New publication: Less Restrictive Means & the Strasbourg Court

First of all, a Happy New Year to you all, dear readers! As far as we are concerned, 2015 couldn’t have started better. We’re proud to announce the publication of the article “‘Don’t use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights”, written by prof. Eva Brems and I. The article is concerned with the emerging practice by the European Court of Human Rights to use more and more explicit lines of legal reasoning placing the examination of less restrictive means at the centre of its proportionality analysis. What is the theory behind this concept? How does it work in practice? Is there really a less restrictive means revolution going on in Strasbourg? For the answer to all these questions and more, you can access the article on the website of Human Rights Law Review.

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Seminar Announcement: Law’s Imagining of Religion

The Strasbourg Observers are back from a summer break with an exciting announcement: the Human Rights Centre of Ghent University organizes a seminar entitled “Law’s Imagining of Religion: A Debate across Disciplines.” The seminar will bring together religion and legal scholars from Canada, Europe and the United States, including Winnifred Fallers Sullivan, Cecile Laborde, Helge Arsheim, Malcolm Evans, Lori G. Beaman, Susanna Mancini, Solange Lefebvre, Mark Hill, Meadhbh McIvor and Lourdes Peroni.

WHEN: 23 September 2014

WHERE: Ghent University’s Faculty of Law, Voldersstraat 3, 9000 Ghent

WHAT: Speakers will address questions such as: Are the notions of religion underpinning the law inclusive enough to attend to today’s diversity of religious ways? If not, can and should these notions be legally “stretched” so as to become more responsive to such diversity? The morning sessions will focus on how law, including human rights law, understands and should understand religion. The afternoon sessions will focus on the ways in which the European Court of Human Rights conceives of and should conceive of religion. Scholars presenting in the afternoon will unpack the notions of religion underlying high-profile freedom of religion judgments (including S.A.S. Lautsi, Eweida and Bayatyan) and examine the extent to which these notions attend and should attend to applicants’ religious experiences.

A limited number of places are still available. Attendance is free, but registration is required. If you would like to attend this seminar please send an email to Lourdes Peroni at hrcevent@ugent.be.

This is the program:

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Mennesson v. France and Labassee v. France: Surrogate motherhood across borders

This guest post was written by Liesbet Pluym, PhD candidate at Ghent University.

Surrogate motherhood is a complex phenomenon which can lead to many different human right questions: would the absolute prohibition of surrogacy in domestic laws be in accordance with the right to respect for private and family life (art. 8 ECHR)? If it is legally regulated, would e.g. the exclusion of gay couples be in breach with article 8, 14 ECHR? Would denying maternal rights to the surrogate mother and not giving her a right to reconsider her decision once the child is born, be incompatible with the European Convention on Human Rights?

The application of international private law rules also leads to uncertainty concerning the compatibility with human right treaties en declarations. The cases of Mennesson v. France and Labassee v. France concerned the French refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of surrogacy treatment and the couples on whose request the treatment was performed. The European Court of Human Rights held that there had been a violation of the European Convention on Human Rights, in particular the children’s right to respect to private life ⎼ but no violation of the right of the children or intented parents to respect of family life.

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Vuckovic and others v. Serbia: is the Court getting stricter on the requirement to invoke the substance of the complaint domestically?

This guest post was written by Helena De Vylder. Helena is a Ph.D. Researcher at the Human Rights Centre of Ghent University. Her research concerns admissibility criteria in regional human rights systems.

On 25 March the Grand Chamber delivered its judgment in Vuckovic and others v. Serbia. The case was initiated by 30 reservists in the Yugoslavian army against the government’s refusal to pay per diems for their work during the NATO-intervention in Serbia in 1999. The case was dismissed for reasons of failure to exhaust domestic remedies. According to the majority, the applicants failed to invoke the substance of the complaint before the Constitutional Court. The dissenters criticize robustly the formalistic approach leading to this judgment.

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Finnish journalist’s arrest, detention, prosecution and conviction for disobeying a police order during a demonstration does not violate Article 10

This guest post was written by Dirk Voorhoof*.

