By Emma Várnagy

In this blog post, I discuss the case of Bódi and Others v Hungary (App.no.29554/17) declared inadmissible by the Court. The decision concerns the investigation of an anti-Roma hate crime with the potential involvement of a police officer. It is a disappointing decision because the Court’s case law on hate crime investigations has developed in a victim-oriented direction more so than its approach to cases of discriminative abuse committed by state agents (see e.g. posts on this blog about Oganezova v Armenia, Škorjanec v Croatia, and Balázs v Hungary, and the critique of the latter line of case law here, here, here, and here). The present case – concerning the role of an officer and a paramilitary group involved in a hate crime – therefore could have been ideal for further procedural clarifications in this particularly concerning area. Instead, the Court seems to have merely reviewed whether established basic principles have seemingly been ‘checked off’ the list, and satisfied itself that the Respondent State has met its obligations to investigate, even if unsuccessfully so, and rejected examining the case on the merits. My argument is one against such an overly procedural approach to investigative procedures, which only incentivises showcasing the existence of efforts, but which does not engage with their outcomes whatsoever.

As part of my PhD research, I have had the opportunity to consult domestic files and judgments as well as the application and observations submitted to the ECtHR in this case, and commentaries from the NGO representing the Applicants (for Hungarian speakers, see these here, here, and here). For this reason, I can highlight some elements of the case that the Court did not seem to reflect upon in its decision.

The facts of the case

In 2014 the Applicants, four Romani men, were working in a forested area where they were attacked by a group of some ten hooded men dressed in the uniform of an extremist group, carrying batons, baseball bats, brass knuckles, and pepper spray. These elements had been discussed days before the attack in messages exchanged between Officer B and one of the perpetrators’ wife. The attackers shouted racist slurs, including ‘dirty Gypsies, you will die, get on the ground!’ One of the attackers, who was instructing the perpetrators, and whom the applicants identified as their neighbour, was arrested the same day, and ultimately convicted of bodily assault and hooliganism, resulting in a suspended prison sentence. The investigation into the other perpetrators’ identities was eventually terminated.

The Applicants complained (under Articles 3 and 14 of the Convention) about the inadequacy of the investigation, particularly about the failure to investigate the perpetrators’ connection to an extremist group and the failure to address the role of the police officer in the incident.

The Decision

The Court noted that the investigations lasted a considerable amount of time, but ultimately did not lead to the prosecution of the ‘unknown perpetrators.’ The sole attacker that could be identified was convicted of bodily assault and hooliganism. The Court further observed that the authorities eventually classified the offence as violence against members of a community (ie. hate crime) but ‘they did not consider it proven that the attack was racially motivated, rather than ensuing from a family feud’ (Para 27). In light of these considerations the Court found that ‘the investigative actions undertaken by the authorities constituted appropriate, albeit partly unsuccessful, steps’ (Para 28) and declared the application manifestly ill-founded.

Commentary

The sole question the Court asked itself was this: ‘Was the investigation adequate for the purposes of Article 3 [prohibition of ill-treatment] alone and in conjunction with Article 14 [prohibition of discrimination]?’ (Communication of 3 October 2019). This question easily invites a simplistic answer, instead of a qualitative one. It is well established that the procedural duty read into these articles ‘to investigate possible racist overtones to an act of violence is an obligation of means rather than an obligation to achieve a specific result’ (Para 24 of Bódi and Others). What I find concerning is the preceding sentence in the decision: ‘[I]n practice, it is often difficult to prove racist motivation’ (Ibid) wherefore – it seems the Court is accepting – it would be an unreasonable burden on the authorities to expect so. In the ensuing short assessment, I will highlight four elements of the case which the Court bypassed, even though these, in my view could have warranted an examination on the merits. These are namely 1) the qualification of the offence, 2) the motives of the perpetrators, 3) the paramilitary affiliation of the unknown attackers, and 4) the role of Officer B. I realise that it is not the Court’s task to substitute its reading of the facts in place of those established by the domestic courts. However, a focus on procedural obligations should entail scrutinising the quality and effect of the steps taken rather than a mere deference to the existence of any investigative efforts. The elements highlighted below are particularly important, because they may shed light on the patterns of the domestic proceedings that make it clear why a focus on the volume of procedure as ‘an obligation of means’ can only lead to disappointing results for victims of anti-Roma violence.

