G.J. v. Spain and Access to Justice for Victims of Human Trafficking

Guest post by Ruth M. Mestre i Mestre, Human Rights Institute, University of Valencia.

The G.J. v. Spain Decision (App. no. 59172/12) shows many of the problems victims of human trafficking encounter to access justice. It is, sadly, one of those cases where formalities swallow justice, since the outcome could have been totally different had the Court considered that the circumstances of the case required examination, in spite of, or precisely because of the failure to comply with the “written authority” requirement of submission (Rule 36.1 and 47(5)(1)(c) of the Rules of Court).

The challenges posed to the Court were interesting from the perspective of analysing the gender aspects of human trafficking and specially for determining whether the procedures for the identification of victims of trafficking that subordinate their protection to cooperation in criminal procedures against traffickers are compatible with the positive obligations arising from article 4 ECHR. The inadmissibility of the application leaves these questions unanswered. My comments will briefly engage with two sets of issues, the missed opportunity with regards to trafficking, and its connection to the substantive inadmissibility decision of the Court.

Continue reading

The saga continues … Legal standing for NGOs when de facto representing mentally disabled dying in institutions

By Helena De Vylder

Once again, in the decision in Bulgarian Helsinki Committee v Bulgaria, the ECtHR had the opportunity to rule on the legal standing of an NGO when de facto representing two mentally disabled adolescents, who died in an institution. The ECtHR applied the criteria it established in Centre for Legal Resources on behalf of Vincent Campeanu v Romania and confirmed in Helsinki Committee on behalf of Ionel Garcea v Romania. The Court found that the applicant organisation in Bulgarian Helsinki Committee does not meet the requirement that it must formally be involved in the domestic proceedings having all the rights parties in criminal proceedings enjoy. Unfortunately, the Court does not attach more importance to the ultimate goal of granting legal standing to de facto representatives. In Campeanu, it held that this was in order to prevent allegations of a serious nature from being examined at the international level, with the risk that the respondent state might escape accountability under the Convention.

Continue reading

Buzadji v. the Republic of Moldova: a welcome development in pre-trial detention case law

Guest post by Catherine Van de Heyning (Dr. LL.M.), researcher at the University of Antwerp and visiting professor of criminal law at UC Leuven-Limburg.

In the Buzadji v. the Republic of Moldova judgment of 5 July 2016 the ECtHR took the opportunity to clarify its case law on the requirement on a judge to give relevant and sufficient reasons for detention. In its established case law, the Court has already developed criteria for the justification of arrest and detention on remand of suspects pending trial. The Court has found a reasonable suspicion to suffice for the initial detention of a suspect. However, the Court has held that after “a certain lapse of time” reasonable suspicion no longer suffices (a.o. Letellier v. France and Idalov v. Russia). Further detention must be justified in addition on one of the other lawful grounds for detention as enumerated in the ECtHR case law and these grounds must constitute relevant and sufficient reasons. The Court requires “special diligence” from the courts reviewing whether these reasons are provided when deciding on the further detention (a.o. Labita v. Italy and Ilijkov v. Bulgaria).

Due to the lack of a more precise time indication and delineation of relevant and sufficient reasons, the impact of the Strasbourg case law on the domestic practice of pre-trial detention has remained limited. In the Buzadji judgment the Grand Chamber indicated that on two points it felt compelled to further develop its case law. As such, this case is a principled outlining of the Strasbourg case law on pre-trial detention and an important guideline to take into account in practice.

Continue reading

Human Rights Centre submits third party intervention in case concerning LGBT rights activism

The Human Rights Centre of Ghent University[1] has submitted a third party intervention in the cases of Nikolay Alekseyev and Movement for Marriage Equality v. Russia and Nikolay Alekseyev 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. The full text of the third party intervention can be found here, the main arguments are summarized hereunder.

Continue reading

Polish mayor’s private prosecution of local journalist for insult violated Article 10: Ziembiński v. Poland (No. 2)

By Ronan Ó Fathaigh

The European Court’s Fourth Section has held in Ziembiński v. Poland (No. 2) that a newspaper editor’s conviction for describing local government officials as “dim-witted” and a “numbskull” violated the editor’s Article 10 right to freedom of expression. The judgment may prove decisive for future prosecutions of journalists under article 216(2) of Poland’s criminal code, which makes it a specific offence to “insult” a person “through the mass media,” and carries a possible one-year prison sentence. Tragically, however, the editor, Maciej Ziembiński, passed away two years ago aged 70, and did not live to see the Court’s finding that his conviction violated the European Convention.

Continue reading

Taddeucci and McCall v. Italy: welcome novelty in the ECtHR’s case-law on equal treatment of same-sex couples

This guest post was written by Dr. Nelleke Koffeman (*)

The Taddeucci and McCall v. Italy judgment of 30 June 2016 is a novelty in the ECtHR’s case-law on equal treatment of same-sex couples. It is the first time that the Court, in finding a violation of the prohibition of discrimination on grounds of sexual orientation (Article 14 ECHR in combination with Article 8 ECHR) in a case where stable same-sex partners do not enjoy the same rights as different-sex spouses, takes into account that those same-sex couples have no access to marriage under the relevant domestic law. It is not that the Court has never before been asked to acknowledge the (indirect) discrimination involved in such cases. Quite the opposite, but, as set out below, it has so far taken a formalistic approach in such cases. The present judgment is thus a clear – and to be welcomed – deviation from previous case-law.

Continue reading

Ramadan v. Malta: When will the Strasbourg Court understand that nationality is a core human rights issue?

This guest post was written by Marie-Bénédicte Dembour, Professor of Law and Anthropology at Brighton Business School, University of Brighton. (*)

It does not seem an exaggeration to say that the recent judgment in Ramadan v. Malta suggests that citizenship revocation is not generally problematic under the European Convention on Human Rights. How else might one understand the statement according to which ‘an arbitrary revocation of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual’ (para 85)? Strictly speaking, the quoted words appear to indicate that a revocation of citizenship, even when arbitrary, could fail to violate the Convention. How is this possible? One should not have to argue that arbitrary revocations of citizenship are unfathomable in a human rights perspective. The phrasing adopted by the Fourth Section of the European Court of Human Rights is unfortunate, to say the least. So are its reasoning and verdict of non-violation. A change of perspective is needed. Nationality matters enormously – it matters so much that it has to be a core human rights issue, and it is high time the European Court of Human Rights should recognise this.

Continue reading