Reminder: Conference “The ECHR Turns 70 – Taking Stock, Thinking Forward”

In these disturbing times for all of us, we at the Ghent University’s Human Rights Centre are really looking forward to seeing all of you, the ECHR community, again once all of this is over. On 18-20 November 2020, we’re organizing a conference to celebrate the 70th anniversary of the European Convention on Human Rights, which was opened for signature in Rome on 4 November 1950. This post serves as a reminder that the deadline for submission of abstracts is 15 April 2020. For more information on how to do so, please visit our conference website. Continue reading

The Future of the Rule of Law in Sports Law: Ali Riza and Others v. Turkey

This blogpost was written by Jernej Letnar Černič who is Associate Professor of Human Rights and Constitutional Law at the Faculty of Government and European Studies of the New University (Ljubljana/Kranj, Slovenia). He is co-author of the forthcoming book on “The Impact of European Institutions on the Rule of Law and Democracy: Slovenia and Beyond” (Oxford, Hart/Bloomsbury, 2020).

Are domestic and international sports arbitration bodies obliged to follow the rule of law and ensure at least basic procedural safeguards? Fair trial guarantees have been, for quite some time, a hot potato in (international) sports arbitration. Athletes have been, in the past, mostly unsuccessful when arguing for a violation of Article 6 (1) of the ECHR before the ECtHR (see for example Bakker v. Switzerland (26 September 2019, admissibility decision); Mutu and Pechstein v. Switzerland, 2 October 2018). Nonetheless, the Court already recognized the right to public hearings before CAS (Mutu and Pechstein v. Switzerland, para. 183). Therefore, it appears that a consensus has been increasing for fair trial guarantees to be introduced and/or strengthened both at the domestic and international levels. The Second Section of the European Court of Human Rights has on 28 January 2020 in its seminal judgement in the case of Ali Riza and Others v. Turkey confirmed the importance that sport arbitration bodies uphold basic fair trial guarantees in compulsory sport arbitration such as the right to an independent and impartial tribunal by introducing strict normative safeguards against conflicts of interests.

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Magyar Kétfarkú Kutya Párt (MKKP) v. Hungary: Technology meets freedom of expression and the rule of law in an electoral context

By Dr. Petra Gyöngyi (Postdoctoral fellow at the University of Oslo, member of Judges under Stress – The Breaking Point of Judicial Institutions)

On January 20, the Grand Chamber of the European Court of Human Rights (ECtHR) rendered a final decision in the case of Magyar Kétfarkú Kutya Párt (MKKP) v Hungary. The case concerned freedom of expression as guaranteed by Article 10 ECHR in an election context – in particular the use of a mobile application made available by a political party (MKKP) where voters could share an anonymous photo of their invalid paper ballots alongside political messages as a sign of protest against a national referendum. The National Election Committee imposed a fine on MKKP, giving rise to the question of whether there has been a violation of the political party’s freedom of expression. The Grand Chamber held that the legal rules that constituted the basis for imposing a fine on MKKP were insufficiently foreseeable for the purposes of Article 10(2), did not rule out arbitrariness in its application and did not enable MKKP to regulate its conduct. As such, the Court held that there has been a violation of Article 10 of the Convention.

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Cyberviolence, domestic abuse and lack of a gender-sensitive approach – Reflections on Buturuga versus Romania

By Fleur van Leeuwen (Boğaziçi University)

‘The legal system is designed to protect men from the superior power of the state but not to protect women or children from the superior power of men.’ It is a quote from Harvard psychiatrist Judith Herman in an article on domestic violence in the Guardian last weekend. The androcentric nature of international human rights law has been well documented.[1] Gender mainstreaming was championed in the 1990s as the approach to rectify this deficiency. But although some steps were taken – i.e. domestic abuse is no longer considered to be an issue that falls outside the realm of human rights – the jurisprudence of the European Court of Human Rights (the Court) on domestic violence shows that the required transformation of the system is not yet in sight.[2]

The case of Buturuga versus Romania of the Court of last February offers another classic example in this respect. Although the comments of the Court on cyber violence as an aspect of domestic abuse are noteworthy – the judgment at large is not. The most significant conclusion to be drawn from Buturuga versus Romania is that gender mainstreaming – or (consistently) applying a gender-sensitive approach – remains ostensibly still too difficult a task for the Court. Continue reading

Bulk retention of private-sector subscriber data for governmental purposes does not violate the Convention: Breyer v. Germany

Judith Vermeulen is a doctoral researcher and a member of the Law & Technology research group, the Human Rights Centre and PIXLES at Ghent University.

On January 30, 2020, in the case of Breyer v. Germany, the European Court of Human Rights ruled by six votes to one that the – legally required – indiscriminate storage of subscriber information by telecommunication service providers does not violate Article 8 of the European Convention on Human Rights. Amongst other things, the Court found that the interference at hand was rather limited in nature, thereby conveniently invoking Court of Justice jurisprudence which suited its point of view this time. Contrary to what judge Ranzoni argued in his dissenting opinion, the Court in Strasbourg was however not wrong in reaching this conclusion. The dissenter’s criticism regarding the insufficiency of the safeguards circumscribing the measure, on the other hand, was not without reasons. Continue reading

Who can represent a child (with disabilities) before the ECtHR? Locus Standi requirements and the issue of curator ad litem in L.R. v. North Macedonia

Dr. Gamze Erdem Türkelli is a Post-Doctoral Fellow Fundamental Research of Research Foundation (FWO) Flanders (File Number 12Q1719N) at the Law and Development Research Group, University of Antwerp Faculty of Law.