In the case of Pentikäinen v. Finland the European Court found that a Finnish press photographer’s conviction for disobeying the police while covering a demonstration did not breach his freedom of expression. Both the International Federation of Journalists (IFJ) and the International Press Institute (IPI) have criticised the interference with the journalist’s rights and the IPI has expressed its disappointment with the judgment by the European Court for not sufficiently respecting the rights of journalists and the media to cover what is happening during public demonstrations, especially when they end up with a clash between the demonstrators and the police. The Court is not unanimous in its judgment: in a robust dissenting opinion, two judges argue that the measures against the journalist unnecessarily interfered with the right of newsgathering, protected under Article 10 ECHR. Continue reading

Poll: Best and Worst ECtHR Judgment of 2013 – The Winners!

Now that a little over a month has passed since the opening of the polls and over 250 votes have been cast, it is time to announce the winners – and ‘winners’ – in the categories of best and worst ECtHR judgment of 2013!

In the category of best judgment, celebrating the best the ECtHR had to offer in 2013, Vallianatos and Others v. Greece takes the prize with 22.5% of the vote, just ahead of Horváth and Kiss v. Hungary (17%) and Vinter and Others v. the United Kingdom (13.5%). In Vallianatos, the Grand Chamber of the Court took an incremental step towards full equality for LGBT by ruling that Contracting States that introduce a system of registered partnerships have to open that system up to same-sex couples, since barring them entails unjustified discrimination on the basis of sexual orientation.

In the category of worst judgment, indicating that there is always room for improvement, the ‘winner’ is even clearer. By far the worst ECtHR judgment of 2013, according to the votes received, was Delfi AS v. Estonia. Delfi received an impressive 37% of the vote, double that of the second placed Animal Defenders International v. the United Kingdom (18.5%), with Bouyid v. Belgium landing a solid third place with 15% of the vote. Fortunately, this is one of those wonderful cases in which we are able to report that bad news is followed by good news, since the ‘winner’ in the category of worst judgment – Delfi – has recently been referred to the Grand Chamber, offering the Court a chance to redeem itself!

Poll: Best and Worst ECtHR Judgment of 2013

Following the success of last year’s poll on the best and worst ECtHR judgment of 2012, we are hereby inviting all our readers to vote for the new edition: the best and worst ECtHR judgment of 2013. The poll is intended as a celebration of the best the ECtHR had to offer in 2013, but also as a reminder that it sometimes failed to effectively protect the Convention’s human rights.

To guide the process, we have taken the liberty of proposing a preliminary selection of candidates in each category (listed in reverse alphabetical order). However, feel free to indicate your preferred – or despised – alternative judgment by selecting the option “Other”. We will have access to the names of the judgments entered and will regularly post an update on the votes for “Other” in the comments section.

And now, here are the nominees in the categories of best and worst ECtHR judgment of 2013:

 

 

 

A brief summary of the nominated judgments follows below. A link to a blog post on each judgment is also offered, providing further insights into the reasons for its nomination.

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New publication: Shaping Rights in the ECHR

We are happy to announce the publication of the book “Shaping Rights in the ECHR – The Role of the European Court of Human Rights in Determining the Scope of Human Rights”, edited by Eva Brems and Janneke Gerards, and published by Cambridge University Press. The book consists of a collection of papers presented at a seminar our research team co-organized together with Prof. Gerards (Nijmegen University) in March 2012 in Ghent.

This is the abstract:

“In fundamental rights adjudication, a court first has to determine whether the interest at stake falls within the scope of the fundamental right invoked. Whether or not an individual interest falls within the scope or ambit of one of the fundamental rights protected by the European Convention on Human Rights determines whether or not the European Court of Human Rights can decide on the merits of a case. This volume brings together a variety of legal scholars in order to examine the scope of fundamental rights. Topics range from the nature of human rights and the real or imagined risk of rights inflation to theories of positive obligations and social and economic rights. It contains contributions of a theoretical nature as well as analytical overviews of the ECtHR’s approach. In addition, comparisons are made with domestic, EU and international law.”

 

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Call for proposals: “Longer-term reform of the ECHR system and the European Court of Human Rights”

We would hereby like to inform our readers of a call for information, proposals and views on the longer-term future of the system of the European Convention on Human Rights and the European Court of Human Rights, recently launched by the Council of Europe:

The Council of Europe’s Committee of experts on the reform of the European Court of Human Rights (DH-GDR) is holding an open call for information, proposals and views on the issue of the longer-term reform of the system of the European Convention on Human Rights and the European Court of Human Rights.

