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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Selmani and Ors v. FYROM: influential judgment on press galleries and parliamentary reporting

Guest post by Jonathan McCully, Legal officer at the Media Legal Defence Initiative, which supported the case, and Editor of Columbia Global Freedom of Expression

On 9 February 2017, the European Court of Human Rights handed down an important judgment in Selmani and Ors v. The Former Yugoslav Republic of Macedonia (Application No. 67259/14), a case that considers the forcible removal of journalists from a parliamentary press gallery. The Court’s finding that the removal was a violation of the right to freedom of expression is a valuable pronouncement in a global context where a number of states have used similar measures to suppress reporting on parliamentary affairs.

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The Unbreakable Vow: Marital Captivity in Strasbourg

By Corina Heri, Visiting Scholar at Ghent University           

It has been the ECtHR’s constant case-law that Article 12 ECHR, while enshrining the right to marry an opposite-sex spouse, does not protect a right to divorce. The fact that the Court has resolutely held on to that idea despite the modern-day legalization of divorce in the Council of Europe Member States has been brought to the fore once again with the Fourth Section’s judgment in Babiarz v. Poland, issued on 10 January 2017. That case, brought under Articles 8 and 12 ECHR, concerned the applicant’s inability to obtain a divorce from his wife without her consent, as a result of which he could not marry the mother of his child. In short, Polish law gave higher priority to the legal fiction of an ongoing relationship between the spouses than to the de facto relationship between the applicant and his new partner, which had been ongoing for 11 years at the time of the Court’s judgment. The majority, in its judgment, found no violation of the ECHR. The present post will summarize the salient arguments made by the two dissenters, Judge Sajó and Judge Pinto de Albuquerque, and add some critiques of its own.

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J. and Others v. Austria and the Strengthening of States’ Obligation to Identify Victims of Human Trafficking

Guest post by Dr. Vladislava Stoyanova, Lecturer and Postdoctoral Fellow, Faculty of Law, Lund University, Sweden (*)

J. and Others v. Austria delivered by the Strasbourg Court on 17 January 2017 adds to the slowly developing body of case law under Article 4 of the ECHR (the right not to be subjected to slavery, servitude and forced labour). For an overview of relevant judgments see my previous post here.[1] Although the Court did not find that Austria was in breach of its procedural obligation under Article 4 (the obligation to investigate), I would like to draw attention to some important pronouncements in the judgments that might hold essential potential in relation to the obligation upon states to identify victims of human trafficking. I would like to also draw attention to the poor engagement by the Court with the definitional challenges raised by Article 4, a deficiency that can be traced back to Rantsev v. Cyprus and Russia.[2]

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Improving neighborhoods by preventing welfare recipients to take up residence: The Grand Chamber hearing in Garib v. the Netherlands

By Valeska David

On 25 January 2017, the Grand Chamber of the European Court of Human Rights (ECtHR) heard oral pleadings in Garib v. the Netherlands. The case concerns the refusal of a housing permit to a single mother living on social welfare on account of legislation imposing minimum income requirements on persons wishing to reside in a number of inner-city areas of Rotterdam. The Chamber judgment issued on 23 February 2016, which was discussed in a previous blogpost, held that there was no violation of Article 2 of Protocol No. 4 (right to choose one’s residence). As the case was referred to the Grand Chamber, the Human Rights Centre of Ghent University and the Equality Law Clinic of the Université Libre de Bruxelles submitted a joint third party intervention. In this post, I shall briefly recount the issues addressed in our intervention to subsequently provide an overview of the questions discussed during the hearing before the Grand Chamber.

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Trivializing anti-personnel mines and ignoring childness: Sarıhan v Turkey

In an astonishingly laconic judgment (available only in French), the Court found no violation in the case of a 12-year old who was wounded by an anti-personnel mine while herding his sheep.

Facts and Ruling

The facts in this case date back to the summer of 2003, in a Kurdish village in East Turkey, not far from the borders with Armenia and Iran. 12-year old Erkan Sarıhan was herding his sheep in a minefield, situated at 150 metres from his village. He was playing with an anti-personnel mine when it exploded, causing severe injuries to his face, hands and chest. The minefield, which belonged to an army post situated 200 metres further, was surrounded with barbed wire and warning signs. There was also a watch post manned by two soldiers, who however did not have a view of the entire terrain and as a result had not seen the child enter. The inquiry into the accident showed that through the village mayor, the inhabitants of the village had regularly been warned about the dangers of the minefield. The report concluded that the child’s parents were responsible for the accident. It also held that it was necessary, in order to prevent similar accidents, to move the watch post so that it would overview the entire terrain, and to install specific warning signs for illiterate persons.

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V.M. and others v. Belgium: The tragic story of yet another “disappeared case”

Guest post by Moritz Baumgärtel, lecturer and researcher at the Department of European and International Public Law at Tilburg University. Moritz recently defended his PhD at the Université libre de Bruxelles. His project was a part of the IAP research network “The Global Challenge of Human Rights Integration: Towards a Users’ Perspective”.

On 17 November 2016, the Grand Chamber of the European Court of Human Rights decided to strike off its list of cases the application in V.M. and others v. Belgium. The case concerned the reception conditions and the exposure to a risk of inhumane and degrading treatment of a Roma family in the context of a “Dublin transfer” from Belgium to France. The matter was referred to the Grand Chamber following a judgment of the Second Section on 7 July 2015, which had found violations of articles 3 and 13 of the ECHR. In striking out the application because the lawyer failed to maintain contact with the clients, the Grand Chamber added yet another chapter to the already lengthy volume on “disappeared cases”. The Court’s decision raises serious questions regarding the effectiveness of its remedies and the problems it poses for strategically minded lawyers in the migration domain.

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