The NGO Helsinki Committee for Human Rights in Skopje (HCHR) brought a case before the ECtHR on behalf of L.R., an eight-year-old child with moderate mental disabilities, severe physical disabilities (cerebral palsy) and a speech impediment. L.R. had been in the care of state-run institutions since he was three months old. The NGO alleged that L.R. had suffered from ill-treatment and inadequate care in violation of Art. 3 of the European Convention. In 2013, North Macedonia’s Ombudsman visited a state-run institute and found L.R. tied to his bed, which subsequently gave rise to the NGO’s interest in his case. The Strasbourg Court unanimously held that there had been a violation of Art. 3 as L.R. had been placed in an institute that could not provide him with adequate or requisite care for his needs and had suffered inhuman and degrading treatment (L.R. v. North Macedonia, §95).This contribution does not focus on the substance of the case but addresses rather a procedural issue: the issue of the representation of a minor who is in a vulnerable situation before the European Court of Human Rights (ECtHR), raised by Judge Wojtyczek in his Partly Dissenting Opinion the case. Continue reading

Push backs of “badly behaving” migrants at Spanish border are not collective expulsions (but might still be illegal refoulements)

By Ruben Wissing (Ghent University)

On 13 February, the Grand Chamber rendered a long awaited judgment, meandering over more than one hundred pages, in the N.D. and N.T case on the push-back practices against migrants at the Moroccan-Spanish border fence surrounding the city of Melilla – the so-called devoluciones en caliente or ‘hot returns’ by the Spanish border police.  The Court did not qualify them as collective expulsions, thus acquitting Spain of having violated Art. 4 of Protocol No. 4. However, the specific circumstances of the case, as well as the absence of an examination of the principle of non-refoulement, have been ultimately decisive for the outcome of this case, thus restricting the extent to which the Court’s findings can be generalised to similar practices at the EU external borders. Continue reading

Tell me more, tell me more: the obligation for national courts to reason their refusals to refer to the CJEU in Sanofi Pasteur.

By Jasper Krommendijk (Radboud University, the Netherlands)

On 13 February 2020, the ECtHR found for the fourth time ever a violation of Article 6(1) ECHR for a failure of the highest national court to give proper reasons for its refusal to refer preliminary questions to the Court of Justice of the EU (CJEU) in Sanofi Pasteur. In 2014 and 2015, the ECtHR already determined a breach for a similar omission of the Italian Court of Cassation in Dhahbi and Schipani, while the Lithuanian Supreme Administrative Court was given a rap over the knuckles in 2019 in Baltic Master. This time it was the French Court of Cassation who took the blame in a claim for damages for bodily harm resulting from vaccination against hepatitis B. The company Sanofi Pasteur was found liable by lower French courts and appealed to the Court of Cassation. It unsuccessfully requested the Court to refer questions about the Product Liability Directive 85/374 and, more specifically, the obligation for the victim to prove the damage, defect and causal relationship between defect and damage. The Court dismissed the appeal whereby it explicitly noted that it did so without a need to refer. In this comment I will argue that this judgment shows once again the unpredictability and inconsistency in the case law of the ECtHR. What is needed is a Grand Chamber judgment as well as guidance from the CJEU to tell us more about the exact requirements for national courts. Continue reading

A picture of a same-sex kiss on Facebook wreaks havoc: Beizaras and Levickas v. Lithuania

Ingrida Milkaite is a PhD researcher in the research group Law & Technology at Ghent University, Belgium. She is working on the research project ‘A children’s rights perspective on privacy and data protection in the digital age’ (Ghent University, Special Research Fund) and is a member of the Human Rights Centre at the Faculty of Law and Criminology at Ghent University and PIXLES (Privacy, Information Exchange, Law Enforcement and Surveillance).

Two young men publicly posted a photograph of themselves kissing on Facebook. The post ‘went viral’ and attracted around 800 comments, most of which were hateful. Some of the comments featured suggestions to burn, exterminate, hang, beat, castrate, and kill the two men as well as gay people in general. The national authorities, while acknowledging that some comments were ‘unethical’, refused to launch a pre-trial investigation for incitement to hatred and violence against homosexuals. They considered that the couple’s ‘eccentric behaviour’ had been provocative and that launching an investigation in this case would be a ‘waste of time and resources’. The judgement in the case of Beizaras and Levickas v. Lithuania (Application no. 41288/15) was published on 14 January 2020. The ECtHR found a violation of Article 14 ECHR in conjunction with Article 8 ECHR, as well as a violation of Article 13 ECHR. Continue reading

The New Trial: Kafkaesque Punishment for Cooperation with the ECtHR

By Prof Kanstantsin Dzehtsiarou (University of Liverpool), Editor-in-Chief of the European Convention on Human Rights Law Review

It has been discussed on various levels that weak enforcement of the ECtHR judgments is a major drawback of the whole system. The lack of political will of the governments of the Contracting Parties to the Convention to engage with the ECtHR and the Committee of Ministers is often deemed to be one of the key reasons for slow enforcement of judgments and limited impact of the ECtHR on the standards of human rights protection in Europe. One of the ways to ensure quick embeddedness of the Convention is to resort to friendly settlements where the state accepts the responsibility for an obvious violation and pays appropriate compensation. The Committee of Ministers supervises execution of these friendly settlements although not always to the maximum effect. Recently the Court has introduced a new mandatory period during the procedure in Strasbourg during which the parties should consider a friendly settlement. Apparently, Ukraine is the only Contracting Party to the Convention which opted out of this procedure for the reasons discussed below. Friendly settlement is a very useful tool especially in cases of repetitive routine violations. This blogpost will try to convey two key messages. First, that national politics can put a halt on effective implementation on human rights even through preventing friendly settlements. The ability of national politics to affect human rights is hardly an original point but the story that is happening now in Ukraine gave this point a new twist. Second, that the Council of Europe has responsibility to react when the reputation of the Court, its judges and decisions are undermined. Continue reading

Poll: Best and Worst ECtHR Judgment of 2019

Dear readers,

As the Grand Chamber made clear in the (in)famous Lautsi case, “the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation”. Exercising our discretion in this respect, we hereby decide to perpetuate our tradition of celebrating the start of the New Year with the launch of our annual poll for the best and worst ECtHR judgment of the preceding year.

Where did the Strasbourg Court in 2019 seize the opportunity to truly act as a beacon of hope to victims of human rights violations across Europe? Conversely, where did the Court fail to provide robust human rights protection? We would like to warmly encourage you, our readers, to participate in answering these questions in the 2019 edition of our vote. Continue reading

Call for papers: Conference “The ECHR Turns 70 – Taking Stock, Thinking Forward”

The Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights (ECHR), was opened for signature in Rome on 4 November 1950. The Convention will thus be 70 next autumn. Ghent University’s Human Rights Centre wishes to take the opportunity of this anniversary to take stock of the history of the Convention system and to think about its future during an international conference.

