One-way ticket to Sudan: standard-setting, yet disconnection between reasoning and outcome in N.A. v. Switzerland?

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

On 30 May 2017, the European Court of Human Rights decided two cases regarding the expulsion of rejected asylum seekers by Switzerland to Sudan. In A.I. v. Switzerland, the Court held unanimously that there would be a violation of Articles 2 and 3 ECHR in case of implementation of the deportation order, whereas in N.A. v. Switzerland the Court, also unanimously, did not find a conditional violation of these provisions.

The judgments (only in French) deserve a blogpost for at least two reasons. First, the Court explicitly sets out criteria in order to assess the risk of ill-treatment of political opponents when returned to Sudan. Second, the legal reasoning in N.A. v. Switzerland seems to hold potential for improvement. This post does not aim to question the outcome in N.A.: even though many aspects of A.I. and N.A. run parallel, there are important factual differences that may justify finding a violation in one case but not in the other. It does take issue with the way this outcome is arrived at in N.A. v. Switzerland. Continue reading

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

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

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

Talpis v. Italy: Elements to Show An Article 14 Violation in Domestic Violence Cases

What are the elements necessary to support a finding of discrimination in domestic violence cases? In the recent case of Talpis v. Italy, two judges voted against an Article 14 violation. The dissenting opinions offer an opportunity to reflect on this and other broader questions that may be relevant for future cases. The questions flow from disagreement in the judgment over: whether the domestic authorities involved in the individual case were discriminatory towards the applicant as a woman and whether there were sufficient indications of failures to protect women in the Italian system.

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Osmanoğlu and Kocabaş v. Switzerland: A Swiss perspective

By Fabienne Bretscher, PhD Student at the University of Zurich, Visiting Researcher at the Erasmus School of Law Rotterdam

In a recent judgment, the ECtHR found that the refusal to grant Muslim students exemption from mandatory swimming classes in Swiss public schools did not amount to a violation of the right to freedom of religion guaranteed by Article 9 ECHR. In its decision, the ECtHR emphasised the important role of public schools in the process of social integration into local customs and way of life. After giving an overview of the facts of the case as well as the ECtHR’s judgment, the present post sheds some light on the background of the issue of Muslim students’ participation in mandatory swimming classes in Switzerland and argues that, with its decision, the ECtHR is (again) reinforcing and legitimising intolerance against Muslims. Continue reading

European Court of Justice keeps the door to religious discrimination in the private workplace opened. The European Court of Human Rights could close it.

By Saïla Ouald-Chaib and Valeska David

On 14 March 2017, the European Court of Justice issued two judgments, in the cases of Achbita and Bougnaoui concerning the manifestation of beliefs in the private workplace. From the perspective of inclusion and human rights law, the judgments are very disappointing. They basically legitimize and even provide a recipe for discrimination of employees on the basis of their religious or other convictions. Continue reading

Pihl v. Sweden: non-profit blog operator is not liable for defamatory users’ comments in case of prompt removal upon notice

by Dirk Voorhoof

In its decision of 9 March 2017 in Rolf Anders Daniel Pihl v. Sweden, the ECtHR has clarified the limited liability of operators of websites or online platforms containing defamatory user-generated content. The Court’s decision is also to be situated in the current discussion on how to  prevent or react on  “fake news”, and the policy to involve online platforms in terms of liability for posting such messages. Although the Court’s ruling expresses concerns about imposing liability on internet intermediaries that would amount to requiring excessive and impractical forethought capable of undermining the right to impart information via internet, the decision in Pihl v. Sweden itself guarantees only minimal protection for the rights of internet intermediaries and users’ rights.

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Protest as you like it: time, place & manner restrictions under scrutiny in Lashmankin v. Russia

Guest post by Daniel Simons, Legal Officer for Freedom of Assembly, Expression and Information, Open Society Justice Initiative (New York)

The unanimous Chamber judgment in Lashmankin and Others v. Russia, rendered on February 7th, is an important new star in the Article 11 firmament. It clarifies the law peaceful assemblies in a number of respects, in particular the degree to which authorities may impose time, place and manner restrictions on individual protests, or place blanket bans on demonstrations in specific locations.

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