Cases

The discovery in flagrante delicto, the Kafkaesque fate of a Supreme judge and the Turkish Constitutional Court: The Alparslan Altan case in Strasbourg

Guest Blogger Alparslan Altan v. Turkey, Right to Liberty and Security

By Emre Turkut, PhD researcher at Ghent University

On 16 April 2019, the Second Section Chamber of the European Court of Human Rights (the ECtHR) delivered a long-awaited decision in the case of Alparslan Altan v. Turkey, an application lodged by a former judge serving on the Turkish Constitutional Court (TCC) to challenge his arbitrary placement in pre-trial detention in the aftermath of the 15 July 2016 attempted coup. The application was pending in Strasbourg since 16 January 2017. In its judgment, the ECtHR found that the applicant’s initial pre-trial detention was not lawful within the meaning of Article 5/1 of the European Convention on Human Rights (ECHR) and was not based on reasonable suspicion that he had committed an offence under Article 5/1 (c) ECHR. Continue reading →

Suspicionless Stop and Search Powers at the Border and Article 8: Beghal v United Kingdom

Guest Blogger Beghal v United Kingdom, Counter-terrorism, Right to Private Life

By John Ip, University of Auckland Faculty of Law

On 28 February 2019, the First Section Chamber of the European Court of Human Rights (ECtHR) delivered its decision in Beghal v United Kingdom, a de facto appeal from a 2015 UK Supreme Court decision concerning the question of whether Schedule 7 to the Terrorism Act 2000 was incompatible with various rights under the European Convention on Human Rights. The ECtHR concluded unanimously that the applicant’s right to respect for private and family life under Article 8 had been infringed. Continue reading →

Vulnerability, Rape, and Coercive Obligations: A Discussion of E.B v. Romania

Corina Heri E.B. v. Romania, Sexual Violence, Vulnerability

By Corina Heri, postdoctoral researcher at the University of Amsterdam

Three years ago, on this blog, Lourdes Peroni wrote about the failings of the domestic response to the alleged rape of an 11-year-old girl in M.G.C. v. Romania. Today, the ECtHR is continuing to apply ‘coercive obligations’ regarding rape and sexual violence, as crystallized by that judgment. On 19 March 2019, it issued the latest in a line of cases concerning failures to protect victims of sexual violence and to put in place a system that allows for the effective punishment and prosecution of sexual offences. In this specific context, the Court has issued some of its arguably most victim-oriented and context-sensitive jurisprudence to date, relying heavily on the vulnerability of the victims. Continue reading →

H.A. and others v. Greece – restrictive acknowledgement of irregular migrant vulnerability

Guest Blogger Children's Rights, H.A. and others v. Greece, Migration, Vulnerability

By Elina Todorov, PhD Candidate, Tampere University (Finland)

On 28. February 2019 the European Court of Human Rights (ECtHR) delivered a judgement concerning unaccompanied minors in an irregular situation, namely H.A. and others v. Greece.  In H.A. the Court found several violations of the Convention, in particular a partial violation of Article 3 regarding the living conditions of the applicants (prohibition of inhuman or degrading treatment), a violation of Article 13 (right to an effective remedy, taken together with Article 3) and also violations of Article 5 § 1 and 5 § 4 (right to liberty and security, right to a speedy decision on the lawfulness of a detention measure). The case stands well in line with the Court’s previous case law concerning irregular migration. In H.A., the Court regarded that the authorities’ conduct caused a situation in which the national authorities had not succeeded in protecting the applicants who were unaccompanied foreign minors in an irregular situation. In line with its established case law, the Court recognized that minors – or in other words children – in an irregular situation are to be regarded as a vulnerable group mainly due to the fact that they are children (rather than because they are irregular migrants). However, as will be argued in this blog post, the Court thereby failed to adequately recognize the vulnerability resulting from the applicants’ irregular residence status. Continue reading →

The Right to Life and the Scope of Control: Fernandes de Oliveira v Portugal

Guest Blogger Fernandes de Oliveira v. Portugal, Psychiatric care, Right to Life, Suicide

By Peter Bartlett (Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law, Institute of Mental Health and School of Law, University of Nottingham)

On its face, this case considers the duty of the State to protect the lives of voluntary (or informal) psychiatric patients under Article 2 of the ECHR (right to life).  Below the surface, the case raises a number of broader questions about the scope of the positive obligations under Article 2; how they relate to the autonomy-related rights in Articles 3 (prohibition of torture, inhuman or degrading treatment), 5 (right to liberty) and 8 (right to privacy and family life); the fact-finding exercises and evidential approach of the ECtHR; and the relationship between the ECHR jurisprudence and other international law, most notably the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Continue reading →

Rooman v. Belgium: when linguistic problems lead to a violation of core human rights

Guest Blogger linguistic, Prohibition of Degrading Treatment, Rooman v. Belgium

Marie Bourguignon is a PhD researcher at the Leuven Centre for Public Law, Institute for Human Rights. She specializes in linguistic rights and access to law in multilingual Belgium.

On 31 January 2019, the Grand Chamber of the European Court of Human Rights convicted Belgium for inhuman or degrading treatment as well as for violating the right to liberty and security. The case concerns Mr. Rooman, a convicted sex offender suffering from mental disorders and sentenced to prison, who could not have proper access to psychiatric and psychologic care in his own language. Although the Court was right to find human rights violations in casu, it should not have based its reasoning on the official status of the language spoken by the applicant. Continue reading →

Yeshtla v. the Netherlands: a missed opportunity to reflect on the discriminatory effects of States’ social policy choices

Guest Blogger Poverty, Prohibition of Discrimination, Right to Respect for Family Life, Vulnerability, Yeshtla v. the Netherlands

By Fulvia Staiano, Adjunct Professor of International Law and European Union Law (Giustino Fortunato University)

On 15 January 2019, the European Court of Human Rights (ECtHR) delivered an inadmissibility decision on the case of Emabet Yeshtla v. the Netherlands. In this case, the ECtHR was asked to determine whether the withdrawal of the applicant’s housing benefits (motivated by the fact that she cohabited with an unlawfully resident son) had breached her right to respect for private and family life under Art. 8 of the European Convention on Human Rights (ECHR), alone and in conjunction with the prohibition of discrimination under Art. 14 ECHR. This case raised interesting questions on the potential impact of social assistance and welfare policies on recipients’ family life, as well as on the discriminatory effects of domestic norms that use social benefits as a tool to discourage irregular residence. Regrettably, the ECtHR dismissed this case without a thorough consideration of such questions. Continue reading →