The conference will take place in Ghent (Belgium) on 18-20 November 2020. More information can be found in the call for papers below (or download the PDF version with clickable links from the conference website, which will be regularly updated).

During the conference, we will also be present in a Strasbourg Observers live format, allowing scholars to critically discuss single ECtHR judgments in the best Strasbourg Observers tradition. We hope to meet many of our readers and contributors there! Continue reading

Dutch Supreme Court confirms: Articles 2 and 8 ECHR require a reduction of greenhouse gas emissions of 25% by 2020

By Dr. Ingrid Leijten, Assistant Professor at the Department of Constitutional and Administrative Law at Leiden University

On December 20th of last year, the Dutch Supreme Court ruled in the case of Urgenda v. de Staat der Nederlanden, confirming the finding of the Court of Appeal that the State violates articles 2 and 8 ECHR if it does not reduce greenhouse gas emissions by 25% in 2020. Seconds after the live-streamed presentation of the summary of the judgment, online media in the Netherlands and beyond reported about this groundbreaking judgment: for the first time, worldwide, a court in a final judgment held a State accountable for not reaching certain climate goals – on the basis of human rights. The judgments of the District Court (2015) and the Court of Appeal (2018) had also received ample attention; their conclusions and argumentation have been both celebrated and criticized, and I will not try to summarize these discussions here. Neither will I provide a thorough analysis of the Supreme Court judgment in light of the case law of the ECtHR. The reason for this is that the ‘general interest character’ of Urgenda obstructs a straightforward comparison. Instead, I want to highlight what is interesting – as well as convincing – about the way the Supreme Court addresses the issue as a matter of human rights. I argue that the judgment provides a promising route, at least for some other climate cases, although it also raises questions about the role of human rights and the effectiveness of rights based climate litigation. Continue reading

‘Peaceful assembly’ and the question of applicability of Article 11

Beril Önder: PhD Candidate, University of Strasbourg (Institut de Recherches Carré de Malberg) and Ghent University (Human Rights Centre)

The case of Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia[1] concerned the conviction of two men for organising “mass disorder” in a political rally at Bolotnaya Square in Moscow on 6 May 2012. The rally was held to protest against the alleged ‘abuses and falsifications’ in the elections to the State Duma and the presidential elections. This political rally has been at the centre of several earlier cases dealt with by the European Court of Human Rights (ECtHR), such as Frumkin v. Russia,   Yaroslav Belousov v. Russia, Barabanov. Russia, Polikhovich v. Russia  and Stepan Zimin v. Russia. While, the previously examined cases had been brought by activists convicted of participating in the mass disorder at Bolotnaya Square, the applicants in the present case had been convicted of organising that mass disorder. Continue reading

Abdyusheva and Others v. Russia: a Sadly Missed Opportunity

By Valérie Junod and Olivier Simon

On November 26. 2019, the ECtHR issued a 6 to 1 judgment finding that Russia had not breached the right of the complainants when it denied them access to methadone and buprenorphine (these two medicines are hereafter abbreviated to M/B) for treating their duly diagnosed opioid dependence syndrome (ODS).

Out of the three applicants, only the complaint of Mrs. Abdyusheva was analyzed in full. Since the other two were no longer consuming opioids and were no longer in active treatment; the Court declared their complaint inadmissible, disregarding their risk to relapse in the future.[1] Continue reading

The Grand Chamber Judgment in Ilias and Ahmed v Hungary: Immigration Detention and how the Ground beneath our Feet Continues to Erode

By Dr. Vladislava Stoyanova (Associate Professor, Faculty of Law, Lund University)

The ECtHR has been for a long time criticized for its approach to immigration detention that diverts from the generally applicable principles to deprivation of liberty in other contexts. As Cathryn Costello has observed in her article Immigration Detention: The Ground beneath our Feet, a major weakness in the Court’s approach has been the failure to scrutinize the necessity of immigration detention under Article 5(1)(f) of the ECHR. The Grand Chamber judgment in Ilias and Ahmed v Hungary delivered on 21 November 2019 has further eroded the protection extended to asylum-seekers under the Convention to the point that restrictions imposed upon asylum-seekers might not even be qualified as deprivation of liberty worthy of the protection of Article 5. The Grand Chamber overruled on this point the unanimously adopted Chamber judgment that found that the holding of asylum-seekers in the ‘transit zone’ between Hungary and Serbia actually amounts to deprivation of liberty. Continue reading

Journalist and editor’s conviction for incitement to religious hatred violated Article 10

By Ronan Ó Fathaigh and Dirk Voorhoof

In Tagiyev and Huseynov v. Azerbaijan, the European Court of Human Rights unanimously held that the conviction and imprisonment of Azerbaijani journalist Rafig Nazir oglu Tagiye, and editor Samir Sadagat oglu Huseynov, for incitement to religious hatred, violated their right to freedom of expression under Article 10 ECHR. Both had spent over a year in an Azerbaijan prison, and shockingly, following his release, Tagiyev was stabbed to death in an attack in Baku while his case was pending before the European Court. Tagiyev’s wife has continued the proceedings over her husband’s conviction and imprisonment, proceedings that took more than 11 years before the European Court. Mrs. Tagiyev also has a separate case pending over her husband’s killing, claiming that the Azerbaijani government failed to protect his right to life, and that he was targeted over his journalistic activities (here). Continue reading

Spain: Does the Supreme Court judgment against Catalan leaders comply with human rights law?

By Massimo Frigo (Senior Legal Adviser of the International Commission of Jurists)

On 14 October, the Supreme Court (Tribunal Supremo) of Spain convicted 12 people in connection with their part in the organisation on 1 October 2017 of a referendum on Catalonian independence, that was conducted despite having been declared illegal by the Constitutional Court.

Nine of the twelve leaders on trial – including high-ranking Catalan government officials – were convicted, in addition to other offences of abuse of power and disobedience, of the more severe offence of sedition.