This process follows on from the Brighton Declaration, adopted at a High-level conference in April 2012. It is intended to be open and inclusive, allowing questions to be raised and examined concerning all aspects of the Convention system and the Court.

The results of this work will eventually be included in a report of the Steering Committee for Human Rights (CDDH), to be submitted by 15 April 2015 to the Council of Europe Committee of Ministers.

The consultation process is open to everyone, subject to certain basic procedural requirements, set out in the submission form.

The deadline for submitting contributions is mid-day (12 p.m., French local time) on Monday 27 January 2014.

More information on the call, including the submission form, can be found here (in English) and here (in French).

Failure to protect minor against stepfather filming her naked violates Article 8: Grand Chamber agrees with our third party intervention in Söderman v. Sweden

On 12 November, the Grand Chamber issued its judgment in the case of Söderman v. Sweden (formerly known as E.S. v. Sweden), finding that Sweden had failed to comply with its positive obligation to protect the applicant’s right to respect for private life (Article 8 ECHR). According to the Grand Chamber, neither a criminal remedy nor a civil remedy existed under Swedish law that could have enabled the applicant to obtain effective protection against the violation of her personal integrity.

The case concerns a fourteen year old girl who discovered that her stepfather had attempted to secretly film her naked – he had hidden a video camera in the laundry basket in the bathroom, directed towards the spot where she normally undressed. The stepfather was not convicted because under Swedish law this act did not qualify as sexual molestation or attempted child pornography, nor was there a general prohibition in Swedish law against filming an individual without his or her consent.

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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

Newspaper Editor Criminally Liable for Senator’s Op-Ed, But Prison Sentence Violated Article 10: Belpietro v. Italy

This guest post was written by Ronan Ó Fathaigh* and Dirk Voorhoof**

Nine years ago, in its landmark Cumpănă and Mazăre v. Romania judgment, a unanimous Grand Chamber laid down a rare absolute rule that prison sentences for defamation are never justified under Article 10 where the defamatory statements concern a matter of public interest. This rule against prison sentences included pardoned, suspended, or conditional sentences, effectively removing from European legislatures and courts the ability to impose such sentences. Last week, the Second Section of the Court correctly applied Cumpănă and Mazăre, holding in Belpietro v. Italy that a suspended four-month prison sentence given to a newspaper editor for criminal defamation violated Article 10. Somewhat more controversially, however, the Court also held that in principle, imposing criminal liability on a newspaper editor for publishing a defamatory article written by an Italian senator raised no issue under Article 10.

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Söderman v. Sweden: third party intervention of our Human Rights Centre

We were in Strasbourg yesterday to attend the Grand Chamber hearing in the case of Söderman v. Sweden. In this case, formerly known as E.S. v. Sweden, the Human Rights Centre of Ghent University  has submitted a third party intervention. We expect the Grand Chamber judgment to become the leading case on positive obligations under Article 8 ECHR. At the hearing, we were excited to hear the lawyers of both the applicant and the Swedish state referring to our third party intervention in their  oral submissions (for a podcast of the hearing, see here).

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Procedural Justice in Human Rights Adjudication: The European Court of Human Rights

In the context of the project “Strengthening the European Court of Human Rights: More Accountability through Better Legal Reasoning”, Eva Brems and I have written an article in which we explore the relevance of the socio-psychological concept of ‘Procedural Justice’ for the European Court of Human Rights. I am proud to announce that this article has just been published in the February edition of Human Rights Quarterly. The full reference of the article is Eva Brems and Laurens Lavrysen, “Procedural Justice in Human Rights Adjudication: The European Court of Human Rights”, 35 Human Rights Quarterly (2013), 176-200, and you can access the article here.

To give you a glimpse of the article, here is the abstract:

The social psychological theory of procedural justice emphasizes the fundamental importance of procedural fairness judgments in shaping citizens’ satisfaction and compliance with the outcome of a legal process and in strengthening the legitimacy of legal institutions. This article explores the benefit of applying procedural justice criteria (participation, neutrality, respect, and trust) in human rights adjudication, with a particular focus on the European Court of Human Rights (ECtHR). It is argued that the ECtHR should take these criteria into account both at the level of its own proceedings and in evaluating how human rights have been dealt with at the domestic level.