1.)  The qualification of the offence

The fact that the authorities eventually launched a procedure relating to the proper qualification of the incident as a hate crime was satisfactory for the Court. Such a check-list approach bypasses two important facts. First, and more generally: it is a common pattern in several Council of Europe Member States that first-responding officers often under-qualify hate crimes, which the Court too has noted with concern (see e.g. paras 106-9 in Sabalić v Croatia and paras 58 and 68 of Škorjanec v Croatia). Moreover, under-qualification creates evidentiary difficulties in itself, and even if the incident is eventually properly qualified, the later this happens, the more difficulties might arise in the investigation with the passage of time. In the present case the requalification of the incident as a hate crime happened 9 months after the attack. Second, and more specifically, the prosecutorial decision to qualify the incident as a hate crime in the present case had no practical effect, as the prosecutor did not order any additional investigative measures by the proper authority. This would have been necessary, because as held by the Court in Balázs v Hungary, the prosecuting authorities’ failure ‘to identify the racist motive in the face of powerful hate crime indicators (…) [may] impair the adequacy of the investigation to an extent that is irreconcilable with the State’s obligation in this field to conduct vigorous investigations’ (Para 75). In sum, the Court ticked off the requirement to launch seemingly proper procedures but it did not concern itself with considerations whether this was a meaningful or purely clerical exercise.

2.) The motives

Even though the perpetrators shouted racial slurs during the attack and wore a uniform resembling that of an extremist organization, the Court accepted without hesitation that the domestic courts reached a well-reasoned conclusion in finding that a racist motive could not be proven (Para 27 of Bódi and Others). The argument that the Eger Court relied on was that the Applicants themselves indicated a personal conflict in relation to the known perpetrator (Eger Court as second instance Bf.246/2016/4) thereby excluding the possibility that the attack was bias motivated. This finding goes contrary to the principle the Court has established in Balázs ‘that not only acts based solely on a victim’s characteristic can be classified as hate crimes. (…) [P]erpetrators may have mixed motives, being influenced by situational factors equally or stronger than by their biased attitude towards the group the victim belongs to’ (Para 70). The question of motive becomes even more pressing in the case of the 7-9 unknown perpetrators. The fact that important hate crime indicators were not investigated due to the failures in properly qualifying and accordingly investigating the circumstances, could have prompted a merits assessment of the case. The Court could then have examined whether in fact the conclusion reached by the domestic court regarding the motive of the perpetrators was properly addressed, both on its own and in terms of the larger context of the case. Instead, in sum, the Court ticked off the requirement that there be a reasoned domestic decision. By accepting the conclusion in the case of the one known perpetrator, the Court essentially reinforced the ignorance concerning the larger context of the incident that was problematic in the domestic proceedings in the first place.

