Pryanishnikov v. Russia: the production and distribution of erotic and pornographic material under Article 10 of the ECHR

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 Pryanishnikov v Russia, a case concerning the authorities’ refusal to grant the applicant a film reproduction license, the European Court of Human Rights (hereinafter ECtHR or Court) found a violation of the right to freedom of expression, as the only reason advanced by the domestic courts for the refusal of the relevant license had been based on mere suspicions rather than findings of fact. Moreover, the Court concluded that the authorities had failed to strike a fair balance between the right to freedom of expression and the need to protect public morals and the rights of others. Beyond the judgment itself and the finding of a violation of Article 10 of the European Convention of Human Rights (hereinafter ECHR), what merits attention is the elaborate concurring opinion delivered by Judge Pinto de Albuquerque on the regulation of pornography and the justification of restrictions of such material at a European and national level. Continue reading

Of firearms and weak women: sex discrimination in Hülya Ebru Demirel v. Turkey

Dr. Alexandra Timmer was one of the co-founders of this blog in 2010. She is assistant professor human rights law at Utrecht University, and acting specialist coordinator gender equality of the European network of legal experts in gender equality and non-discrimination.

Hülya Ebru Demirel v. Turkey is a case concerning sex discrimination in employment. A state-run regional electricity company refused to appoint the applicant because she was a woman, and the ECtHR duly found a violation of Article 14 ECHR. The judgment is largely a redux of Emel Boyraz v. Turkey (December 2014), which was based on similar facts. Demirel and Boyraz are interesting to discuss, as there are very few ECtHR cases concerning sex discrimination in employment. Unfortunately, as this blogpost will argue, the Court failed to address the structural hurdles that the applicants, because they are women, faced in the labor market. The State relied on obvious gender stereotypes, but the Court’s reasoning does not enter into that.  Continue reading

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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New ECSR decision on conscience-based refusals protects women’s right to access abortion

Guest post by Katrine Thomasen, Legal Adviser for Europe, Center for Reproductive Rights. The Center for Reproductive Rights together with the Swedish Association for Sexuality Education (RFSU) submitted joint observations to the ECSR regarding the complaint.

The European Committee of Social Rights (Committee) recently rejected a complaint filed by the Federation of Catholic Families in Europe (FAFCE) against Sweden that claimed health professionals are entitled to deny women legal abortion services based on claims of personal conscience. In dismissing each one of FAFCE’s claims, the Committee reaffirmed women’s right to access reproductive health services and upheld Sweden’s robust legal and policy framework that protects these rights. The decision reinforces previous jurisprudence from the European Court of Human Rights that women’s access to reproductive health care may not be jeopardized by health care professionals’ personal refusals to provide relevant services.

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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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C.N. v. United Kingdom: the Court addresses domestic servitude

Amongst all the rightful concerns about the Strasbourg Court’s case-overload, I often find myself wondering about the cases that the Court isn’t getting. Some structurally occurring human rights violations aren’t receiving the attention of the Court – at least not in any amount that is proportionate to their scale. Domestic violence against women is one example, as is trafficking and domestic servitude. There is an extremely worrying dearth of judgments on these issues.

C.N. v. the United Kingdom, a case about a woman who was held in domestic servitude, is therefore a welcome ruling. This is just the fourth judgment in which the Court finds a violation of the prohibition of slavery, forced labor and servitude (Article 4 ECHR).[1] In this post I will highlight the most salient aspects of the Court’s reasoning. Continue reading

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

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

Court condemns forced sterilization of Roma woman

This post is co-authored by Lourdes Peroni and Alexandra Timmer

The Court has recently ruled in V.C. v. Slovakia, a case brought by a Roma woman who complained that she was sterilized without her informed consent. The judgment is no doubt a landmark decision with crucial implications for women belonging to minority ethnic groups. In this post, we argue the Court’s reasoning is spot on in several respects and outline the reasons why.  

Outline of the judgment

The applicant’s forced sterilization was in violation of Article 3 (prohibition of inhuman and degrading treatment) and Article 8 (respect for private and family life). The Court condemns the Slovakian government in strong terms. Continue reading

S.H. and Others v Austria: margin of appreciation and IVF

In Austria, it is forbidden to use donated sperm or ova for in vitro fertilization (‘IVF’). Ovum donation is under all circumstances prohibited; sperm donation is only possible when the sperm is directly placed in the womb of a woman (in vivo artificial insemination). Two Austrian couples complained about this regulation; the first couple needs IVF treatment with use of donor sperm and the other couple needs IVF with use of a donor ovum to fulfill their wish for a child of which at least one of them is the genetic parent. In 2010, the First Section held in S.H. and Others v. Austria that the Austrian regulation violated Article 14 in conjunction with Article 8 of the Convention, with a vote of 6-1 regarding the first couple and 5-2 vote regarding the second couple. Stijn and I have both blogged about that Chamber judgment (see here and here).