The verdict was much expected and was issued in a context charged with political tension and expectations in a country that has been polarized by very contrasting opinions on the claims of self-determination in Catalunya, the carrying out of the referendum on 1 October 2017 despite the Constitutional Court’s ruling about the lack of legitimacy of this consultation under the Constitution, and the fact that the voting process during the referendum was forcibly suppressed in many locations by the police, with credible reports of the use of unnecessary and disproportionate force in breach of Spain’s international law obligations. Continue reading

Osman Kavala v. Turkey: unravelling the Matryoshka dolls

By Emre Turkut (PhD Researcher at Ghent University and DAAD Visiting Fellow at the Hertie School in Berlin)

On 10 December 2019, the European Court of Human Rights (ECtHR or Court) delivered its much-awaited decision in the case of Osman Kavala v. Turkey, an application lodged by a human rights defender and philanthropist to challenge his arbitrary arrest and subsequent placement in pre-trial detention in relation to the Gezi Park events and the 15 July 2016 attempted coup. The application had been pending before Strasbourg since 8 June 2018. In line with its priority policy that has been previously implemented in the group of cases concerning detained journalists and academics in Turkey, the Court decided to grant priority to Osman Kavala’s case on 23 August 2018 and it was hence communicated to Turkey on 30 August 2018. In its judgment, the ECtHR found several violations (see below). Arguably, the finding of an Article 18 violation in conjunction with Article 5(1) (c), among other violations, is the most significant part of the judgment and yet comes as no surprise. Following the Court’s earlier ruling in Selahattin Demirtas v. Turkey, this makes it the second Article 18 case decided against Turkey, which adds to the steady evolution of the burgeoning case law (see, inter alia, the Grand Chamber’s Merabishvili v. Georgia). Continue reading

López Ribalda and Others v. Spain – covert surveillance in the workplace: attenuating the protection of privacy for employees

Fotis Bregiannis is a doctoral researcher in the field of European Labour Law at UCLouvain. He works at the social law department of the Centre for the Interdisciplinary Research in Law, Enterprise and Society (CRIDES) and is currently writing a doctoral dissertation on EU legal instruments imposing information-related obligations on MNEs (EWC Directive, 2014/95 Directive).

Argyro Chatzinikolaou is a doctoral researcher and a member of the Law & Technology research group and the Human Rights Centre at Ghent University. She is currently working on the research project “Minors and online sexual acts: a study of legal qualifications and regulatory approaches from a children’s rights perspective”.

In López Ribalda and Others v. Spain, a recent judgment delivered by the Grand Chamber, the European Court of Human Rights (hereinafter ECtHR or Court) held, by 14 votes to three, that Spanish supermarket employees who were covertly filmed by security cameras in their workplace, following suspicions of theft, had suffered no violation of Article 8 of the European Convention on Human Rights (hereinafter ECHR). The Grand Chamber ruled against the Chamber judgment of 9 January 2018 which had found a violation of the employees’ right to respect for private life accordingly. In fact, the Grand Chamber seems more eager to accept restrictions to the protection of workplace privacy, contrary to the more promising Grand Chamber judgment in Bărbulescu v. Romania (in which two years ago the Court had found a violation of Article 8 in the case of the monitoring of an employee’s electronic communications). Continue reading

Gender-based violence triggers differential treatment in housing benefit case

By Katarina Frostell, Project Manager and PhD Candidate, Institute for Human Rights, Åbo Akademi University, Finland

On 24 October 2019, the European Court of Human Rights delivered its judgment in J.D. and A. v. the United Kingdom, in the so-called bedroom tax case. In its judgment, the Court applied a discrimination analysis on the reduction of housing benefits involving two single mothers, whose housing benefits were reduced following a change in the national housing regulations. The applicants argued that they should be treated differently than the mainstream recipients of the benefit due to their special circumstances linked to disability and gender-based violence. In the second case involving gender discrimination, the Court found with five votes to two, a violation of Article 14 in conjunction with Article 1 of Protocol 1 on the right to property. The Court dismissed the claims of discrimination on the grounds of disability in the first case. Two judges submitted a partly dissenting opinion. Continue reading

New journal: ECHR Law Review

It doesn’t happen every day that a new journal is launched in the area of human rights law, let alone one that focuses exclusively on European Convention law. Looking forward to reading the new ECHR Law Review, edited by regular Strasbourg Observers blogger Kanstantsin Dzehtsiarou and by Vassilis Tzevelekos.

More info on the aim of the journal and how to submit an article below.

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Stuck in the middle with Papageorgiou: Missed or new opportunities?

Effie Fokas is a political scientist and a Senior Research Fellow at the Hellenic Foundation for European and Foreign Policy, Research Associate of the London School of Economics Hellenic Observatory, and member of the Henry Luce/Leadership 100 project on Orthodoxy and Human Rights (Orthodox Christian Studies Center, Fordham University). She was also Principal Investigator of the ERC-funded Grassrootsmobilise Research Programme, which was one of three interveners in the Papageorgiou case.

Introduction

On 31 October 2019, the European Court of Human Rights delivered its judgement on the case of Papageorgiou and Others v. Greece, thus adding to its rich case law to do with religious education. Papageorgiou concerns the claim of Greek parents and students that the Greek mandatory religious education and its exemption process violate their Art.2, Protocol 1 right to education in accordance with their own religious or philosophical convictions. The exemption right was limited only to students who are not Orthodox and who submit a formal ‘solemn declaration’ to this effect to their school. On this basis both families in the case also claim violation of their Article 8 right to respect for private life, their Article 9 right to freedom of religion, and the Article 14 prohibition of discrimination.

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Pryanishnikov v. Russia: the production and distribution of erotic and pornographic material under Article 10 of the ECHR

Argyro Chatzinikolaou is a doctoral researcher and a member of the Law & Technology research group and the Human Rights Centre at Ghent University. She is currently working on the research project “Minors and online sexual acts: a study of legal qualifications and regulatory approaches from a children’s rights perspective”.