3.) The unknown attackers and their paramilitary affiliation

The main focus of the complaint submitted to the ECtHR concerned the 7-9 other perpetrators escaping prosecution. The fact that the overwhelming majority of the perpetrators can avoid accountability for a serious crime sends a very harmful message. Obviously, there are cases in which, despite all genuine efforts, all perpetrators cannot be identified. In the present case, however, the investigation into the identities of the 7-9 other attackers was terminated after 6 months. It is important to note that the termination of the investigation in the case of unidentified perpetrators was against criminal procedural rules prescribing the suspension of the proceedings. This failure may be interpreted as a cover-up of the involvement of officer B (discussed below) by terminating the case after the charging of only one perpetrator (Para 6 of the supplements to the Application pursuant to Rule 47.2(b)). Repeated petitions to refer the investigation of the incident, as a hate crime, to the relevant authority, and to investigate in particular, whether the crime was perpetrated, in connection with the paramilitary organisation, in a criminal organisation or association, were rejected by the district prosecutor. Even though the Applicants provided detailed descriptions of the uniform of the perpetrators as well as evidence from the website and Facebook page of the paramilitary group of posts about their ‘assistance’ in the village where the incident took place the prosecutor found that ‘based on the currently known facts, the appearance of Betyársereg [the paramilitary group] cannot be connected with the acts of L. [the only convicted perpetrator] in the present case’ (Eger District Prosecutor’s Office B.3368/2014/10 response to the attorney’s petition on 4 December 2014). The Court is clear in Abdu v Bulgaria that plausible evidence of extremist connections should trigger the obligation to conduct specific investigations (Para 50). Moreover, in Balázs, the Court specified that social media posts may also constitute such indicators (Para 75). While the Court itself had previously heard cases where the same extremist group harassed Roma in Hungary (see e.g. R.B. and Király and Dömötör), it makes no further mention of this element in its decision besides the description of the subject matter of the case. Instead, in paragraph 26, the Court enumerates the investigative steps the domestic authorities took in a check-list fashion and concludes that these were sufficient. In sum, the Court was satisfied that the domestic authorities made certain efforts, leaving the impression, however, that if there is enough volume, the quality of the actions is of secondary or no importance.

4.) The role of officer B

The second focus of the ECtHR application was the authorities’ failure to address the role of police officer B, who, days before the attack, exchanged text messages with L.’s wife about ‘smashing up’ the Applicants, offering his help acquiring pepper spray, and asking his colleagues to harass the Applicants (Para 13 of Bódi and Others). The Application, subsequent observations, supplements, and annexes detail the numerous shortcomings in this regard through several pages. In spite of this, B’s role is only mentioned in the Court’s decision once when stating the Applicants’ complaints. In sum, the Court seemingly did not pick up on this element of the complaint at all, let alone take the opportunity to clarify specific elements of the investigative procedure relating to the potential role of a police officer. In Lakatošová and Lakatoš v Slovakia (concerning a racist murder committed by an off-duty officer), the Court already highlighted the importance of proper measures that ‘secure accountability in practice (…), maintain public confidence in the authorities’ adherence to the rule of law, and prevent any appearance of collusion in or tolerance of unlawful acts’ (Para 74). The Court could have specified in a merits assessment of the present case what these should entail exactly. The message the domestic proceedings convey is that if the alarming conduct of police officers does not warrant any consequences whatsoever, there really is no hope for justice for marginalised victims of abuse. It is precisely for this reason that the Court created specific procedural obligations under Article 3 and correspondingly under Article 14, which it should not lose sight of.

Conclusion

While it is clear that the Court’s role is not to act as a court of fourth instance and that it must carefully respect its subsidiary role, the level of procedural deference – particularly in cases where procedures tend to exclude and dismiss complaints by marginalised people – pays lip service to the Court’s role as guardian of the rights of the most vulnerable. Accepting that racism is hard to prove, and therefore not scrutinising the merits of investigative procedures, essentially means succumbing to states where antigypsyism is prevalent and unchallenged. This is all the more worrying as the Court seems to increasingly reject very alarming allegations which in their sheer number signify patterns of institutional racism (see e.g. most recently Kováčová and Others v Slovakia). By scrutinising the four elements highlighted above in a merits assessment instead of brushing over them in an admissibility decision, the Court could have demanded more from State authorities than a mere check-list exercise.

The post Bódi and Others v Hungary: when the Court’s focus on the volume of procedures speaks volumes about its stance on antigypsyism appeared first on Strasbourg Observers.