The Grand Chamber reversed that judgment a few days ago. With a vote of 13 to 4, the Grand Chamber concludes that the restrictive Austrian assisted reproduction regulation is not contrary to the Convention. Quite frankly, I have difficulties writing this post. The case raises very complex issues, situated as it is within a highly contentious debate about the way the Court should adjudicate culturally or ethically sensitive issues. Recently, the Court has had to endure a barrage of critique for what is perceived as its usurpation of power from the Contracting States. The majority of the Grand Chamber goes to great lengths in this case to appease its critics and appear respectful of State sovereignty: ‘the Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating matters of artificial procreation’ (par 92). And: ‘The Court considers that concerns based on moral considerations or on social acceptability must be taken seriously in a sensitive domain like artificial procreation’ (par. 100). The stakes are high; a lot of pressure is put on the Court. In its third-party intervention, the Italian Government practically announces the apocalypse if ovum donation were allowed: ‘to call maternal filiation into question by splitting motherhood would lead to a weakening of the entire structure of society’ (par 73).

It is impossible to navigate this debate and discuss all the facets of the case satisfactorily in a blog post. I will limit my discussion to the Court’s use of the margin of appreciation- and consensus-arguments, and Austria’s reasons in support of its restrictive legislation as regards assisted reproduction. Continue reading

Trafficking in Persons and the European Court of Human Rights

This guest post was written by Dr. Roberta Avellino. Dr. Avellino studied Law at the University of Malta where she graduated as Doctor of Laws. She has moreover obtained a Master of Laws in International Law following research on trafficking in persons, security governance and State responsibility. She has recently published an article on the subject entitled ‘Trafficking in Persons: A Contemporary Threat to Human Dignity’ (please note that the file takes a while to open) in the first issue of a new law journal, the ELSA Malta Law Review. We are thankful to Dr. Avellino for her contribution to our blog and wish the European Law Students’ Association Malta all the best with their newly founded journal!


The European Convention on Human Rights makes no direct reference to the modern crime of trafficking in persons. However, Article 4 prohibits slavery, servitude and forced labour. But how should the parameters of servitude and the prohibition thereof be delineated? Is trafficking in persons included within the considerations of the Convention? The European Court of Human Rights (ECtHR) has attempted to clarify this issue through the case of Siliadin v France[1] and held that a number of international human rights treaties aimed at protecting human beings from slavery, servitude and forced or compulsory labour. In referring to the Parliamentary Assembly of the Council of Europe, the Court also officially recognized the unfortunate truth of modern day slavery despite the abolishment of this practice more than 150 years ago.[2]

On the 7th of January 2010, the European Court of Human Rights delivered what has been considered ‘a historic first judgment concerning cross border human trafficking in Europe’[3] in Rantsev v Cyprus and Russia[4] and unanimously found that trafficking in persons falls within the parameters of Article 4 of the Convention.

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Inter-American Commission praises ECtHR in a landmark decision on domestic violence

The Inter-American Commission on Human Rights released its keenly anticipated merits report in the case of Jessica Lenahan (Gonzales) v United States a few weeks ago.  This was the first time a domestic violence survivor filed an international legal claim against the U.S.[1] The case has been extensively commented on elsewhere (see for example this article in the Harvard Human Rights Journal and this post on IntLawGrrls), so my aim with this post is just to flag the decision and note the extensive references to the case law of the European Court of Human Rights therein.

The facts of the case are horrifying. Continue reading

R.R. v. Poland: health rights under Art. 8 ECHR

By Laurens Lavrysen*

As Alexandra correctly noted in her post, R.R. v. Poland is a very interesting judgment. The focus of this post will lie on the general health rights implications of this judgment, which exceed the specific context of reproductive health.

In the case of Tysiąc v. Poland (ECtHR 20 March 2007) the Court stated that “once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it.” The Court ruled that Poland had violated Art. 8 ECHR because there was no procedure to establish whether Mrs. Tysiąc could have access to a legal abortion on health grounds. She had a severe sight disability and there were serious reasons to believe that her sight would decrease even more if she were to give birth. As she was denied access to an abortion, she eventually became almost blind.

The case of R.R. is quite comparable: the applicant is a woman who had a right to have an abortion under domestic law (on the ground that her fetus was severely malformed) but she was prevented effective access to this right (because the Polish doctors and hospitals she contacted deliberately refused to do a conclusive genetic test before the legal time limit).

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R.R. v. Poland: of reproductive health, abortion and degrading treatment

The Court has released an important judgment in the area of reproductive health, R.R. v. Poland.  It is also a very interesting judgment, as it raises a complex set of issues connected to different fields of law. Our team had a lively debate about this case yesterday. It became clear that there are various ways of looking at the Court’s reasoning: gender, health rights and freedom of religion are all perspectives that can be brought to bear on this case. With this post I would like to put my first thoughts on paper. The focus will be on the Court’s reasoning under Article 3 (prohibition of inhuman or degrading treatment).

