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

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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Clothes on Trial: M.G.C. and the Need to Combat Rape Stereotypes

Those who think stereotypical beliefs about rape are a thing of the past will probably be surprised to read the domestic reasoning in cases that have recently reached Strasbourg. Allusions to women’s “immoral” behavior in I.P. v. the Republic of Moldova and insinuations that women should have resisted “by scratching or biting” in Y. v. Slovenia show that these beliefs continue to pervade domestic justice (see here and here). M.G.C. v. Romania is the latest example of the tenacity of harmful stereotypes in domestic assessments of rape complaints. The domestic courts found that the applicant – eleven years old at the time – had “provoked” the alleged perpetrators to have sex with her largely because she was “scantily dressed.”

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

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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I.P. v. the Republic of Moldova: missed opportunity to tackle rape myths

By Yaiza Janssens

In the recent case of I.P. v. the Republic of Moldova, the European Court of Human Rights examined state responsibility to establish an effective legal and judicial framework with regard to rape under Articles 3 and 8 of the Convention. In this post, I show that the Court failed to acknowledge that fundamental values and essential aspects of private life are at stake in a rape case and to tackle domestic authorities’ reliance on rape myths.

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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

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)

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

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

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

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

The Court on Racial Discrimination (Part I): M. and Others v. Italy and Bulgaria

It’s fair to say that the Court’s record on racial discrimination is hesitant. Only as late as 2004 did the Court for the first time find that a State was guilty of racial discrimination.[1] This was in the Chamber judgment of Nachova v Bulgaria, which was later partly rescinded by the Grand Chamber in 2005. Since then, the Court’s jurisprudence on the topic of racial discrimination has rapidly expanded. The Court has delivered some strong judgments in the past years, most notably D.H. and Others v. the Czech Republic(2007). Yet the Court remains reluctant to find a violation of Article 14 of the Convention on the basis of race discrimination.

In the past few months, the Court has delivered several judgments on the topic. These cases illustrate the difficulties of the Strasbourg jurisprudence on race discrimination, but they also contain some promising new points of departurein the Court’s legal reasoning. First was B.S. v. Spain (24 July), concerning a sex worker of Nigerian origin who was harassed by the Spanish police. Then came M. and Others v. Italy and Bulgaria (31 July), about a Bulgarian Roma girl who alleged that she was trafficked to Italy and abused there by several men who held her hostage in a villa. Most recent is the case of Fedorchenko and Lozenko v. Ukraine (20 September), concerning a Roma man who complained that a police officer had set fire to his house. Five of the applicant’s family members died because of that fire.

In a two-post miniseries, Lourdes Peroni and I will discuss these three cases, which have to our knowledge not been picked up by other blogs. In the process we will revisit some of the major factors that continue to hamper the Court’s case law in the field of racial discrimination. In this post – the first half of the series – I will discuss M. and Others v. Italy and Bulgaria, which raises the question what racial discrimination is (or what counts as discrimination) in the eyes of the Court. Next week, Lourdes will discuss the Court’s standard of proof in cases that concern the investigation of racist violence. Continue reading

Gender equality and religious freedom in politics; Dutch SGP case declared inadmissible

The ECtHR has brought a turbulent Dutch legal saga to a close. In the highly interesting Staatkundig Gereformeerde Partij v. the Netherlands, the Court has declared the complaint by the Dutch political party ‘SGP’ inadmissible. The SGP is, in the words of the Court, “a confessional political party firmly rooted in historical Dutch Reformed Protestantism” (par. 4). The party does not allow women to stand for election, as it believes that God teaches that men and women have different roles in life. It believes that “man is the head of the woman” and “participation of women in both representative and administrative political organs” is “incompatible with woman’s calling” (par. 9). After a prolonged debate and legal struggle in the domestic courts, the Dutch Supreme Court ruled that, on the ground of Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’), the State is obliged to ensure that political parties allow women to exercise their right to stand for election. The SGP complained to the Strasbourg Court that this ruling of the Supreme Court infringed Articles 9 (right to freedom of religion), Article 10 (right to freedom of expression) and Article 11 (right to assembly) of the ECHR.

Frankly, what I expected to find was a terse decision, basically referring to the State’s margin of appreciation. I was wrong. The reasoning is brief, but includes three steps that combine to make this a memorable ruling. I will discuss these steps below. By the way, this case has provoked a lot of controversy in the Netherlands over the past years (most of it is in Dutch, but see this article in the Human Rights Quarterly). With this post, I cannot do justice to the whole debate; I just aim to give you my first impressions of the decision. Continue reading

Gender Justice in Strasbourg

Today, in the judgment of Konstantin Markin v. Russia, the Grand Chamber has re-defined its jurisprudence on sex discrimination. Regular readers of this blog will know that the “Strasbourg Observers” have taken a close interest in this case (see earlier posts here and here).  The Human Rights Centre of Ghent University – of which we are a part – actually actively participated in arguing the case: we had submitted a third party intervention to the Court. Our brief is available here.