by Benjamin Nurkić

In the recently announced judgment in the case of Kovačević v. Bosnia and Herzegovina (B&H), the European Court of Human Rights (ECtHR) has found a violation of Article 1 of Protocol No. 12 regarding the complaint about the composition of the House of Peoples of the Parliamentary Assembly of B&H, and regarding the complaint about the elections to the Presidency of B&H. The applicant also raised arguments under Article 3 of Protocol No. 1 in conjunction with Article 14 of the European Convention on Human Rights (ECHR), and Articles 13 and 17 of the ECHR. However, this part of the application has been declared inadmissible because the applicant failed to exhaust all available domestic remedies (Article 3 of Protocol No. 1 in conjunction with Article 14) and because the remainder of the application was manifestly ill-founded within the meaning of Article 35 § 3 (a) of the ECHR. The judgment in this case detected the discrimination of ‘Others’ and all citizens of B&H who are not affiliated with the constituent peoples (Bosniacs, Serbs and Croats) regarding the composition of the House of Peoples and regarding the way of electing members of the Presidency of B&H. The new judgment set old/new requirements for B&H pertaining to its constitutional order. Accordingly, B&H must amend the composition of the House of Peoples and the way members of the Presidency of B&H are elected. In this text, I argue that, with this judgment, and along with other judgments concerning the constitutional order of B&H, the ECtHR has now set complete guidelines for constitutional reform in B&H.

Summary of the judgment

Slaven Kovačević (the applicant) was born in Sarajevo, where he lives. He is a political scientist and a political adviser to a member of the Presidency of B&H. In the first order, the applicant complained that he, as a non-member of the constituent peoples, is not represented in the House of Peoples, since its positions are exclusively reserved for Bosniacs, Serbs, and Croats (Art. IV of the B&H Constitution). The concept of the ‘constituency of peoples’ prescribes that only people who affiliate with the constituent peoples can be elected to the Presidency of B&H and can be designated to the House of Peoples. The ECtHR found a violation of the applicant’s right not to be discriminated against under Article 1 of Protocol No. 12. (Kovačević v. B&H, para. 62). In addition, he complained with the ECtHR because, during the last elections for the Presidency of B&H, his choice was limited since he was able only to vote for the Bosniac or Croat member of the Presidency. He was unable to vote for the Serb member of the Presidency since only citizens from the Republika Srpska (RS) have this possibility. This was the case because of the mix of territorial and ethnic criteria, that are prescribed by the B&H Constitution, on account of which citizens from the Federation of B&H (FB&H) can vote only for a Bosniac or a Croat member of the Presidency, and citizens from the RS can vote only for a Serb member of the Presidency of B&H (Art. V of the B&H Constitution). Accordingly, the applicant’s choice was restricted. The ECtHR stated that ‘no one should be forced to vote only according to prescribed ethnic lines, irrespective of their political viewpoint’, and therefore considered the right of the applicant under Article 1 of Protocol No. 12 to have been violated (Kovačević v. B&H, para. 74). Thus, the ECtHR identified two forms of discrimination in this case. The first discrimination concerned the applicant’s right to be represented in the House of Peoples, and the second form pertained to his active voting rights concerning the Presidency of B&H where the eligible pool of candidates was restricted to only Bosniac and Croat members in the last elections.

The ECtHR’s first requirement

In this case, the ECtHR followed its established practice regarding the composition of the Bosnian House of Peoples (see: Sejdić and Finci v. B&H; Zornić v. B&H; Pilav v. B&H; Šlaku v. B&H; Pudarić v. B&H). So, the stated requirement concerning the composition of the House of Peoples, in this case, had already been manifested in all of the above-mentioned judgments. That requirement stipulates: ‘(…) the time has come for a political system which will provide every citizen of B&H with the right to stand for elections to the Presidency and the House of Peoples of B&H without discrimination based on ethnic affiliation and without granting special rights for constituent people to the exclusion of minorities or citizens of B&H’ (Zornić v. B&H, para. 43). But, in this case, the applicant’s complaint did not concern his inability to stand for elections to the House of Peoples, but the fact that he is not represented in the House of Peoples, as a citizen who is not a member of the constituent peoples. This cannot be considered as an active suffrage right because members of the House of Peoples are elected indirectly. More precisely, members of the House of Peoples are designated from the House of Peoples of the FB&H (Bosniac and Croat members) and from the National Assembly of the RS (Serb members). Thus, citizens are not involved, directly, in the process of electing members of the Bosnian House of Peoples.