Poll on the Best and Worst ECtHR Judgment of 2012: the ‘Winners’

Now that our poll on the best and worst ECtHR judgments of 2012 has been running for a couple of weeks, we considered it a good moment to formally announce the results of the voting, as of now.

We curiously noted that visitors were much more likely to vote for best judgment (171 votes) than for worst judgment (91 votes). If this was due to a sense of optimism, a desire to focus on celebrating the good, rather than chastising the bad, then we applaud such a positive attitude! Despite our repeated criticism of certain Court judgments, we also consider that the Court should receive a high five for “job well done!” much more frequently than it should be berated for failing to protect human rights in the Council of Europe region.

With that thought in mind, here is the top three in each category:

Best judgment

1) Yordanova and Others v. Bulgaria (34.5%)

2) El-Masri v. the former Yugoslav Republic of Macedonia (22.22%)

3) Hirsi Jamaa and Others v. Italy (18.71%)

This indicates Yordanova and Others v. Bulgaria as a clear (and somewhat surprising, given that it was not a Grand Chamber judgment) winner in the best judgment category. But really, all three judgments show us what the ECtHR is capable of when it is at its best. And the Court deserves ample praise for that!

Worst judgment

1) Austin v. the United Kingdom (25.27 %)

2) Van der Heijden v. the Netherlands (23.08%)

3) Scoppola v. Italy (no. 3) (21.98%)

Voting was so close that these three Grand Chamber judgments could all be considered the ‘winners’ in the worst judgment category. And thus, really, the big losers of 2012. The disappointing outcome and lackluster reasoning in all three cases should function as a strong reminder why it is appropriate – yes, even necessary – for the ECtHR to be criticized whenever it lets slip the excellent standards it generally upholds.

On a sidenote, we should emphasise that the voting results for worst judgment reveal that at least one other Grand Chamber judgment would have deserved a nomination in this category. Mouvement Raëlien Suisse v. Switzerland received five votes, despite not even having been nominated!

Poll: the best and the worst ECtHR judgments of 2012

To start off 2013, we are organising a poll to celebrate the best and recall the worst the ECtHR jurisprudence had to offer in 2012. We are inviting all readers to vote for what they consider to be the best and the worst ECtHR judgment of 2012, in the two polls below.

We have nominated five judgments in each category (ranked alphabetically). You can find a short summary of each judgment below, as well as the reasons for its nomination and links to our blog post(s) on the case.

If you do not find your own preferred judgment among our nominees, you can select the option “other” and write the name of the judgment (for the detailed results under “other”, see the comments at the bottom of this post). If you choose to suggest an alternative, we kindly invite you to motivate your choice by writing a comment to this post (comments are moderated; please only submit one and wait for us to clear it).

Happy voting!

 

 

For an overview of the nominees, click on “Read more” Continue reading

MICHAUD V. FRANCE: A step forward into the Bosphorus doctrine, or a step backward into “subjective” foreseeability?

This guest post was written by Daria Sartori.*

Two weeks ago, the European Court delivered a judgment in the case of Michaud v. France.

Even though it is not final yet, this judgment is highly interesting because of its dual core,  giving better shape to the Bosphorus doctrine while reaching questionable conclusions on the nature of national law’s “foreseeability” test. Continue reading

Redfearn v. the United Kingdom: Protection against Dismissals on Account of Political Belief or Affiliation

Last month, the Court decided a case that may end up in the Grand Chamber: Redfearn v. the United Kingdom. The case concerns the dismissal of an employee on account of his political affiliation with the British National Party (“the BNP”). At the relevant time, the BNP “only extended membership to white nationals” (paragraph 9). The Court was sharply divided (4-3 with Judge Bratza among the dissenters). Though the main issue before the Court was narrow – whether the applicant should have had the opportunity to challenge his dismissal on grounds of political belief or affiliation – the case indirectly confronts the Court with more difficult and substantive questions, including whether the applicant’s political view/affiliation (racist) should be entitled to claim protection. Moreover, the case raises issues as to how far the Court can go in imposing positive obligations on States to offer protection against dismissals on account of political belief and affiliation.

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NEW BOOK: Diversity and European Human Rights: rewriting judgments of the ECHR

Our research team is delighted to announce the publication of our book “Diversity and European Human Rights: rewriting judgments of the ECHR” edited by prof. dr. Eva Brems and published by Cambridge University Press. This book is the fruit of the conference “Mainstreaming Diversity: Rewriting Judgments of the European Court of Human Rights” that we organized in the premises of the Strasbourg Court in February 2011. Continue reading

Is the Strasbourg Court tough on migration?

