Aldeguer Tomás v. Spain: a missed opportunity for the Court to provide guidance concerning the legal recognition of same-sex relationships

Last year, the Court issued the judgment of Oliari and Others v. Italy, described on this blog as “a stepping stone towards full legal recognition of same-sex relationships in Europe.”  In this judgment the Court recognized that Article 8 ECHR encompasses a positive obligation on States to put in place a legal framework providing for the legal recognition and protection of same-sex relationships. The Court in particular emphasised that such legal framework must at least provide for the “core rights relevant to a couple in a stable and committed relationship” – as opposed to supposedly “supplementary” rights, such as for example the question whether such legal framework should allow same-sex couples to marry, a question which the Court in its Schalk and Kopf judgment considered to fall within the State’s margin of appreciation. The Court however failed to provide any guidance on what should be understood under those enigmatic “core rights”.

In the recent case of Aldeguer Tomás v. Spain, the Court however fails to build upon the Oliari judgment in order to provide more guidance in the area of the legal recognition of same-sex relationships. The case concerns the inability of the surviving partner of a same-sex relationship to receive a survivor’s pension. Continue reading

Strasbourg Court fails to acknowledge discrimination and stigmatization of persons living in poverty

In the recent case of Garib v. the Netherlands, the Court considered that a policy imposing minimum income conditions on persons wishing to settle in a number of inner-city areas of the city of Rotterdam did not violate the freedom to choose one’s residence as guaranteed by Article 2 Protocol No. 4. In doing so, the Court over-relies on the margin of appreciation doctrine and fails to acknowledge the discriminatory and stigmatizing effects of such policy faced by persons living in poverty. Continue reading

The Winners: Poll on Best and Worst ECtHR Judgment of 2015

The results of our poll on best and worst ECtHR judgment of 2015 are in! We are excited to announce the results now that exactly a month has passed since the opening of the polls.

In the category of best judgment, celebrating the best the ECtHR had to offer in 2015, the top three are:

Bouyid v. Belgium: 29%

Oliari and Others v. Italy: 27%

Khlaifia and Others v. Italy: 20%

In the category of worst judgment, indicating that there is always room for improvement, the top three are:

Ebrahimian v. France: 26%

Pentikäinen v. Finland: 23%

A.S. v. Switzerland: 18%

Thanks for voting. We already look forward to next year’s edition of the poll!

Poll: Best and Worst ECtHR Judgment of 2015

Following an annual and cherished tradition, we are hereby launching our poll for the best and worst ECtHR judgment of 2015!

As usual, preselecting a limited number of contenders was both fun and hard. There is always room for debate. Always other judgments that deserve a shot at the title. Other judgments to cheer at. And other judgments to boo (somewhat). But we hope you find your champ among our contenders. If not, you can always support an underdog by selecting ‘Other’.

The winners and losers will be announced in about a month.

To refresh your memory on the nominated judgments – or introduce you to them – we have included brief summaries below the polls (click ‘Continue reading’, immediately below the polls).

[the order of judgments in both polls is automatically randomised on each page visit]

SUMMARIES OF JUDGMENTS

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Don’t open the floodgates: fines and Article 1 Protocol 1

In the recent case of Konstantin Stefanov, the Strasbourg Court examined the acceptability of a fine (the equivalent of EUR 260) imposed on a lawyer, appointed ex officio by a domestic court, for declining to represent a defendant from the viewpoint of Article 1 Protocol 1. The Court did not find a violation of this provision, taking into account the wide margin of appreciation allowed to the State in order to guarantee the smooth functioning of the justice system, the fact that a remedy to challenge the fine had been available to the applicant and because the Court considered the amount of the fine “neither prohibitive, nor oppressive or otherwise disproportionate”. This blog post is not concerned with the outcome of the case, but rather with the remarkable fact of the Court considering it self-evident that the imposition of a fine interferes with the right to peaceful enjoyment of one’s possessions.

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New publication: Poverty and the ECHR

I’m happy to announce the publication of my article “Strengthening the Protection of Human Rights of Persons Living in Poverty under the ECHR” in the September edition of Netherlands Quarterly of Human Rights. In my article, which could hardly be any more topical than in today’s austerity-struck Europe, I address questions such as: what is the European Court of Human Rights’ record in protecting the human rights of persons living in poverty? What are the limitations of its current approach? What kind of legal approaches could assist the Court in better grasping the nature of poverty as capability deprivation? And how could this, ultimately, result in a stronger protection of the human rights of persons living in poverty?

This is the abstract:

In recent years, the European Court of Human Rights has developed a significant jurisprudence which illustrates the added value of the European Convention on Human Rights (ECHR) in the field of poverty. Building on the findings of Amartya Sen’s “capability approach”, the article examines the extent to which the Court has grasped the nature of poverty as “capability deprivation”. It is argued that, due to polycentric concerns and a reluctance to overcome the negative / positive obligations and civil and political / social and economic rights dichotomies, the Court has only, to a limited extent, done so. Subsequently, three approaches are examined that could allow it to better take into account the findings of the “capability approach” and that could allow for enhanced protection of the human rights of persons living in poverty under the ECHR: endorsing a more complex perspective on the responsibility of the state; analysing poverty as a failure to provide substantive equality; and recognising the vulnerability of persons living in poverty.

Research methodology for case law analysis: An appeal for openness

By Saïla Ouald Chaib

The enrolment as a PhD student does not come with a handbook. Consequently, you are somewhat forced from the start to reflect not only about the research subject, but also on the methodology you will use. In my case indeed, I spent some time not only doing research on the substantive part of my dissertation topic, but also doing research on doing research. My dissertation focused on the right to freedom of religion in the jurisprudence of the Strasbourg Court and case law analysis occupied therefore a central position in my work. Very soon I was confronted with a lot of questions. Do I first dive into the literature on the subject or do I first analyse the case law? Which cases should I read and how many? How should I approach the case law? This blogpost does not intend to draw a roadmap of how to conduct case law analysis. In fact, there is no such thing as one case-law analysis method. Instead, I want to share one of the ways I analysed the case-law and how methodologies from outside the legal sciences inspired me in the process. Continue reading