However, the ECtHR stated about the composition of the House of Peoples ‘(…) that all segments of society should be represented in the House of Peoples’ (Kovačević v. B&H, para. 55). The requirement in this judgment can be enforced in two ways. The first way is to amend the composition of the House of Peoples and to enable all citizens of B&H to stand for elections to the House of Peoples, so that all citizens will be represented in the House of Peoples. The second way is to limit the powers of the House of Peoples. After all, the House of Peoples still has the same powers as the House of Representatives. As previously explained, members of the House of Peoples are designated indirectly. Conversely, members of the House of Representatives are elected directly by citizens. Although the House of Peoples lacks democratic legitimacy, this state body has the same powers as the House of Representatives which represents all citizens of B&H. Thus, for the ECtHR, the House of Peoples with this composition ‘(…) would have been acceptable in the special case of B&H, had the powers of the House of Peoples been limited to the precisely, narrowly and strictly defined vital national interests veto of the “constituent peoples”’ (Kovačević v. B&H, para. 55). Hence, the solution to comply with the ECtHR’s requirement for the House of Peoples is to either amend the composition of the House of Peoples, or to limit its powers. Although the ECtHR did not deal with the problem of the composition of the Presidency of B&H in the Kovačević judgment, in the previous judgments the ECtHR had stated that all citizens, regardless of ethnic affiliation, should be able to stand for elections to the Presidency (Sejdić and Finci v. B&H, para. 56). Here, the ECtHR reasoned in the same manner: if a state body deals with lives of all citizens, then all citizens should be able to stand for elections to that state body.

The ECtHR’s second requirement

In the Kovačević v. B&H case, for the first time, the ECtHR found a violation of the active suffrage of citizens of B&H. Namely, citizens of the FB&H are not able to vote for the Serb member and citizens of the RS are not able to vote for the Bosniac and Croat member of the Presidency of B&H. This combination of territorial and ethnic requirements the ECtHR considered a discrimination against citizens of B&H. Therefore, the ECtHR stated, ‘(…) no one should be forced to vote only according to prescribed ethnic lines, irrespective of their political viewpoint’ (Kovačević v. B&H, para. 74). So, citizens of B&H ought to have the possibility to vote for anyone who represents their political views regardless of the ethnic affiliation of a candidate. The simplest way to implement this requirement for B&H is for it to become one electorate district. However, this would additionally require the implementation of all the above-mentioned ECtHR judgments. This means that B&H ought to amend the composition of the Presidency of B&H as well, so that the B&H Constitution would no longer exclusively award positions to members of the constituent peoples. Then, this new requirement introduced in Kovačević could be implemented, if members of the Presidency were able to be elected from the entire territory of B&H.

Dissenting opinion – the impact of the judgment on the ECtHR’s practice

Gabriele Kucsko-Stadlmayer (one of the Judges in this case) wrote a dissenting opinion in this case. Her first argument concerned the admissibility of the application. The Judge argued that this application was inadmissible because the applicant did not exhaust all domestic remedies. More precisely, the applicant did not complain to the Central Electoral Commission and the Constitutional Court of B&H (CCB&H). The Judge pointed out that the CCB&H has broad jurisdiction, and it can review the compatibility of any law with the B&H Constitution and also with the ECHR (Kovačević v. B&H, dissenting opinion, para. 6). The dissenting Judge, therefore, wondered why the ECtHR declared the case admissible when the applicant had not complained to the CCB&H which can also review provisions of the Constitution, in accordance with the ECHR. This is a fair question. As the Judge pointed out, in many cases, the CCB&H reviews provisions of the B&H Constitution. This is a more formal approach to this problem. However, the ECtHR took a more substantial approach by considering the CCB&H’s practice in cases where the CCB&H reviewed provisions of the B&H Constitution. The CCB&H has never stated that a provision of the B&H Constitution is not in line with the Constitution (see: Tihić v. B&H; Pilav v. B&H). Therefore, the ECtHR declared ineffective any remedies before the CCB&H as far as they concern the review of provisions of the B&H Constitution because the ECtHR thought it clear what the CCB&H would have decided had the applicant filed a complaint before the CCB&H. Of course, this will raise the question in further cases, whether domestic remedies could be considered as ineffective, solely because an applicant knows that their complaint will not be accepted before a domestic court.