One of the reasons why critics continue to attack the Strasbourg Court is its alleged judicial activism in the field of migration.  The recent case of Shala v. Switzerland  illustrates that the criticism on the Court is at best exaggerated and at worst simply a straw man. In this case, the Court all too easily accepts the expulsion of a settled migrant, on the basis of some light criminal convictions. This blog post highlights some of the judgment’s flaws, in particular how it is hard to reconcile with Grand Chamber case-law, and how the judgment fails to do justice to the real experience of the families concerned.

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Racial Discrimination in Strasbourg (Part II): Intersectionality and Context

In this post, I would like to discuss two recent cases dealing with the investigation of racial/sexual violence, as both of them offer promising legal reasoning on the topic. The first case, B.S. v. Spain, represents a key step in the recognition of intersectional discrimination. The other, Fedorchenko and Lozenko v. Ukraine, puts strong emphasis on contexts of widespread discrimination (as evidenced by international reports) in determining whether states have complied with their duty to investigate if violence was racially motivated.

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Juge Tulkens, un hommage en forme d’acrostiche

The Strasbourg Observers are delighted to post this tribute to Judge Tulkens by Professors Emmanuelle Bribosia and Isabelle Rorive (Université libre de Bruxelles).

Justice.- Qui mieux que Françoise Tulkens incarne la justice ?  Femme de principe, elle l’a encore été dans l’affaire Yoh-Ekale Mwanje c. Belgique (arrêt du 20 décembre 2011) qui concernait une ressortissante camerounaise atteinte du VIH dont l’espérance de vie serait fortement réduite en cas d’expulsion. Sans s’opposer frontalement, au nom de la sécurité juridique, à la jurisprudence récente de la Grande Chambre (N. c. Royaume-Uni, arrêt du 27 mai 2008) où elle avait rendu une opinion dissidente commune particulièrement étayée, elle a, avec cinq autres juges de sa section, signé une opinion partiellement concordante. Critiquant le seuil de gravité requis –« être quasi-mourant »- pour qu’une expulsion entraîne une violation de l’interdiction des traitements inhumains ou dégradants, les six juges résistent tout en évitant l’écueil de la dissidence perpétuelle : ils invitent clairement la Cour à revoir sa position.

Utopie.- Convaincue que la discussion est plus porteuse que la coercition, Françoise, Tulkens a soutenu sans relâche les échanges entre juridictions. Contributrice indéfectible du dialogue entre juges, du nom du séminaire marquant la rentrée judiciaire de la Cour européenne depuis 2005, elle conçoit ces rencontres non pas comme « une conversation de salon », mais bien comme « un échanges d’idées et d’arguments, une communication au sens substantiel du terme » (Dialogue entre juges, 2011).  Dans le contexte du foisonnement des sources et de leurs interprètes, ce dialogue s’avère crucial pour éviter la fragmentation et permettre la construction d’un droit commun des droits de l’homme auquel elle est profondément attachée, quitte à se faire taxer d’utopiste.

Genre. Continue reading

Violence Against Roma: Unmasking Racist Motives

One case I want to flag among the recent judgments of the Court is Koky and Others v. Slovakia. The case concerns an attack with possible racial overtones at a Roma settlement. In this post, I highlight a couple of interesting aspects of the Court’s reasoning under Article 3 but puzzle over the exclusion of Article 14 analysis.

Facts

The attack was perpetrated on 28 February 2002 at around 9:45 p.m. by a group of at least twelve private individuals. Some of them were wearing balaclavas and armed with baseball bats and iron bars. The assault resulted in bodily harms and property damages. The applicants claimed that the violent event was racially motivated. Continue reading

Strasbourg Observers Blow Out Two Candles

This month we are celebrating the Strasbourg Observers’ survival in the blogosphere – two years and counting! – and our continued eagerness to share our views on the Court’s case law with you, our readers.

Much to our delight, we seem to be attracting more and more people. Over the past year, our blog has landed more than 75,000 page views, bringing us to a current grand total of over 130,000 views.

432 persons have been brave enough to click the “Sign me up!” button. We are grateful for their demonstrated appreciation of our blog and their remarkable perseverance in reading our posts!

