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