            The second problem, in this case, according to Kucsko-Stadlmayer, involved the discrimination based on representation. The judge stated that the ECtHR in this case ‘(…) insinuates an unprecedented concept in which every voter has an individual right to candidates by whom he or she is “represented”’ (Kovačević v. B&H, dissenting opinion, para. 20). This is the essential question of this case. Did the ECtHR set too abstract standards concerning the right to be represented, which ones did it set, and what does the right to be represented mean? I understand certain arguments raised in this dissenting opinion – not every citizen can be represented individually, for example, in a parliamentary assembly. However, I do not think the ECtHR argues with this judgment that every citizen should be represented in a parliamentary assembly. Rather, I think the ECtHR argues that all segments of society ought to have a chance to be represented in the institution (like the House of Peoples) that confirms all laws. So, according to the ECtHR, if a state body deals with the lives of all citizens, then all citizens should have a chance to be represented in that institution, regardless of ethnic affiliation. Regarding the question of whether every voter (citizen) has a right to vote for anybody who represents his political views and interests, I would argue that the dissenter approached this question from an overly individual perspective. The Judge wondered, since the applicant is a political advisor of a member of the Presidency of B&H, why this specific member was not his choice in the last election (Kovačević v. B&H, dissenting opinion, para. 21). This judgment is not related only to the applicant, but to all citizens of B&H in the same position, so the question is not why the applicant could not vote for Željko Komšić (to whom the applicant is a political adviser), but why citizens of FB&H could not vote for Serb members, and citizens of the RS for Bosniac and Croat members for the Presidency of B&H.

With this judgment, the ECtHR set high standards for justifying any type of differential treatment based on ethnic criteria under Article 1 of Protocol 12 of the ECHR. Thus, for all countries that ratified this Protocol, the protection of collective rights will be a problem if they do not justify the protection with strong arguments.

The complete guidelines for the constitutional reform

With this judgment, the ECtHR has stated the complete guidelines for the constitutional reform in B&H. Prior to this judgment, the ECtHR had already ruled that B&H ought to amend the composition of the House of Peoples and the Presidency of B&H. Now, in accordance with this judgment, B&H ought to amend the way members of the Presidency of B&H are elected as well. Why are these judgments important to B&H? In the domestic context, they are important because of the position of the ECHR in the B&H Constitution which prescribes the primacy of the ECHR over all law, including the Constitution (Art. II (2) of the B&H Constitution). Thus, all institutions, including the CCB&H, ought to follow the practice of the ECtHR in B&H. In the international context, it is important because of B&H’s path towards accession to the European Union (EU). Without any constitutional reform, B&H cannot access the EU, and the ECtHR, with this judgment, has now issued complete guidelines on how to implement constitutional reform that will satisfy EU standards. However, these complete guidelines at this moment seem too optimistic, and ethnopolitical leaders in B&H probably will not implement any of the above-mentioned ECtHR judgments in B&H. Not because it is too complex to implement them, but because they will not be sanctioned for the non-implementation. Additionally, if they had implemented all these judgments, then they would have lost their powers. For example, if B&H amended the composition of the House of Peoples, then ethnopolitical leaders would not be able to obstruct political processes in B&H. Thus, ethnopolitical leaders are not keen on implementing these judgments.

The post Kovačević v. Bosnia and Herzegovina: the complete guidelines for the constitutional reform in B&H appeared first on Strasbourg Observers.

by Eva Meyermans Spelmans

In the case of Mestan v. Bulgaria, the European Court of Human Rights (‘the Court’) found that a law imposing Bulgarian as the official language to be used in election campaigns violated the right to freedom of expression as enshrined in Article 10. In 2013, Mr Mestan was fined for speaking Turkish during a public event while campaigning for the parliamentary elections. The judgment shows that language is much more than just a medium of communication. Once again the Court establishes a minimum level of protection for linguistic minorities during election campaigns.