So I am thrilled to be able to report good news on this judgment. The issue in the case is whether military servicemen can be refused parental leave when such leave is available to servicewomen. With a vote of 16 to 1, the Court has held that such a difference in treatment on the ground of sex violates article 14 (the anti-discrimination provision) in conjunction with article 8 (right to private and family life). The judgment includes a thorough gender discrimination-analysis; I will do my best to highlight the most interesting parts. 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

Anti-Gay Hate Speech: Vejdeland and Others v. Sweden

The Court has handed down a fascinating judgment on the freedom of expression. Vejdeland and others v. Sweden is the first time that the Court applies the principles relating to hate speech in the context of sexual orientation. A unanimous Court has ruled that Sweden did not violate the right to freedom of expression: the criminal conviction of the applicants for distributing leaflets that contained offensive statements about homosexuals did not breach the Convention. The judgment – which I will discuss below – is well worth reading, and so is the factsheet on hate speech that the Court has released on the occasion of this ruling. Continue reading

Toward an Anti-Stereotyping Approach for the ECtHR

As part of our joint research project I have written an article on gender stereotyping and the ways this could be addressed by the European Court of Human Rights in its case law.

Now I’m not sure whether flagging my own research is correct blog-etiquette, but I will take this opportunity to let you know that my article has just been published by the Human Rights Law Review and share the link with you. The full reference is Alexandra Timmer, ‘Toward an Anti-Stereotyping Approach for the European Court of Human Rights’, 11 Human Rights Law Review (2011), p. 707-738.

Here is a direct link to my article.

Comments are most welcome, either here on the blog or via email!

Here is the abstract:

The central tenet of this article is that stereotypes are both cause and manifestation of the structural disadvantage and discrimination of certain groups of people. Focusing on the gender case law of the European Court of Human Rights, this article explores what conception of equality the Court should embrace to adequately address the harmfulness of stereotypes. Since stereotypes are often the mechanisms that underlie discrimination, this article advances an anti-stereotyping approach that the Court could employ in its rulings. The proposed analysis consists of two phases: ‘naming’ and ‘contesting’ stereotypes. The whole argument is illustrated by Konstantin Markin v Russia and Rantsev v Cyprus and Russia, two recent cases in the area of gender equality.

Blood Donations and the Permanent Exclusion of “Men Who Have Sex with Men”

In Belgium, as in many other European countries, homosexual men are not allowed to donate blood. To be more precise, not homosexual men are permanently excluded from donating blood, but “men who have sex with men”. “What’s in a name?”, you might ask. That is what I intend to find out in this post.

Reasonable arguments are invoked on each side of the blood donation debate: a concern for public health on one side and a struggle against stereotyping and discrimination on the other. But who is in the right here? Who has the law, and more particularly European human rights law, on its side? In this post I will attempt to offer a possible answer to these questions through the lens of the case-law of the European Court of Human Rights. Obviously, the Court not having ruled on this issue, what follows is based on my interpretation of the Court’s discrimination case-law, combined with ideas on how a homosexual applicant may argue a hypothetical case in front of it.

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Live from Strasbourg: the hearing of Konstantin Markin v. Russia

Together with Lourdes and Stijn, I’ve just attended the Grand Chamber hearing in the case of Konstantin Markin v. Russia. We’ve blogged about this case here and here. Just to refresh your memory: the case concerns a military serviceman, Konstantin Markin, who was divorced from his wife and who had custody of their three young children. He applied for three years parental leave, but his request was denied because only female military personnel are allowed parental leave of such duration. The issue in Strasbourg is whether this difference in treatment is allowed because sufficient justifications exist for it, or whether it violates article 14 of the Convention in conjunction with article 8 (the non-discrimination provision in combination with the right to private/family life).

Our research team has taken a keen interest in this case. We – in the form of the Human Rights Centre of Ghent University – have submitted a third party intervention to the Court in this case. Our submission focused on the issue of gender stereotyping and how that is addressed by other instruments of international law. We were expressly asked by the President of the Court not to address the facts or the merits of the case, so our comments had to be of a quite general nature.

Now some first impressions of the hearing. Continue reading

Saying It Is Doing It (comments on the hearing in the case of Aksu v. Turkey)

The famous American feminist legal theorist Catherine MacKinnon argued that pornography is an act of subordination. In Only Words, she notes: “Social inequality is substantially created and enforced – that is, done – through words and images. . .  Elevation and denigration are all accomplished through meaningful symbols and communicative acts in which saying it is doing it.” (p. 13)

It is this sort of insight that was crucially lacking in the recent hearing before the Grand Chamber in the case of Aksu v. Turkey. The hearings are online. I’ve blogged about this case before; here and here. Briefly, the case concerns a State-sponsored dictionary and book that contain derogatory stereotypes of Roma. The dictionary contains entries that define “Gypsy” as “(metaphorically) stingy” and the book contains passages that portray Roma as thieves, beggars and prostitutes.