We also, and particularly, warmly thank the many guest bloggers who have joined us in commenting on the Court’s case law. Colleagues at Ghent University, fellow academics from other universities, lawyers and members of NGOs alike, thank you for having elevated our blog to a higher level with your insightful and excellent posts!

We recently also gained access to a world map, indicating the countries from which people reach us (strictly numerical and entirely anonymous, of course). Over the past two months, the once blank map has been coloured by visitors from nearly 150 countries! We seem to be most popular in the United Kingdom. The number of page views from the UK by far outranks the other countries and is equivalent to that of the next four countries combined (the United States, Belgium, France, and the Netherlands).

We thank all of you, wherever you may reach us from, for reading our posts and sharing your thoughts with us. We hope you will join us for another fruitful year of commenting on the Court’s case law. Bedankt, gracias, paldies!

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

Francesco Sessa v. Italy: A Dilemma Majority Religion Members Will Probably Not Face

This post was co-authored by Saïla Ouald Chaib and Lourdes Peroni

This week, in a 4-3 judgment, the Court ruled against a violation of the freedom of religion of Mr. Sessa, a lawyer and member of the Jewish faith, unable to attend a court hearing scheduled on Yom Kippur. The case is Francesco Sessa v. Italy. After two recent steps forward in freedom of religion cases (see here and here), the Court with this case takes several steps back. Fortunately, the dissenting opinion leaves the door open for future reasonable accommodation cases.

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Interception-at-sea: Illegal as currently practiced – Hirsi and Others v. Italy

This post is written by Marie-Bénédicte Dembour. She is Professor of Law and Anthropology at the University of Sussex. She is the author of Who Believes in Human Rights? Reflections on the European Convention and currently preparing a monograph provisionally entitled Migrant First, Human When? Testing Human Rights in the European and Inter-American Courts.

Europe does not like the ‘irregular’ migrants who, typically originating from economically struggling and/or war-torn countries, arrive on her shores without any document – and certainly no visa – after long travels. She has devised more and more strategies to keep these people at bay. One of these is to persuade so-called transit countries to take back migrants intercepted at sea. An emblematic example of this strategy is a bilateral cooperation agreement which Italy and Libya signed in December 2007 and its Additional Protocol of February 2009, whereby Libya pledged to support the Italian authorities in their fight against clandestine immigration in exchange for infrastructure, training and money. From the perspective of the authorities, the cooperation was entirely successful. It led the Italian Minister of the Interior to report and boast to the Italian Senate in May 2009, for example, that thanks to the agreement 471 irregular migrants had been intercepted on the high seas and transferred to Libya earlier that month. From a human rights perspective, this kind of strategy is disastrous from many various reasons, not all of which can be detailed in this blog.

Hirsi Jamaa and Others v. Italy is the first case in which the European Court of Human Rights delivers a judgment on interception-at-sea. In the present context the latter term is a short-hand for referring to the enforced return of irregular migrants to the point of departure of their attempted Mediterranean crossing, without any individual processing, let alone examination of asylum claims. Unanimously, the Grand Chamber found a violation of Article 3 ECHR prohibiting inhuman and degrading treatment on a double count (risk of ill-treatment in Libya and risk of repatriation from Libya to countries where ill-treatment is rife), a violation of Article 4 of Protocol no. 4 prohibiting collective expulsion and a violation of Article 13 ECHR guaranteeing a domestic remedy for any arguable complaint of a violation of the Convention. These verdicts, reached by the Grand Chamber unanimously on 23 February 2012, undoubtedly put into question the kind of bilateral and multilateral agreements which have been signed by European states in the last decade or so in order to fight clandestine immigration, not to mention the fact that they indirectly require major aspects of European migration policy to be revised.

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Yes Prime Minister!

This post is written by Dirk Voorhoof* and Rónán Ó Fathaigh**

In the case of Tuşalp v. Turkey, the European Court was asked to consider whether two defamation actions taken by the Prime Minister of Turkey against a journalist for protection of his personality rights were compatible with Article 10 of the European Convention.