In the analysis of the case, the blogpost will first briefly touch upon the rich linguistic, religious and cultural history of Bulgaria, as this is crucial to understand Bulgaria’s linguistic policy. Secondly, the blogpost will provide a brief overview of the complex framework of linguistic minority rights. The importance of the recognition of linguistic rights for a democratic society and for individuals will then be discussed.

Overview of the Facts

In this case, Mr Mestan, a Bulgarian national of Turkish origin, was the leader of the Movement for Rights and Freedoms Party. In 2013, he was a candidate for the Bulgarian parliamentary elections for this party, which is typically supported by ethnic minorities in Bulgaria. At a public event during his electoral campaign, he spoke in his mother tongue, Turkish, without an interpretation into Bulgarian for seven minutes to a mainly Turkish-speaking public. However, the Bulgarian Electoral Code contained an absolute prohibition on the use of any language in election campaigns other than the official language (Bulgarian). The violation of this prohibition entailed administrative sanctions. Therefore, on the 17^th of May in 2013, Mestan was issued an administrative fine of 2.000 Bulgarian levs (approximately EUR 1.000) as according to the regional governor the offence constituted a significant danger to public order considering Mestan was the president of the political party.

On the 20^th of May 2013, Mestan appealed the decision before the District Court in Kotal. He argued that the Turkish language he had used to address the people during this event was not only his mother tongue, but also that of his Turkish-minority electorate. According to him, a large number of the public were elderly people who were not fluent in Bulgarian, meaning that they could not assimilate the information at the same level if given in the official language. The applicant argued that the prohibition on language use constituted a breach of Article 10 of the European Convention on Human Rights and asked to have the administrative fine set aside. The District Court decided to reduce the amount of the fine to 500 Bulgarian levs (approximately EUR 250) as it was the first offence of the politician, but upheld the decision itself. Subsequently, the Administrative Court in Silven ratified this decision.

Summary of the Judgment

Language as a medium of expression as protected by Article 10 of the Convention includes the freedom to receive and impart information and ideas in any language. This allows all persons to engage in the public exchange of diverse cultural, political, and social information and ideas. The Court had to examine whether the restriction of the use of a language other than the official language during election campaigns, and the scope and application of the restriction were compatible with Article 10.

The Court decided that the administrative fine imposed on the applicant on the ground that he had spoken Turkish at a public event as part of his election campaign, amounted to an interference with the exercise of his right to freedom of expression. The infringement of Article 10 was prescribed by law by Articles 133 and 299 of the 2011 Bulgarian Electoral Code. The Court briefly stated that the measure could pursue the legitimate aims of preventing disorder and protecting the rights of others. The focus of the Court was therefore on the question whether the measure was ‘necessary in a democratic society’.

According to the Court, States are in principle entitled to regulate the use of languages – in certain forms or with regard to circumstances relating to public communications – by candidates or other persons during election campaigns. Restrictions or conditions on language use can only be imposed if they correspond to a ‘pressing social need’. In examining the existence of a ‘pressing social need’ as part of the ‘necessary in a democratic society’ test, the margin of appreciation enjoyed by States plays an important role. The linguistic policies of the Contracting States are influenced by a multitude of historical, linguistic, religious and cultural factors. This makes it nearly impossible to identify commonly shared elements which may guide the Court in imposing a uniform standard, particularly in the context of linguistic policies in an electoral context. Accordingly, the Court allowed the State authorities a particularly wide margin of appreciation in certain contexts in this area. However, in a democratic society, there is an interdependent relationship between the right to freedom of expression and the right to free elections as guaranteed by Article 3 of Protocol No. 1. Free speech is an essential condition for ‘the free expression of the opinion of the people in the choice of the legislature’. In the run-up to elections States have a narrow margin of appreciation, as it is important in a democratic society that opinions and information of all kinds can circulate freely. The Court continued its examination by outlining that the Convention does not per se guarantee the right to use a particular language in communications with public authorities or the right to receive information in a language of choice.

