. v. Luxembourg

The structured proportionality test, as utilised by the German Constitutional Court (among others) and championed by Robert Alexy and his followers, subjects limitations of fundamental rights to a three-pronged test. The test is intended to examine – step by step – a measure’s (i) suitability, (ii) necessity and (iii) proportionality stricto sensu. Correct application of the test demands, according to Alexy and his followers, the examination of each of these three elements in order. As soon as a measure fails one of the steps, it is unconstitutional and there is thus no need to examine the next step(s).

Scholars who advocate this structured version of the proportionality test often lament its poor or wrongful application by courts, including the European Court of Human Rights. The ECtHR has, by and large, indeed not developed nor applied such a strictly ordered version of the proportionality test. It is particularly rare for the Court to apply the necessity test as separate from the proportionality stricto sensu test (also known as balancing). Instead, the Court has generally looked at the existence of less intrusive measures as an element to consider in the balance or it has continued to examine a measure’s proportionality in the strict sense after having indicated that less restrictive measures were available.

Not so in the recent case of Saint-Paul Luxembourg S.A. v. Luxembourg. In its judgment in that case, the ECtHR has – to my knowledge in a very exceptional move – applied the less restrictive alternative test as Alexy intended it to function, much to the satisfaction of the proponents of a structured proportionality test, I imagine.

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P and S v. Poland: adolescence, vulnerability, and reproductive autonomy

The Strasbourg Observers are delighted to publish this guest post by Johanna Westeson, Regional Director for Europe, Center for Reproductive Rights. The Center for Reproductive Rights represented the applicants in P and S v. Poland before the ECtHR; see the Center’s press release here.

This week, the European Court of Human Rights issued its decision in P and S v. Poland, a case of a Polish teenager who became pregnant as a result of rape and was humiliated, harassed, and manipulated in her quest for a legal abortion. Building on the landmark cases against Poland’s restrictive abortion practice, Tysiąc v. Poland (2007) and R.R. v. Poland (2011) (see blog posts here and here), this judgment further clarifies the Court’s stance that reproductive health services that are legal must also be accessible. It also develops important reasoning on the vulnerability of young rape victims as well as their right to personal autonomy in matters of reproductive choice. The Court establishes that P and S had been subjected to several violations of their rights under Article 8, Article 5, and Article 3. This is a groundbreaking case, particularly in regard to the sexual and reproductive rights of adolescents. It opens the door to legal challenges to regimes that restrict young people’s reproductive self-determination, such as parental consent laws and strict procedural requirements to prove rape as a requirement for access to legal abortion. Continue reading

Bio-ethics under Human Rights Scrutiny: Toward a Right to Pre-implantation Genetic Testing under the ECHR?

This guest post was written by Adriana Di Stefano. Adriana is a tenured researcher and lecturer in international law at the Faculty of Law of the University of Catania. Her areas of expertise include international humanitarian law, human rights law and EU Law.

On August 28th, 2012 the Second Section of the European Court of Human Rights delivered the long-awaited judgment in the case of Costa and Pavan v. Italy (application no. 54270/10, lodged with the European Court on 20 September 2010). The questions raised in Strasbourg originated from the application of an Italian couple – Mrs Rosetta Costa and Mr Walter Pavan – who, being healthy carriers of cystic fibrosis, desired to resort to medically-assisted procreation and genetic screening in order to avoid the risk of transmitting the disease to their descendants. Relying on Articles 8 and 14 of the European Convention on Human Rights, they complained that the Italian Law (no. 40 of 19 February 2004, “Norme in materia di procreazione medicalmente assistita”), banning couples of healthy carriers of genetic disease from in vitro fertilisation and embryos pre-implantation screening, violated their right to respect for private and family life and the prohibition of discrimination as enshrined in the Convention.

The assigned Section, chaired by Judge Tulkens, held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights, dismissing, as manifestly ill-founded, the claim under Art. 14. In brief, the international judges emphasized the inconsistency in Italian law denying the couple access to embryo screening, while authorizing medically-assisted termination of pregnancy if the foetus had showed symptoms of the genetic disease. The Court concluded that the interference with the applicants’ right to respect for their private and family life, even if “prescribed by law” and in pursuit of a “legitimate aim” under Article 8 § 2, was disproportionate and thus exceeded the “necessary in a democratic society” test.

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‘Not a violation, because it works’ – A dangerous line of reasoning in Colon v. the Netherlands (adm.)

Can efficiency for the realization of a public good justify a rights-restrictive measure? Of course not. Human rights protect not only from governments or individuals with bad intentions, they also foreclose certain courses of action for the well-intended.  That torture works to elicit confessions, is an argument often made by  those who practice it, yet which the human rights community has rightly set aside as irrelevant . That the death penalty works against recidivism is clear yet also irrelevant. This is not because the goals –respectively making suspects confess to any crimes they may have committed  and preventing recidivism – are not considered very important, but because these goals can and therefore must be pursued through other means.

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Fernández Martínez v. Spain : Towards a ‘Ministerial Exception’ for Europe?

In its recent judgment in Fernández Martínez v. Spain, the European Court of Human Rights appears to have abandoned its tried and tested formula of ad hoc balancing between the collective dimension of freedom of religion and individual human rights, established in Obst v. Germany, Schüth v. Germany and Siebenhaar v. Germany. In Fernández Martínez,the Court accepted the Spanish courts’ categorical balancing to the benefit of church autonomy instead, thereby echoing the opinion of the United States Supreme Court on the ‘ministerial exception’ in Hosanna-Tabor.

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Criminal conviction of professor for refusal to give access to research files did not affect his Convention rights: Gillberg v. Sweden

This post on freedom of expression, academic research, privacy protection and access to official documents is written by Dirk Voorhoof* and Rónán Ó Fathaigh**

The Grand Chamber of the European Court has, more firmly than its Chamber judgment of 2010, confirmed that a Swedish professor could not rely on his right of privacy under Article 8, nor on his (negative) right to freedom of expression and information under Article 10 of the Convention to justify his refusal to give access to research material at Gothenburg University (see comment on Chamber judgment here). The Court unanimously concluded that the criminal conviction of the professor for not giving access to the requested documents did not affect his rights under Article 8 and 10 of the Convention. Most importantly, the Grand Chamber also referred under Article 10 of the Convention to the right “to receive information in the form of access to the public documents” (§ 93 and 94).

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Remembering the private and family lives of mentally disabled persons

In the case of Stanev v. Bulgaria the Grand Chamber gives hope for future developments in the Court’s approach towards the protection of private and family lives of mentally disabled people (Lycette Nelson from the Mental Disability Advocacy Center has also blogged about this case, read it here). Even though the majority did not find it necessary to examine Mr. Stanev’s complaint under Article 8, the dissenting opinions of four judges show that there are voices within the Court that consider that the institutionalization of mentally disabled persons has more aspects the Convention should protect. Continue reading

Stereotypes of Roma: Aksu v. Turkey in the Grand Chamber

 The Grand Chamber has handed down its much-awaited judgment in Aksu v. Turkey. This case concerns the use of derogatory stereotypical images of Roma in government-sponsored publications. The Grand Chamber holds with 16 votes to 1 that article 8 (right to private life) has not been violated. I have mixed feelings about the Court’s reasoning. When it comes to stereotypes, the judgment contains progressive and insightful reasoning. On the other hand, I regret that the Court did not take the substance of the applicant’s complaint – namely that he was discriminated as a Roma – seriously. In what follows I will chart the Court’s judgment and highlight both some strengths and some weaknesses. Continue reading