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.
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
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
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.
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.
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.
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.