Facts
The facts of R.R. v. Poland make for sad reading. Continue reading

2010: year of “profound moral views”?

2010 was a turbulent year for the European Court of Human Rights. The Court has been under fire both for usurping too much power and for achieving too little. The first type of critique is made by conservatives who recycle the old idea that an international court has no legitimacy to judge the situation on the ground in individual states; this year vocally proclaimed in for, for example, the Netherlands (in Dutch) and Russia. The second type of critique – that the Court is doing too little – refers primarily to the huge backlog in cases. The Court is not managing its workload; therefore we saw such initiatives as the Interlaken Conference.[1]  

 To my mind, the year was characterized by an intense debate about the legal relevance/importance of an individual society’s moral values.  The abortion case of A, B and C v. Ireland is the most recent of a series of high-profile cases, all delivered in 2010 and all essentially revolving around the question to what extent the Strasbourg Court should take national morality into account when determining whether human rights violations have taken place in a certain state.  Apart from the abortion case, I’m thinking here of cases concerning sexual orientation (Schalk and Kopf v. Austria and Alekseyev v. Russia) and sex discrimination (Konstantin Markin v. Russia). What follows is a brief review and a critique of A, B and C v. Ireland. Continue reading

A Rose By Any Other Name?

Shakespeare suggested that the names of things do not matter, but only their substance. The applicants in Losonci Rose and Rose v. Switzerland disagree. So does the Court, and so do I.

The applicants in this case are a couple who wanted to retain their own names after marriage, rather than adopt a double-barreled surname for one of them. Complicating factor was that the man was Hungarian by birth. Their reasons for not wanting to change their names were the difficulties in changing names in Hungarian law and the fact that the second applicant, who held an important post in the federal administration, was well known under her maiden name. 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

Strasbourg Court shows itself sensitive to the plight of Afghan women

The status of Afghan women has been high up on the agenda of the international human rights community in the past few years. Today the European Court of Human Rights joined the chorus of the concerned. The Court rendered a judgment that recognizes the extremely problematic status of women’s rights in Afghanistan and will hopefully provide firm support to Afghan women seeking asylum from gender persecution.

In N. v. Sweden, the applicant is a forty year old Afghan woman who applied for asylum in Sweden in 2004. She entered Sweden with her husband, but a year later, in 2005, she notified the authorities that she had separated from her husband and that she wanted a divorce. She alleged that she would face a serious risk of ill-treatment, contrary to art. 3 of the Convention, if she were to be returned to Afghanistan, essentially because she had transgressed established gender norms by seeking a divorce from her husband and living with a Swedish man. She claimed that she had no social network left in Afghanistan and no male support, which she needed in order to survive there. The Court finds that the general information regarding women’s rights in Afghanistan is not enough on its own, to find a violation of the Convention if the applicant were returned, but that the applicant’s personal situation is such that “the applicant faces various cumulative risks of reprisals which fall under Article 3 of the Convention from her husband X, his family, her own family and from the Afghan society.” (par. 62)

This judgment is striking because of its extensive documentation of the human rights abuses women face in Afghanistan. Continue reading

Would a Niqab and Burqa ban pass the Strasbourg test?

By Lourdes Peroni, Saïla Ouald-Chaib and Stijn Smet

Whether it is a Burqa or a Niqab, what is at stake is a face-covering veil. This veil is increasingly becoming the subject of heated discussion within Europe. In France, a bill that aims to prohibit its wearing is the subject of a national debate. Also at the level of the European Union certain members of the European Parliament are calling for a general ban on the wearing of face-covering veils.

In this context, the Belgian Chamber of Representatives recently passed an amendment to its Penal Code prohibiting the wearing of clothes that “completely or largely cover the face” and thus became the first European country to introduce what is popularly referred to as the Burqa ban. Although the Chamber of Representatives already approved it with near unanimity (136 votes in favor, two abstentions), the law is not yet definitive as it requires approval by the Senate (which will only discuss the proposed bill after the upcoming federal elections). Despite the fact that the proposed new article of the Belgian Penal Code does not mention the words Burqa or Niqab, and is thus neutral on its face, the Parliamentary discussions clearly show that the mentioned face-covering veils were the intended target of the new provision. If passed by the Senate under its current form, the ban would apply in all public spaces, including streets, parks, shops, public transport, airports, banks, and, of course, public buildings. An exception is introduced for certain cases, including for festivities such as carnival, in which the wearing of face-covering clothing remains allowed. Whoever violates the new law risks a fine of around € 100 and/or a prison sentence of 1 to 7 days. Rationales put forward for the ban include ‘security reasons,’ ‘public order,’ and ‘the protection of the dignity of women and gender equality’.

In this post we would like to analyze the Belgian ‘Burqa ban’ from the angle of the jurisprudence of the European Court of Human Rights.

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