The reason why we should care about Aksu is because words and images are not neutral and harmless vessels of expression, they do something. As MacKinnon says, words and images create and enforce social inequality. As might be expected, the representative of the Turkish state denied this completely. He referred to the entries in the dictionary as “sterile quotations from the language and literatureContinue reading

Kiyutin v. Russia: landmark case concerning the human rights of people living with HIV

Recently, the Court came down with a judgment that strongly condemns the stigmatization of people living with HIV. Kiyutin v. Russia is, as far as I was able to ascertain, the first case in which the Court rules on the merits of a claim of discrimination on the ground of a person’s HIV-positive status. Straight away, the Court has chosen to become a leader in the battle against stigma and discrimination of people with HIV. Continue reading

The Court offers protection to those who have a disability and are in detention (Jasinskis v. Latvia & Raffray Taddei v. France)

In the most recent round of judgments, squeezed in just before the festive season, are two interesting cases concerning the detention of persons with a disability: Jasinskis v. Latvia and Raffray Taddei v. France. These two cases are exemplary of many others, in which people with a disability are held in detention in appalling conditions. However, the cases get a bitter twist because the national authorities try to lay the blame on the detainees themselves. The Strasbourg Court does a good job protecting the human rights of the applicants.

What happened
The facts that constitute these cases are widely different. The first case concerns Valdis Jasinskis, who was deaf and mute since birth. Continue reading

“The special social role of women”: the Strasbourg Court does not buy it (Konstantin Markin v. Russia)

Last week, the Court delivered what might well turn out to be a landmark judgment on the issue of sex discrimination; Konstantin Markin v. Russia. The facts seem simple enough: a military serviceman was not entitled to the same parental leave as a military servicewoman would have had in his case. A classic discrimination case. Yet, on reading the case, it is apparent that a lot is going on that is worth discussing and worth applauding. Here are my first thoughts. Continue reading

Child maintenance and gender stereotypes: understanding J.M. v. the UK

A recent case, J.M. v. the United Kingdom, startled our research team. The case concerns a British child support rule that is at first glance counter-intuitive. The rule, from the Child Support Act 1991, states that the parent who does not have the primary care of the children is required to pay child support. So far little news. However, the amount of this support is reduced when the absent parent enters into a new relationship. The rule made no distinction between married and unmarried couples, but took no account of same-sex relationships. In this post I will highlight why the Court’s ruling is problematic and, moreover, why the underlying rule is deeply disturbing. Continue reading

In a school ALL pupils should be king! An example of segregation in a Belgian school.

From a minority perspective, this week was not a good week in Belgium. On Wednesday, a television broadcast proved that employment agencies cooperate actively with employers who don’t want to hire people with a foreign background (in Belgium the so-called “allochtonen”). An undercover journalist who posed as an employer searching for new employees, asked the agencies not to select people from a foreign background. Out of the 8 agencies, 6 admitted not having any problem with this question, even if it is unlawful. One of them literally said: “the client is king”!
Today was another sad day. A Belgian school, in the city of Lokeren, divides its children depending of their being “autochtoon” or “allochtoon” (this is how persons from respectively Belgian and immigrant roots are named in Belgium ). Continue reading

Just words? (Aksu v. Turkey Part II)

My post on Aksu v. Turkey received some criticism for not taking the freedom of expression into account. A brief memory-aid: Aksu is the case of a man of Roma origin who complained about degrading stereotypical remarks made about Roma in government-sponsored publications. In a “dictionary for pupils” and a book entitled “The Gypsies of Turkey” Roma were put down as “stingy”, “greedy”, “thieves” etc. (See my previous post).

News about the Court will pick up again – the Court will be releasing 21 judgments today – but because I find this such an interesting case I would like to take this opportunity to reflect further on Aksu, this time from a freedom of expression perspective.

The first thing that is remarkable from this perspective is that the Court decides to declare this application admissible. Continue reading

The Power of Definition: Stereotypes of Roma in Aksu v. Turkey

The European Court of Human Rights just rendered a judgment on the issue of stereotyped images of Roma in government-funded publications in Turkey. I think the majority decision (4 to 3) lacks sustained analysis and requires problematization. 

In the case of Aksu v. Turkey the applicant, mr Aksu, is of Roma origin. He complained about two publications (a book and a dictionary) that included harmful images of Roma, like the suggestion that Roma are stingy, fraudulent and aggressive. In his view, he had been discriminated against on account of his ethnic identity and he felt that these publications harmed his dignity. The Court treats his complaint under art. 14 in conjunction with art. 8. I will discuss the two publications and the Court’s treatment of them separately, as well as the dissenting opinion. Continue reading

A Strasbourg victory for the mentally disabled

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

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

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

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

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

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

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

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