F.J.M. v. the United Kingdom: Judicial review of the proportionality of an eviction in private rental housing

By Juan Carlos Benito Sánchez, PhD Researcher (FRESH) at F.R.S.-FNRS and UCLouvain (Belgium)

In its decision in F.J.M. v. the United Kingdom, delivered on 29 November 2018, the European Court of Human Rights (First Section) declared inadmissible a complaint of a violation of Articles 6 and 8 of the Convention. The applicant had been evicted following a possession order made by a court, but was not allowed to raise a defence on proportionality grounds. She claimed that the possession order was disproportionate in her case and that she should have been able to require the court to make a proportionality assessment before granting possession and evicting her. This case concerns no-fault evictions in the UK, also known as “Article 21 evictions.” Section 21 of the Housing Act 1988 allows landlords to evict tenants who are not at fault without the need to provide any reasons, as long as they notify the tenant in writing at least two months in advance. Continue reading

Loneliness that is good for you: the European Court addresses the right to marry of people with disabilities

By Constantin Cojocariu, human rights lawyer specialised in disability and transgender rights

On 25 October 2018, the European Court of Human Rights issued its first substantive ruling under Article 12 regarding people placed under guardianship.[i] Delecolle v. France involved an elderly man who was not allowed to marry a long-time friend under the pretext that he was not able to understand the financial implications of that decision. The Court held that the right to marry and found a family under Article 12 benefited only those possessing full legal capacity. It did not engage with the justifications advanced for depriving the applicant of his capacity to marry, focusing instead on the quality of the national procedures. Worryingly, the Court endorsed reasoning that was impregnated with prejudice against and paternalism towards the elderly and the disabled. The Court has lately proven increasingly willing to consider the implications of the widely ratified Convention on Human Rights of Persons with Disabilities (CRPD) for its jurisprudence. Several judgments have broken new ground, such as Çam v. Turkey on inclusive education and Guberina v. Croatia on accessibility and reasonable accommodation. With the Delecolle judgment, the Court reverts to an uncertain trajectory in the area of disability, characterised by a palpable inability to develop, and apply consistently, a coherent set of principles on difficult subjects such as legal capacity, accessibility, independent living or detention. Continue reading

Kaboglu and Oran v. Turkey: protecting the private life of scholars, yet failing to recognize the academic freedom dimension at issue

By Sophia Sideridou (intern at the Human Rights Centre of Ghent University)

On 30 October 2018, the European Court of Human Rights held unanimously that, in the case of Kaboglu and Oran v. Turkey, there has been a violation of Article 8 of the European Convention on Human Rights. The applicants were two university professors specializing in the protection of human rights and members of the Advisory Council on Human Rights. After the release of their report addressed to the government concerning questions of minority and cultural rights in Turkey, they faced harsh criticism through newspaper articles containing threats and hate speech against them. According to the ECtHR, the domestic courts of Turkey had failed to strike a fair balance between the applicants’ right to respect for their private life (Article 8) and the freedom of the press (Article 10). In its judgment , the Court identified the failure of the domestic courts to give due weight to the applicants’ Article 8 rights, but failed to recognize the negative impact that the articles in question as well had on their freedom of expression and academic freedom. Continue reading

Academic freedom dimension overlooked in the case of Tuskia and Others v. Georgia

By Joanne Fish (University of Glasgow)

In Tuskia and Others v. Georgia (11 October 2018) the European Court of Human Rights ruled on a case concerning a protest against university reforms by a group of academics at Tbilisi State University. The applicants are nine professors, six of which were members of the Grand Academic Council, the highest representative body of the University until the Council was abolished in June 2005. The Strasbourg court ruled that their removal by the police from the rector’s office had constituted a justified interference with their right to freedom of assembly. In doing so the Court arguably did not take into account a lot of the context of the case, causing the academic freedom dimensions of the case to be significantly downplayed to the extent that it reads akin to an ordinary workplace dispute. Continue reading

E.S. v. Austria: Freedom of Expression versus Religious Feelings, the Sequel

By Stijn Smet, Assistant Professor of Constitutional Law at Hasselt University

In a recent judgment that has made headlines around the world, the ECtHR rules – not for the first time – that Austria can legitimately curb free speech to protect the religious feelings of believers. That the believers in E.S. v. Austria happened to be Muslims surely added to the international attention given to the judgment, especially the opportunistic outrage in certain outlets on the other side of the Atlantic.[1]

When I first read E.S. v. Austria, I was dumbfounded; struck by how contrived and nonsensical some of the ECtHR’s reasoning is. Then, when I read some scholarly comments on the judgment, I was puzzled; struck by how surprised some commentators were about other aspects of the Court’s reasoning. In my reading of E.S. v. Austria, the Court does not say much (or anything at all) it has not said before. Still, it’s remarkable how fervently the Court clings to a line of reasoning many had hoped to see abandoned by now. At the end of this comment, I will venture a guess as to why the Court found no violation of freedom of expression in E.S. v. Austria. Until then, I will explain why I was dumbfounded by the Court’s reasoning and puzzled by some of the commentary thereon. Continue reading

Basra v. Belgium: a structural problem struck from the list

By Marjan Claes (NANSEN), Charlotte Coenen (NANSEN), Ellen Desmet (UGent), Sylvie Saroléa (UCL)

On 13 September 2018, the European Court of Human Rights struck the application of Basra v. Belgium out of its list. Mr. Basra argued not having benefited from an effective remedy in the sense of article 13 ECHR, with respect to his arguable claim of being subjected to treatment prohibited by Article 3 ECHR in case of return to Pakistan.

After efforts to reach a friendly settlement had failed, the Belgian Government made a unilateral declaration in order to solve the issue, and invited the Court to struck the case from the list. The Court took up this invitation on the basis of Article 37 (1) (c) ECHR, which allows the Court to strike out an application where, for any reason established by the Court, it is no longer justified to continue its examination.

During this procedure, a third party intervention was submitted to the Court by NANSEN – the Belgian Refugee Council, EDEM (Equipe droits européens et migrations) from the UCLouvain, the Equality Law Clinic of the Université libre de Bruxelles and the Human Rights Centre of Ghent University. Continue reading

Is the European Court of Human Rights capable of changing legal systems? Judgment in Aliyev v Azerbaijan.

By Kanstantsin Dzehtsiarou (University of Liverpool)

In spring 2014, shocking news came from Azerbaijan. Leading human rights defenders including Mr Intigam Aliyev were arrested and charged with various financial crimes. It was clear that these charges were just a cover-up for the silencing of vocal critics of the government and for the destruction of an effective human rights defence in the country. It is not surprising that those arrested and charged brought their cases to the European Court of Human Rights (ECtHR or Court). In September 2018, more than two years after Mr Aliyev was in fact released, the Court has delivered its judgment in his case. There are plenty of reasons to praise this judgment; the Court unanimously found plenty of violations of the Convention including violations of Articles 3, 5, 8 and 18. Under Article 18, the Court found that the true purpose of the arrest was not punishment for the crimes committed by the applicant but retaliation for being a human rights defender. As it is often the case, this judgment came slightly too late because the applicant has already been released from prison but it helpfully reinforces a line of judgments showing that Azerbaijani authorities use criminal law to silence its opponents. This blogpost will however focus on a more problematic aspect of this judgment, namely the Court’s attempts to improve the legal system in Azerbaijan by defining general measures that must be implemented to effectuate this judgment. Continue reading