Yeshtla v. the Netherlands: a missed opportunity to reflect on the discriminatory effects of States’ social policy choices

By Fulvia Staiano, Adjunct Professor of International Law and European Union Law (Giustino Fortunato University)

On 15 January 2019, the European Court of Human Rights (ECtHR) delivered an inadmissibility decision on the case of Emabet Yeshtla v. the Netherlands. In this case, the ECtHR was asked to determine whether the withdrawal of the applicant’s housing benefits (motivated by the fact that she cohabited with an unlawfully resident son) had breached her right to respect for private and family life under Art. 8 of the European Convention on Human Rights (ECHR), alone and in conjunction with the prohibition of discrimination under Art. 14 ECHR. This case raised interesting questions on the potential impact of social assistance and welfare policies on recipients’ family life, as well as on the discriminatory effects of domestic norms that use social benefits as a tool to discourage irregular residence. Regrettably, the ECtHR dismissed this case without a thorough consideration of such questions. Continue reading

Another case of violating privacy and personal data protection: Catt v. the United Kingdom

This blogpost was written by Judith Vermeulen, PhD researcher in the Law and Technology Research Group at Ghent University.

Shortly after Big Brother Watch (see also the blogpost for this case), the European Court of Human Rights again had the opportunity to pronounce itself on the compatibility of Article 8 ECHR with the collection, retention and further use of personal data for public interest purposes by UK authorities. Catt, however, does not involve an assessment of the data processing regime as such. Rather, it evaluates the specific situation the applicant is in. While the question of adequacy of the legal and regulatory framework surrounding the impugned measures remains unanswered, the processing of the applicant’s data in particular is considered to not pass the necessity test. Noteworthy in any case is that the Court – in contrast to what the EU Court of Justice has decided in the past – reiterates that the indiscriminate collection of personal data is justifiable. With Brexit looming – and the CJEU accordingly soon losing its jurisdiction vis-à-vis Britain –, this development in the Strasbourg case-law is of particular importance. Finally, it is questionable whether Article 8 is in fact the best legal ground for assessing the facts of this case. The discussions these provoked at national may illustrate this point. Continue reading

Compensation for victims in inter-state cases. Is Georgia v Russia (I) another step forward?

By Kanstantsin Dzehtsiarou (University of Liverpool)

On 31 January 2019, the European Court of Human Rights (ECtHR) delivered a judgment on just satisfaction in the inter-state case of Georgia v Russia (I). The ECtHR ordered the respondent state to pay 10 million euros to the applicant country. In turn, Georgia will have to distribute this amount among about 1500 victims of the violations identified by the Court in its main judgment. The Court is developing a very new line of case law by awarding non-pecuniary damage in inter-state cases. Until the judgment in Cyprus v Turkey, delivered in 2014, the Court has never awarded financial compensation in inter-state cases. It is beyond the scope of this short post to consider if the Court is doing the right thing by using just satisfaction in the inter-state cases. In this post I will just show some potentially problematic areas which the Court would have to address if this issue is considered again. There are a few pending inter-state cases and the question of compensation is very likely to resurface again. Continue reading

Dupin v. France: the ECtHR going old school in its appraisal of inclusive education?

By Johan Lievens (VU Amsterdam) and Marie Spinoy (Leuven Centre for Public Law, KULeuven)

In Dupin v. France the European Court of Human Rights saw itself confronted with one of the key conflicts in education law: when parents and state officials disagree on which educational trajectory is best for a child with a disability, who gets the final say? This case concerned a mother fighting the decision of the French authorities to refuse her child, who has Autism Spectrum Disorder, access to a general school (through a form of inclusive education). Instead, the child was referred to an ‘Institut medico-éducatif’, an institution established to provide care and a specialized type of education to children with an intellectual impairment. Seemingly going back on its prior case law, the Court did not consider the right to education of the child to be violated. Continue reading

Wunderlich v. Germany: enforcing compulsory home-schooling

By Daniel Monk, Professor of Law, Birkbeck, University of London

On 10th January 2019, the European Court of Human Rights unanimously held that there had been no violation of Article 8 in a case concerning the withdrawal of aspects of the authority of parents and the removal of children from their home for a period of three weeks. The case did not explicitly address Germany’s policy of compulsory schooling, but, rather the legality of the measures taken to enforce the policy. Nevertheless, the arguments raised highlight why home-schooling (or Elective Home Education) is an issue that goes to the heart of current debates about shifting understandings of parental responsibilities and the underlying potential tensions between the civil/political and the social/welfare functions of education. Continue reading

Poll: Best and Worst ECtHR Judgment of 2018

Dear readers,

At the start of the New Year, we traditionally like to seize the moment and assess the past year of Strasbourg jurisprudence. For this purpose, we are hereby launching our poll for the best and worst ECtHR judgment of 2018. We would like to warmly encourage you, our readers, to participate in our annual vote.

Out of the 1,014 judgments delivered by the ECtHR in the course of 2018, our internal voting process resulted in a diverse selection of five judgments in each category. If you are, however, of the opinion that we missed out on an important case(s), you can also select other good or bad cases that we may have missed out using the “Other” option. You are welcome to share your reasons for voting via the comments section below.

The winners and losers will be announced in about a month.

To refresh your memory on the nominated judgments – or to introduce you to them – we have included brief summaries below the polls. Continue reading