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U.S. Supreme Court and ECtHR: Conflicts between Religious Autonomy and Other Fundamental Rights

Cases involving conflicts between religious autonomy and other rights such as non-discrimination and respect for private life seem to be gaining more and more prominence in different parts of the world. One recent example is the U.S. Supreme Court’s landmark ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al. The case concerned an employment discrimination suit filed by a teacher challenging her church’s decision to fire her. For the first time, the U.S. Supreme Court deals with what is known as the “ministerial exception.” The exception, the Court holds, “ensures that the authority to select and control who will be minister to the faithful – a matter ‘strictly ecclesiastical,’ – is the church’s alone.”

Although the European Court may be a “comparative newcomer,” cases involving similar issues have been on the way up in Strasbourg.[1] Over the last few years, the Court has decided in several cases against Germany: Obst, Schüth, Siebenhaar and, most recently, Baudler, Reuter and Müller. In these cases, applicants with a variety of roles (including, organist, teacher and ministers) within different churches have complained about violations of their right to respect for private and family life, freedom of religion, and access to courts.

How has the U.S. Supreme Court approached the controversy in Hosanna-Tabor? And, in which ways has the European Court of Human Rights dealt with similar issues? In this post, I briefly look at these questions.

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French Roma policy violates European Social Charter

In a decision of 28 June (COHRE v. France, no. 63/2010), which was only recently made public, the European Committee of Social Rights has found the French zero tolerance policy towards East European Roma living in illegal camps to be in violation of the European Social Charter. The case, which was lodged by the NGO Centre on Housing Rights and Evictions (COHRE), concerns the eviction and expulsion measures announced by French president Sarkozy in the summer of 2010. Hundreds of illegal camps were dismantled and thousands of Roma were expelled to Romania and Bulgaria. Most expulsions took place on a “voluntary” basis, in exchange for the payment of 300 euro per adult and 100 euro per child. Continue reading

Turkish Law Criminalising “Denigration of Turkish Nation” Overbroad and Vague

This guest post is co-authored by Rónán Ó Fathaigh and Chris Wiersma, two colleagues from the Human Rights Centre. More information on Rónán and Chris can be found on the website of the Center for Journalism Studies of Ghent University, here 

In its recent Akçam v. Turkey judgment, the Second Section of the European Court was again called upon to consider the controversial Article 301 in Turkey which criminalises “denigration of the Turkish Nation”. The Court unanimously concluded that the law was overbroad and vague, resulting in a violation of Article 10 of the European Convention.

The law was previously considered in Dink v. Turkey (see an excellent post by Lourdes), where the Second Section had held it was unnecessary to decide the issue of overbreadth. The law has been subject to much criticism, in particular relating to its application to persons expressing opinions on Ottoman Empire policy towards Armenians in 1915 being genocide. Continue reading

Stummer v. Austria: gradually moving towards a right to an old-age pension for working prisoners?

By Ingrid Leijten.

Ingrid Leijten works as a Ph.D. fellow and teaching assistant at the Leiden University Faculty of Law, Department of Constitutional and Administrative Law. Her research interest lies in the development of the ECHR and the practice of the ECtHR in relation to the Member States’ policymaking.

Stummer v. Austria deals with the affiliation of prisoners to an old-age pension system. After the application was declared admissible, jurisdiction was relinquished in favour of the Grand Chamber (Art. 30 ECHR). The case indeed raises serious questions affecting the interpretation of the Convention. The Grand Chamber’s response to these questions is interesting, and worth reflecting upon.  Continue reading

Happy anniversary!

Dear blog visitor,

This month, it is a year ago that the blog gave birth to its first posts. 102 posts later, here we are! When we started this blog, we could only dream of the current results. 32,407 views in 2010 and already 22,504 for the first part of 2011. While in 2010 we reached an average of 128 views a day, in 2011 this average increased to 194 and we hope that our readership continues to grow!

On behalf of our team, we warmly thank you for your interest in our blog. You supported us and encouraged us to be creative. We also want to thank all the guest bloggers who contributed to the blog; your expertise and enthusiasm was not only appreciated by us, but also by the readers. Also thanks to the commentators; your critical reflections are essential to keep the debate alive.

Please join us for a second year of blogging!

The Strasbourg Observers

Rahimi v. Greece and the proceduralization of children’s rights

By Laurens Lavrysen*

In the recent case of Rahimi v. Greece, the European Court of Human Rights had to rule over the detention and the lack of care of a 15 year old Afghan unaccompanied minor. At arrival in Greece, he was placed in detention for two days, after which he was abandoned to live on the streets.