In Pryanishnikov v Russia, a case concerning the authorities’ refusal to grant the applicant a film reproduction license, the European Court of Human Rights (hereinafter ECtHR or Court) found a violation of the right to freedom of expression, as the only reason advanced by the domestic courts for the refusal of the relevant license had been based on mere suspicions rather than findings of fact. Moreover, the Court concluded that the authorities had failed to strike a fair balance between the right to freedom of expression and the need to protect public morals and the rights of others. Beyond the judgment itself and the finding of a violation of Article 10 of the European Convention of Human Rights (hereinafter ECHR), what merits attention is the elaborate concurring opinion delivered by Judge Pinto de Albuquerque on the regulation of pornography and the justification of restrictions of such material at a European and national level. Continue reading

Strasbourg Court’s new non-contentious phase – a tax on lawlessness?

Jessica Gavron, Legal, Director, European Human Rights Advocacy Centre, London

It is widely recognised that the European Court of Human Rights is under huge pressure to reduce its caseload, currently standing at almost 60,000 cases. To this end, the Court has been increasing the number of cases resolved by friendly settlements and unilateral declarations and in January this year started trialling a new compulsory 12 week non-contentious phase to its procedure. The intention behind this new phase is the early, expeditious and domestic resolution of cases, involving greater ‘burden sharing’ of the caseload with Contracting States. The friendly settlement of cases could justifiably lead to the resolution of many pending cases and has the potential benefit, with proper oversight, of allowing for more specific remedies than may be forthcoming from a final judgment. However, the implementation and conduct so far of this new phase has given human rights lawyers and applicants cause for serious concern. Continue reading

Denying journalist access to asylum-seeker ‘reception centre’ in Hungary violated Article 10 ECHR

By Dirk Voorhoof and Ronan Ó Fathaigh

In Szurovecz v. Hungary, the European Court of Human Rights has held that a refusal to grant a journalist access to an asylum-seeker ‘reception centre’ in Hungary violated his right to freedom of expression under Article 10 ECHR. The ECtHR emphasised that newsgathering, including ‘first-hand’ observation by a journalist reporting on a matter of significant public interest, is an essential part of journalistic research and press freedom. The ECtHR found that the public interest in reporting from certain locations is especially relevant where the authorities’ handling of vulnerable groups is at stake, and the presence of media is a guarantee that the authorities can be held to account for their conduct. Continue reading

Ilașcu: from contested precedent to well-established case-law

By Linda Hamid, Research Fellow at the Leuven Centre for Global Governance Studies – Institute for International Law, KU Leuven

On 15 October 2019, the European Court of Human Rights delivered a judgment in the case of Grama and Dîrul v. The Republic of Moldova and Russia, whereby it found a violation of Art. 1, Protocol No. 1 and Art. 13 to the/of the Convention by the Russian Federation only. More specifically, the Court held that the seizure of the applicants’ cars and the imposition of fines on them by the authorities of the ‘Moldavian Republic of Transdniestria’ (the MRT or Transdniestria) and the lack of an effective remedy for the applicants to assert their rights in the face of the actions of the MRT constituted a breach of said Convention provisions. Transdniestria is a breakaway region in Moldova that declared independence in 1991 but remains unrecognized by the international community. Continue reading

Strand Lobben and Others v. Norway: from Age of Subsidiarity to Age of Redundancy?

In the recent judgment of Strand Lobben and Others v. Norway, the Grand Chamber found a violation of Article 8 ECHR (the right to respect for family life) on account of shortcomings in the decision-making process leading to the adoption of a boy who had been placed in foster care. The Grand Chamber in particular took issue with the fact that this decision had been taken without up-to-date expert evidence on the mother’s capacity to provide proper care and on her son’s vulnerability. As the case has already been discussed by Marit Skivenes on this blog, this post will only focus on a particular aspect of the case: the side-stepping of the important substantive issues in favour of a purely procedural review of the case, despite strong mobilization by third party interveners around the former. This certainly fits within the broader trend seen in the case law where there is an increasing reliance on procedural review, often associated with the idea of Strasbourg having entered the “Age of Subsidiarity”, a term coined by Judge Spano. It is argued that, by micromanaging domestic processes rather than providing guidance on substantive issues, at a moment in time in which no useful decision can still be made for the families affected, the Court risks making itself redundant in addressing human rights concerns in the area of child protection. Continue reading

A new chapter on the deportation of ill persons and Article 3 ECHR: the European Court of Human Rights judgment in Savran v. Denmark

By Dr. Mark Klaassen, Institute of Immigration Law, Leiden University

On 1 October 2019, in the Savran judgment the European Court of Human Rights (hereinafter: ‘the Court’) has applied the Paposhvili-test in cases involving the expulsion of migrants who fear to be the victim of a violation of Article 3 ECHR because a medical treatment is not available in the country of origin. See, for an analysis of the Paposhvili ruling, the blog post of Lourdes Peroni on this blog. The case involves the deportation of a Turkish man with a severe psychiatric condition from Denmark to Turkey. In this contribution, I will first briefly sketch the development of the case law of the Court in Article 3 ECHR cases involving medical treatment. After that, I will outline the facts of the present case and the ruling of the Court. In my analysis of the ruling I will question the feasibility of the Court’s position that the host state is required to obtain assurances from the country of origin that medical treatment is available for a particular patient. I will argue that in case serious doubts persist as to whether the required medical treatment is available and accessible, the returning state should simply refrain from deportation. My final argument is that the Court should have addressed the issue of the right to respect for private and family life under Article 8 ECHR, as I believe it would be helpful to receive more guidance in deportation cases of convicts who committed their crimes in a situation that they cannot (fully) be held accountable because of a psychiatric condition. Continue reading

ECtHR engages in dangerous “triple pirouette” to find criminal prosecution for media coverage of PKK statements did not violate Article 10

By Ronan Ó Fathaigh and Dirk Voorhoof

The European Court’s Second Section recently found that criminal proceedings against the owner and the editor of a newspaper for having published statements by the leader of a terrorist organisation were justified and did not violate the right to freedom of expression. The Court in Gürbüz and Bayar v. Turkey found that the newspaper’s article with statements by the leader of the PKK, Abdullah Öcalan, contained and implied a threat of resumption of violence. In its approach and finding no violation of freedom of expression under Article 10 ECHR, the Court itself made an assessment of the context and content of the article at issue, as the Turkish courts had restricted themselves to the finding of the illegal character of reproducing the statements of the PKK-leader as such, without further evaluating the necessity of the interference in a democratic society. Continue reading

