A.P., Garçon and Nicot v. France: the Court draws a line for trans rights

By Pieter Cannoot, PhD researcher of human rights law (Ghent University)

On 6 April 2017, the European Court of Human Rights significantly strengthened the human rights protection of trans persons, with its long-awaited judgment in the case A.P., Garçon and Nicot v. France. The Court ruled that the condition of compulsory sterilizing surgery or treatment for legal gender recognition violated Article 8 of the Convention. Nevertheless, the judgment also left some questions unanswered. Continue reading

Nagmetov v. Russia: opening up Pandora’s Box on Article 41?

By Dr. Elisabeth Lambert Abdelgawad
Assoc. Prof. Edith Cowan University (Perth, Western Australia)

The allocation of just satisfaction by the Court has become a more controversial issue, probably due to the increasing number of applications where very serious violations occurred. ‘Article 41 is probably one of the provisions which have raised the most important difficulties to judges over the years’ (E. Lambert Abdelgawad, ‘Is there a need to advance the jurisprudence of the European Court of Human rights with regard to the award of damages?’, in A. Seibert-Fohr & M. E. Villiger (eds) Judgments of the European Court of Human Rights – Effects and Implementation, Ashgate, Nomos, 2014, 116). Continue reading

Chowdury and Others v. Greece: Further Integration of the Positive Obligations under Article 4 of the ECHR and the CoE Convention on Action against Human Trafficking

By Dr. Vladislava Stoyanova, author of Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in European Law (Cambridge University Press, 2017)[1]

 On 30 March 2017 the ECtHR delivered the Chowdury and Others v. Greece judgment (currently available only in French), where the Court found a violation of Article 4(2) of the ECHR in relation to 42 undocumented migrant workers from Bangladesh who worked on a strawberry farm in Manolada, Greece, and who were subjected to severe forms of labour exploitation. The summary of the factual circumstances is available here in English. The ECtHR found that the migrants’ circumstances amounted to forced labour and human trafficking and that Greece was in violation of its positive obligations under Article 4 to take protective operational measures and to conduct an effective investigation. Continue reading

K.B. and Others v. Croatia: the Court’s first steps to tackle parental alienation

By Evelyn Merckx, teaching assistant and PhD researcher at Ghent University

Children’s position during their parents’ separation remains a delicate matter. A variety of reasons can result in a child refusing contact with a parent in response to the challenging situation. Objective reasons can lead to the child’s decision, such as a parent’s aggressive or indifferent behaviour. However, it can also be the result of a smear campaign of the other parent. In the past, the European Court of Human Rights avoided to impose harsh obligations on the State Party to prevent a child alienating a parent. To prevent having to answer the question whether contact is in the best interests of the child in a given case, the Court mainly focuses on the State Parties’ procedural and positive obligations to adopt certain measures to regulate the relations between private individuals through the establishment of an effective regulatory framework of adjudicatory and enforcement machinery (amongst others: ECtHR, Stasik v. Poland, 2015, § 80). Steady case law examines whether the State Party adopted all necessary, relevant and sufficient measures that can be reasonably expected to facilitate contact between parent and child (amongst others: ECtHR, Bostina v. Romania, 2016, § 57) . Furthermore, the Court solely examines the parent’s right to contact with his or her child and hereby refusing to examine the child’s right not to be manipulated. K.B. and others v. Croatia seems to deviate from past case law, providing for a welcome change but entailing some risks as well. Continue reading

Orloskaya iskra v. Russia: Reporting in media during election campaign must be free from content restrictions

By Galina Arapova, Director of Mass Media Defence Centre, senior media lawyer, Russia

On 21 February, the Court delivered its judgment in the case of Orloskaya iskra v. Russia, concerning the use of electoral laws to curb or restrict media reporting at election time and the circulation of critical opinions and information about candidates, their programs and political views.

The case deals with the applicant’s conviction for an administrative offence for publishing critical articles about a politician during the 2007 parliamentary election campaign in Russia.  The applicant, regional newspaper “Orlovskaya iskra”, whose political affiliation was specified on the front page, had published two critical articles. Continue reading

Talpis v. Italy: Elements to Show An Article 14 Violation in Domestic Violence Cases

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.

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X and X v. Belgium: a missed opportunity for the CJEU to rule on the state’s obligations to issue humanitarian visa for those in need of protection

By Helena De Vylder, lawyer at the Flemish Integration Agency (Agentschap voor Integratie en Inburgering)

On 7 March 2017, the Court of Justice of the European Union (CJEU) gave a preliminary ruling in the case PPU X and X v. Belgium. Against the recommendations of the Advocate General, the CJEU left the responsibility for granting humanitarian visas with the Member States. It argued that, although the request for a visa was formally submitted on the basis of Article 25 Visa Code, the situation at stake fell outside the scope of the Visa Code. The applicants submitted the request with the intention to apply for asylum as soon as possible upon their arrival in Belgium and to stay there as refugees, while the Visa Code only covers short-term visa. Continue reading