Despite the short duration of the detention, the Court found a violation of Art. 3 ECHR because of the dreadful detention circumstances and because of the applicant’s extremely vulnerable situation. In line with the recent Grand Chamber judgment of M.S.S. v. Belgium and Greece, the Court also concluded that the negligence of the Greek authorities to take adequate care of the applicant – the Court particularly emphasized the lack of action to provide him with a guardian – also amounted to a violation of Art. 3 ECHR. Continue reading

Abuse of ‘forum shopping’ in defamation case and freedom of academic criticism

By Dirk Voorhoof, Ghent University / Legal-Human-Academy*

On March 3, 2011, the Tribunal de Grand Instance de Paris issued its decision in a case that has alarmed journal editors and reviewers, being afraid it could  have a chilling effect on scholars’ and editors’ willingness to publish book reviews. The case concerns the  criminal libel case against professor Joseph Weiler based on a complaint by Dr. Karine Calvo-Goller. The case was brought against Weiler in his capacity as editor-in-chief of the European Journal of International Law (EJIL) and its associated Book Review website http://www.GlobalLawBooks.org. It was brought as a result of the refusal by Weiler to remove a review by professor Thomas Weigend (University of Cologne, Law Faculty), critical of a book written by Dr. Karin Calvo-Goller, The Trial Proceedings of the International Criminal Court. ICTY and ICTR Precedents (Martinus Nijhoff Publishers). Continue reading

M.S.S. v. Belgium and Greece (2): The impact on EU Asylum Law

By Laurens Lavrysen*

As Lourdes explained in her blog post, “any attempt to comment exhaustively on the recent landmark ruling of the Grand Chamber in M.S.S. v Belgium and Greece in one page would be bound to fail.” This post will therefore focus on the impact of this judgment on EU Asylum Law, in particular on the application of the Dublin II Regulation and on the Reception Conditions Directive. Continue reading

Meet the Strasbourg Observers! We are organizing a conference on “Mainstreaming Diversity” in Strasbourg

On February 3 and 4, you can meet us in Strasbourg where we organize the conference: “Mainstreaming Diversity: Rewriting Judgments of the European Court of Human Rights”

The conference wants to suggest ways in which the European Court of Human Rights might improve its mainstreaming of diversity concerns. The conference is organized in six panels, respectively dealing with gender, cultural minorities, religious minorities, children, disability and sexual orientation.

In each panel, three persons will propose a new draft of some crucial passages in a judgment of the European Court of Human Rights, in order to improve its accommodation of minority concerns. Judges of the European Court of Human Rights and NGO-representatives will comment on the proposals.

On our blog we are constantly commenting on the case law of the European Court of Human Rights. Now, with this conference we aim to bridge the gap between academic analysis and judicial practice. Academics are invited to move one step further compared to what we usually do, i.e. analyze and criticize a judgment. Instead of standing at the sidelines, academics are invited to roll up their sleeves and do the arduous work of drafting a judgment themselves.

We warmly invite all our readers to participate in this conference! Attendance is free.

For more detailed information and registration please visit the website: http://www.mainstreamingdiversity.com/

We look forward to meeting you!

The Strasbourg Observers

It’s okay to discriminate transsexuals in the best interests of their children

This post has been written by Laurens Lavrysen, one of our colleagues at the Human Rights Centre.


In P.V. v. Spain (no. 35159/09), the European Court of Human Rights Court had to rule over an application by a male-to-female transsexual with regard to restrictions imposed on the contact arrangements with her son. Invoking Article 8 in conjunction with Article 14 of the European Convention, the applicant alleged to be discriminated against on the ground of her gender modification. The Strasbourg Court however agreed with the domestic courts that the restrictions could be considered as being in the best interests of the child and decided that this did not amount to a discrimination. 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

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

Extra procedural safeguards for protection of journalistic sources: Sanoma Uitgevers B.V. v. the Netherlands

This guestblog is written by professor dr. Dirk Voorhoof*.

On 14 September 2010 the Grand Chamber of the European Court of Human Rights overruled an earlier finding by the Third Section Chamber in a case regarding the protection of journalistic sources. The judgment of 14 September 2010 puts the jurisprudence of the European Court back on the track and creates a new landmark judgment in international human rights law regarding press freedom, the role of media as public watchdogs and protection of journalistic sources. 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