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

A Court Divided: discord and disagreement in Rola v. Slovenia

This post was written by Bas van Bockel, Senior Lecturer of EU law, at Utrecht University.

In a judgment delivered on June 4 by the 4th Chamber of the ECtHR, no less than 3 separate opinions – both partly dissenting and partly concurring – were delivered by 5 of the 7 judges sitting on the case. The facts of the case appear unremarkable, making it all the more surprising that the judges ostensibly found it so difficult to reach agreement between them. What is particularly concerning is that the Court appears to disagree fundamentally on one of the most well-established doctrines from its own case law, the Engel doctrine. The result is puzzling, and raises the question of how the national judiciary can be persuaded to follow the case law of the ECtHR if the Court itself appears so divided on its proper interpretation and implications. Continue reading

Russia left, threatened and won: Its return to the Assembly without sanctions

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

The background story: The Assembly takes action

As has been recounted on this blog and on other blogs already (see here and here as well), the Parliamentary Assembly of the Council of Europe (Assembly) and Russia have been in a row ever since the Assembly suspended the voting rights and some other rights of the Russian delegation in April 2014 (see also here). The Assembly took this measure because of, inter alia, Russia’s annexation of Crimea. In response, Russia has not submitted the credentials of its delegation since 2016. Moreover, Russia suspended its payment to the Council of Europe.

These events have not only led to serious financial consequences for the Organisation (by the end of 2019, Russia will have a debt of 90 million euros), but have also led Russia to question the binding nature of the European Court of Human Rights’ (Court) judgments, considering that it has not participated in the election of most of the Court’s current judges. To make things even worse, Russia has threatened to leave the Council of Europe if it would not be permitted to participate in the election of the new Secretary General during the June 2019 session (see also here). Russia has made its return to the Assembly conditional on the Assembly removing from its Rules of Procedure the provisions concerning the challenging of credentials and the imposition of sanctions. As a result of these events, the Council of Europe is now in a ‘deep political and financial crisis’. Continue reading

G.K. v. Belgium: Post-electoral Disputes of a Political Nature Once Again in the Spotlight

By Julian Clarenne (PhD researcher at the Centre interdisciplinaire de recherches en droit constitutionnel et administratif, Université Saint-Louis Bruxelles)

On 21 May 2019, the European Court of Human Rights delivered an awaited judgment in G. K. v. Belgium on the competence of elected assemblies in post-electoral disputes. It found that the Belgian State had violated Article 3 of Additional Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the right to free elections. The reason was that one of its parliamentary assemblies (the Senate) did not offer, at least in the circumstances of the case, sufficient procedural guarantees against arbitrariness in the context of reviewing the validity of the resignation of one of its members. In that judgment, the Court also ordered Belgium to pay the applicant EUR 5,000 by way of just satisfaction for compensation in respect of the non-pecuniary damage, in addition to EUR 30 000 in costs and expenses. While this judgment is in line with the Court’s previous case-law on the right to free elections, it misses the opportunity to increases the pressure on national legal systems which, like Belgium, still confer the competence of post-electoral disputes to parliamentary assemblies. It is nevertheless unsurprising that the Court preferred to just settle the dispute at stake without drawing general conclusions, as it is in the line with its inclination to “judicial minimalism”. Continue reading

How many judgments does one need to enforce a judgment? The first ever infringement proceedings at the European Court of Human Rights.

By Kanstantsin Dzehtsiarou (University of Liverpool)

The Grand Chamber of the European Court of Human Rights (ECtHR) delivered its first ever judgment in an infringement procedure request (under Article 46-4 ECHR) in the case of Mammadov v Azerbaijan. The applicant in this case was an opposition leader from Azerbaijan who was put in prison contrary to Articles 5-1c and 18 ECHR. The Court confirmed that acquittal of the applicant was the only individual measure capable to remedy this violation. In so doing, the Court has effectively made the only decision that was politically plausible, namely it agreed with the Committee of Ministers that the judgment in the first Mammadov case was not executed properly. I have argued that this was the only possible solution in my previous blog post on the issue. The Court made it clear that the Committee of Ministers has quite broad competencies in interpreting the judgments of the ECtHR. Başak Çalı has written a good blog post analysing the substance of this decision. So, to avoid repetition I am going to focus on a few points which I found important not only for this judgment in particular but also for the future of the procedure pursuant to Article 46-4 ECHR if the Committee of Ministers ever requests a new judgment. Continue reading

Extremist view on subsidiarity and on exhaustion of domestic remedies? Criticism of the decision Szalontay v. Hungary

By Dr. Dániel A. Karsai, attorney at law, Dániel Karsai Law Firm

The Commissioner of Human Rights of the Council of Europe recently issued a report following her visit to Hungary where she made the following rather astonishing statement: “Human rights violations in Hungary have a negative effect on the whole protection system and the rule of law. They must be addressed as a matter of urgency”. The Commissioner voiced serious concerns over the impartiality of the judiciary (including the Hungarian Constitutional Court – hereinafter: CC), rights of migrants, gender equality and the systemic harassment of civil society.

This report gives topicality to the present blogpost which is the continuation of the post written about the Mendrei v. Hungary admissibility decision. In Mendrei, the Court declared one of the three types of the Hungarian constitutional complaint – the actio popularis – an effective remedy to be exhausted before turning to Strasbourg. In my Mendrei post I raised serious concerns about the Court’s new approach on the exhaustion of domestic remedies, in particular, the shift of the burden of proof from the Government to the applicants and that the Court completely disregards the legal and factual context in which the CC operates. To my biggest regret, the Court followed the course it started in Mendrei and in the recently adopted Szalontay v. Hungary admissibility decision finished the job: it fully declared the Hungarian constitutional complaints an effective remedy to be exhausted before turning to the ECHR. In the present post, I will argue that the Court’s view on domestic remedies is not just simply erroneous and disconnected from the Hungarian realities but seriously endangers the effective protection of human rights by establishing rather unforeseeable standards for the applicants that will be almost impossible to meet.

Continue reading