Child protection and child-centrism – the Grand Chamber case of Strand Lobben and others v. Norway 2019

By Prof. Marit Skivenes, Centre for Research on Discretion and Paternalism (University of Bergen)

The backdrop for the Grand Chamber case, is the dissenting Chamber judgment of 2017 – Strand Lobben vs. Norway  – about a boy that had been adopted from foster care. Here, the Chamber concluded it had not been a violation of the mother´s right to respect for family life under Article 8 due to the Chamber’s strong emphasis on the child’s best interest and his de facto family situation, as well as his need for permanency. The dissenting minority of three judges argued for the importance of legal (de jure) bonds and the negative effects of cutting biological ties. In the Grand Chamber judgment, a majority of 13 judges concluded that Norway had violated the applicants’ right to family life on procedural grounds – not on the merits of adoption from care. By this, the Court bypassed a discussion on the tensions and challenges children´s strong position as right bearers implies for the traditional relationships between family and the state.

Although, the Grand Chamber judgement is a disappointment for some and a relief for others, I believe that from a child´s rights perspective there are three important messages that should be addressed: Continue reading

The protection of foster parents right to family and the best interests of the child

By Kartica van de Zon, assistant professor of Family Law, Leiden Law School, the Child Law Department

On 9 April 2019, the ECtHR delivered its judgement in the case V.D and others v Russia. The case concerned a seriously disabled boy who had been in the care of his foster mother for nine years. Typically in cases on long term foster care and adoption, parents complain about their loss of parental authority, or the fact that the child has not returned to their care. In this case, however, it was the foster mother who complained that the child did return to the care of his biological parents. This poses the Strasbourg Court with a difficult dilemma. On the one hand, the Court has often stated that the reunification of children and their parents is the primary goal of child protection measures. On the other hand, the family life between children and their foster parents also deserves protection under Article 8 of the Convention. Granting foster parents a right not to be separated from foster children might come in conflict with the primary goal of child protection measures. Thus how far does the protection of foster parents right to family life reach? Continue reading

Another turn of the screw – further restrictions for Hungarian applications to the ECtHR

This blogpost was written by Andras Kadar, attorney at law, Co-chair of the Hungarian Helsinki Committee

Two recent posts on this blog (one on the Mendrei case and one on the Szalontay decision) by Dániel A Karsai have described how the European Court of Human Rights (Court) – largely disregarding the Hungarian legal-political context and its own jurisprudence on the burden of proof concerning the effectiveness of remedies – has limited potential applicants’ access to the Strasbourg protection mechanism by declaring the Hungarian constitutional complaint an effective domestic remedy to be exhausted as a strong main rule.

With the inadmissibility decision handed down concerning application no. 22172/14, the Court has gone one step further on this road, mounting a procedural obstacle to seeking protection in Strasbourg that certain applicants coming from less privileged groups of society may not be able to overcome.  Continue reading

Burmych v. Ukraine two years later: What about restoral?

By Lize R. Glas, Assistant Professor of European law, Radboud University, the Netherlands

When the Court took the unprecedented decision to strike 12,143 repetitive cases out of its list in  Burmych and Others v. Ukraine on 12 October 2017, it added that it may reassess the situation within two years and restore the cases. As this date is approaching, this blog addresses the question whether the Court will and should restore these cases. For this purpose, I will outline what has happened in the execution process since Burmych, explain what restoration involves and discuss whether the principled and pragmatic reasons for striking out Burmych still apply and convince. This blog begins with a brief summary of the judgment and the events leading up to it. Continue reading

The importance of time in child protection decisions; a commentary on Haddad v Spain

By Simona Florescu PhD fellow, Leiden Law School, the Child Law Department

On 18 June 2019 the European Court of Human Rights found a violation of Article 8 of the Convention in the case of Haddad v Spain. The main reason was that the Spanish authorities did not discharge of their positive obligations to facilitate reunification between the applicant and his daughter (who had been placed in care). The applicant was the child’s father who at the time of placement was suspected of domestic violence against his children and their mother. About one year and four months had elapsed by the time the applicant was legally able to contact his children. During this time, his youngest child (one year and a half old at the time) had been living with foster parents and the authorities were envisaging her adoption.

In addition to finding a violation, the Court called upon the Spanish authorities to re-examine the situation in light of the judgment. Thus, arguably the Spanish authorities are to endeavor to secure the applicant’s reunification with his daughter. Continue reading

Romeo Castaño: “meticulously elaborated interpretations” for the sake of prosecution

By Mattia Pinto, PhD Candidate at the London School of Economics, Department of Law

 On 9 July 2019, the Second Section of the European Court of Human Rights (ECtHR or the Court) delivered its judgement in Romeo Castaño v. Belgium, concerning Belgium’s failure to execute multiple European Arrest Warrants (EAWs) issued by Spanish authorities in relation to a suspected ETA terrorist. Extradition cases involving the ECtHR usually concern complaints of ill-treatment likely to occur if an individual is extradited to a country where human rights appear not adequately protected (see, e.g., Soering, Trabelsi, Othman (Abu Qatada) and Pirozzi). In the case here at issue, the situation is reversed: the applicants complained that Belgian authorities’ refusal to surrender would amount to a breach of their right to an effective investigation into their father’s murder. The Second Section accepted this complaint and ruled unanimously that Belgium had breached its procedural obligation to cooperate under Article 2 ECHR. It is the first time the Court has found a violation of the Convention because a State refuses to surrender an individual sought by an extradition request. The decision is interesting but also controversial in its attempt to engage with multiple and complex issues, involving the relation between the ECHR and EU law, positive obligations to prosecute human rights violations and the principle of non-refoulement in EAW requests. In my opinion, the Court tries but eventually fails to properly deal with these issues. Continue reading

Stoian v. Romania: the Court’s drift on disability rights intensifies

By Constantin Cojocariu

On 25 June 2019, the Court released an eagerly awaited judgment in the case of Stoian v. Romania, brought by a disabled child and his mother, who complained about the denial of the right to education. The Court, ruling as a Committee, rejected all claims, brutally ending an unprecedented litigation campaign on inclusive education that lasted a decade. While the judgment generated outcry among disability rights activists worldwide, it also displayed warning signs about procedural shortcuts taken by the Court and its approach to vulnerable applicants more widely. The judgment’s bottom line, that the fundamental rights of persons of disabilities are primarily a matter of resources that disqualifies them from protection under the Convention, is relatively unsurprising, though depressing and not befitting of a human rights court. What is more interesting is how the Court reached this verdict, by downgrading the case to the three-judge Committee level, by distorting the facts, by adopting the Government’s views wholesale and by refusing to apply meaningful scrutiny. In that sense, to some extent, what is lacking from the official record is more interesting than what was included. This is why an admittedly partisan account of the judgment such as the present one – I acted as the applicants’ co-counsel – may prove interesting to the readers of the Strasbourg Observers blog. Continue reading

Grand Chamber limits the scope of Article 3 for non-state ill-treatment

By Nicole Bürli, Human Rights Advisor of the World Organisation against Torture (OMCT)[1]

On 25 June 2019, coincidently the eve of the international day in support of victims of torture, the Grand Chamber of the European Court of Human Rights limited the scope of Article 3 ECHR. In the case of Nicolae Virgiliu Tănase v. Romania, the Court found that the investigations into a serious traffic accident were compatible with Articles 2, 8 and 6 ECHR and that Article 3 ECHR was not applicable. The latter finding is a change of jurisprudence as the Court stated that Article 3 (procedural limb) ECHR is only applicable to non-state ill-treatment if inflicted intentionally. This is problematic for a number of reasons and the subject of this post. Continue reading

Zhdanov and others v. Russia: on missed opportunities and an offensive applicant

On 16 July, the Court delivered its judgment in the case of Zhdanov and others v. Russia. The case concerns the refusal by the Russian authorities to register two LGBT rights organisations because they were considered extremist organisations on account of the allegedly immoral character of their activities. In this judgment, the Court found a violation of Article 6 § 1 (access to court) and of Article 11 (freedom of assembly), alone and in conjunction with Article 14 (prohibition of discrimination). This blog post is only concerned with the Article 11 and 14 aspects of the case. After setting out the facts, I will highlight some of the missed opportunities in the Court’s judgment from the perspective of the third party intervention we, as the Human Rights Centre of Ghent University, submitted in this case (in particular as far as the assessment of the legitimate aim of the interference is concerned). In addition, I will discuss a quite peculiar aspect of the case: the decision to declare the part of the complaint lodged by LGBT activist Nikolay Alekseyev inadmissible as an abuse of the right of application because of offensive statements he made about the Court and its judges on social media. In line with the (partly) dissenting judges, I will argue that this is problematic from the viewpoint of both freedom of expression and access to the Court. Continue reading

Vladimir Ushakov V. Russia – The 1980 Hague Convention, the child’s best interests and gender biases

By Tine Van Hof, PhD researcher at the University of Antwerp

 On the 18th of June 2019, the European Court of Human Rights gave judgment in the case of Vladimir Ushakov v. Russia (application no. 15122/17). The Court held by six votes to one that there has been a violation of the applicant’s right to family life under Article 8 ECHR. The case concerns Mr Ushakov who sought the return of his daughter V. to Finland after the mother I.K. took her to Russia. The Russian court refused to order the return of the child and based this decision on Article 13(1)(b) of the Hague Convention on Child Abduction. The Court carefully applies the general principles that have emerged in its previous case law on international child abduction. In that respect, the case is not very noteworthy. However, the dissenting opinion of Judge Dedov, in which he is critical of the Hague Convention, invites for discussion. This post will in particular respond to what Judge Dedov has defined as “deficiencies” of the Hague Convention. Continue reading

Glaisen v. Switzerland : the Court still gives up on reasonable accommodation

By Morgane Ventura – PhD researcher at the Geneva University (UNIGE)

On 18 July 2019, the European Court of Human Rights published its inadmissibility decision in the case of Glaisen v. Switzerland, regarding the access of a disabled person to a cinema. Glaisen complained that the cinema company denied him the access to watch a movie that was projected in this one and only cinema in Geneva. Relying on its former case law the Court considers that access to a cinema is not a right and should not be imposed on private parties if there is not any domestic law forcing them to. Moreover, the Court relies on the Swiss authorities’ argumentation according to which the facts do not disclose any discrimination. In my opinion, the Court missed an opportunity to recognize a structural discrimination and to consolidate its case law about substantive equality by granting the right to have a reasonable accommodation. I first examine the decision of the Court and then link it to the notion of structural discrimination. I conclude my assessment with the notion of reasonable accommodation and its promises for the European human rights’ protection system, even though the Court misses a lot of opportunities to concretise it. Continue reading

A worrisome reasoning by the Strasbourg Court in a domestic violence case: Kurt v. Austria

By Zane Ratniece

On 4 July 2019, a Chamber of the European Court of Human Rights (‘Court’) delivered a judgment in Kurt v. Austria. The case concerned a disturbing situation of domestic violence, which escalated over time and ended with the killing of the applicant’s son by her violent husband. (para. 3) The Chamber found that the Austrian authorities had not breached their obligation under Article 2 (right to life) of the European Convention on Human Rights (‘Convention’) to protect the boy’s life from the criminal acts of his father. (para. 80)

This contribution opines that the reasoning by which the Chamber arrived at those conclusions is worrisome for its silence on the particular context of domestic violence and the vulnerability of the victims. Such approach does not sit well with more recent Court’s case-law which expressly acknowledges the particular context of domestic violence. Hence, Kurt risks questioning the progress made in the Court’s case-law and creating uncertainty as regards the standards to be followed in dealing with the widespread and complex phenomenon of domestic violence, requiring active State involvement. Continue reading

Brzeziński v. Poland: Fine over ‘false’ information during election campaign violated Article 10

By Ronan Ó Fathaigh

On 25 July 2019, the European Court of Human Rights delivered an important judgment in Brzeziński v. Poland, concerning a provision in Poland’s election law which allows a court, within 24 hours, to consider whether ‘untrue information’ has been published, and to issue an order prohibiting its further distribution. The European Court in Brzeziński unanimously held that a fine issued under the provision violated the right to freedom of expression, under Article 10 of the European Convention on Human Rights. Continue reading

Prohibiting Collective Expulsion in Melilla: What Should We Expect from the Upcoming Grand Chamber Decision?

Raoul Wieland studies law and social work at McGill University in Montreal, Canada. He is undertaking a work placement with Amnesty International’s Strategic Litigation Unit at the International Secretariat in London.

On 3 October 2017, the European Court of Human Rights released its judgment in the important case of N.D. and N.T. v Spain. Considering the upcoming Grand Chamber decision, it is worth re-visiting some of the important legal safeguards at issue in the Chamber judgment and as outlined by the third-party interventions brought by Amnesty International and colleagues and the Council of Europe Commissioner for Human Rights. Continue reading

Tasev v North- Macedonia: (blurry) dimensions and boundaries of the right to free self-identification

By Kristin Henrard, Professor of Fundamental Rights, Erasmus Law School, Rotterdam

On 16 May 2019 the European Court of Human Rights (ECtHR or the Court) delivered its judgement in Tasev v North Macedonia regarding the refusal of the authorities to change the ethnic affiliation of a judge in the electoral roll of judges.

The Court concludes to a violation of Article 8 ECHR because the interference would not have a basis in national law. There is indeed a problem with the foreseeability of the application of the invoked national law. However, the case particularly invites closer analysis of the right to free self-identification as protected by article 8 ECHR, more particularly the two dimensions of this right that can be distinguished (free self-identification pure, and free self-identification through the exercise of rights), their respective boundaries and the way in which these two dimensions interrelate.

It is argued that the Court fails to fully grasp the two dimensions of the right to free self-identification (and their interrelation), resulting in the mistaken identification of an interference with article 8 ECHR. Continue reading

Volodina, Article 3, and Russia’s systemic problem regarding domestic violence

By Corina Heri, postdoctoral researcher at the University of Amsterdam

‘When he kills you, come and see us’, police reportedly told the applicant in Volodina v. Russia before proceeding to ignore her allegations of domestic violence. On 9 July, the Third Section found that the respondent State had violated its positive obligations under Article 3 and, applying a gender-based approach, held that Russia has a large-scale structural problem when it comes to domestic violence. This post discusses the Chamber’s findings under Articles 3 and 14 ECHR, the question of whether this treatment constituted torture, and how to test compliance with the obligation to prevent ill-treatment. Continue reading

A Bumpy Road to Strasbourg: Ups and Downs of the Ukrainian National Selection Process

By Dr. Kanstantsin Dzehtsiarou (University of Liverpool)

I have already written two blog posts on the issue of election of judges of the European Court of Human Rights in Ukraine here and here. To sum up, the election of the new Ukrainian judge meant to take place in December 2018, but the Ukrainian authorities have only opened the national completion in March 2019 which meant that the whole process is way behind the schedule. I was quite critical of the then proposed design of the competition as it did not comply with the recommendations of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe. Since then the Ukrainian authorities have completely reloaded this competition, changed the rules of the game and reached the pinnacle of the national selection – interviews of the candidates. Recent presidential elections and changes in personnel in presidential administration were perhaps the key reasons why the previous competition was stopped and a completely new procedure was designed. Apart from that, academic criticism and litigation initiated by leading Ukrainian lawyers helped to bury the old competition. The new procedure was promising but its practical application puts the legitimacy and fairness of the whole process in some doubt. Continue reading

Parental Child Abduction is back on the agenda of the European Court of Human Rights

Simona Florescu PhD fellow, Leiden Law School, the Child Law Department

Parental child abduction has been a frequent occurrence for the European Court of Human Rights with the case of O.C.I. and others v Romania being the latest in a series of more than 70 applications. The Court decided these cases in several formations, ranging from the Grand Chamber, to the Chamber and most recently to the Committee of three judges. These formations are indicative of the importance the Court attaches to the issues raised by parental child abduction cases. On the basis of O.C.I. and Others v Romania, we could thus infer that child abduction has become a matter of well-established case law which does not require a too detailed analysis.[1] This may well be the perspective of the ECtHR, however, child abduction is anything but well-established case law[2] and it is precisely in these cross border cases that the Court can and should make a significant contribution in standard setting.

It is for this reason that I have decided to write this blog post. I argue that the Court – and human rights practitioners in general – need to be alert of the difficulties that cross border cases raise for individuals. In these cases, domestic courts of one country are expected to defer the analysis of the merits of the case to the domestic courts of the other country. In the midst of such deferral, and because there is no supranational supervision (other than that of the ECtHR), there is a risk of lower or no protection for human rights. Therefore, dispensing with this case in a Committee of three judges does not do justice to the many complexities raised by child abduction cases. I argue that the case of O.C.I. and others v Romania is one example where, in my opinion, there is more at stake than what the Court makes of it. Continue reading

A and B. v. Croatia and the concurring opinion of Judge Wojtyczek: the procedural status of the ‘disappearing party’

Claire Loven – PhD researcher at the Montaigne Centre for Rule of Law and Administration of Justice (Utrecht University)

On 20 June 2019 the European Court of Human Rights (ECtHR or Court) delivered a judgment in A and B. v. Croatia on the investigation of allegations of child sexual abuse. A, the mother of B, accused B’s father of sexually abusing the four-year-old B. After the Croatian State Attorney’s Office decided against prosecuting the father, finding that it could not conclude that C had committed any prosecutable offence, A and B lodged a complaint before the Court. They complained about the failure of the Croatian authorities to provide a proper response to allegations of child sexual abuse. By four votes to three the Court found that there had been no violation of the procedural aspects of Article 3 (prohibition of torture) and Article 8 (right to respect for private and family life). The sharp division within the Chamber is not only reflected in the bare majority vote on the outcome, but also in the fact that, together, the concurring and dissenting opinions are just as long as the Court’s judgment. The joint concurring opinion by Judges Koskelo, Eicke and Ilievski and the joint dissenting opinion by Judges Sicilianos, Turković and Pejchal focus on the scope of the case, whilst Judge Wojtyczek raises the issue of the father not having a role in the Court’s proceedings. In this blogpost, I leave the issues raised by Koskelo et al. and Sicilianos et al. for other commentators, and focus on the particular issues raised by Wojtyczek. Continue reading