In this case, the Court stated that an absolute prohibition on the use of languages other than Bulgarian coupled with administrative fines is not compatible with the essential values of a democratic society, including the freedom of expression as protected by Article 10 of the Convention. In its judgment, the Court took into consideration that Turkish was the applicant’s mother tongue, as well as the demographic of the target audience, consisting primarily of elderly people who understand Turkish better than Bulgarian. The right of an individual to impart his political views and ideas, and the right of others to receive this information would be meaningless if the possibility to convey the message in a language understood by the addressees is threatened by the possibility of sanctions, even if these only have an administrative nature.

In its analysis, the Court pointed out that of thirty-seven Contracting States surveyed, only Ukraine had a similar absolute prohibition for political candidates to express themselves in a non-official language at public election events. Repeatedly, the Bulgarian provision had been criticised by the Advisory Committee on the Framework Convention for the Protection of National Minorities, by the Venice Commission and by the OSCE/ODIHR. In their recommendations and opinions, these international boards found that this provision deprives minorities from their opportunity to effectively participate in public affairs through elections. Only when people part of a minority group can express themselves in their  mother tongue during an electoral campaign, they have equal access to elections as enjoyed by other citizens. This analysis aligns with the values of a ‘democratic society’ as promoted by the Court. In the context of this case, the Court stresses the importance of pluralism, tolerance and the protection of minorities in a democratic society. According to the Court, ‘respect for minorities, far from weakening democracies, can only strengthen them’. These considerations led the Court to find that despite the margin of appreciation of the national authorities, the absolute prohibition does not correspond to a ‘pressing social need’. Therefore, the prohibition was not ‘necessary in a democratic society’ and thus not proportionate.

Comment on the judgment

The European continent is characterised by its linguistic diversity. To individuals, languages are part of their personal identities. To groups, languages can be part of a shared inheritance and culture. Bulgaria is a great example of a divided society, as it is characterised by its multiple religions, languages, cultures and nationalities. The Ottomans ruled Bulgaria for over five centuries until its independence in 1878. The Turks remained in Bulgaria after border changes and still constitute the largest national minority (8,8%). In the 1980s, Bulgaria’s Communist Party attempted to nationalise its minorities by force. The new language policy at the time only allowed Bulgarian in public places and Turkish names were to be Slavicized. In recent decades, the status of national minority languages is gradually improving. Although Bulgaria did not ratify the European Charter on Minority or Regional Languages (‘ECRML’), it did ratify the Framework Convention for the Protection of National Minorities (‘FCNM’).

The importance of recognising minority rights cannot be underestimated, as according to UNESCO’s Universal Declaration of Linguistic Rights it fosters peace, stability and security. In this regard, it is crucial that all citizens, including those part of a linguistic minority, are able to participate in the political life in order to prevent conflicts and enhance integration in society. This ambitious rhetoric can be found in different international frameworks, such as the ECRML and the FCNM, which aim to protect linguistic rights, but cannot hide their ambiguous, non-binding character. It is unclear what a ‘right to use a minority language’, ‘minority’ or ‘right to language’ exactly entail. Without a clear definition, ‘use of a language’ can pertain to the public domain (e.g. in education), while it can also refer to the private domain. The ECMRL has a limited scope, as it explicitly excludes the languages of migrants. This ambiguity allows European States such as Bulgaria to guard their sovereign rights in the form of linguistic nationalism under the guise of an official multilingual policy. It is feared that such States might actually undermine their political-geographical cohesion by officially recognising a degree of linguistic diversity.

Repeatedly, the Court has emphasised that ‘linguistic freedom as such is not amongst the rights and freedoms governed by the Convention’. However, linguistic rights are part of countless areas of life and thus can be linked to other human rights, such as the right to education, or the prohibition of discrimination. Consequently, in the case law of the Court, including the present case, applicants increasingly revert to other rights provided for in the Convention to ensure a language right. Despite the non-binding character of these international agreements, it is interesting to see that the Court considers the recommendations and opinions of the Advisory Committee on the Framework Convention for the Protection of National Minorities, the Venice Commission and the OSCE/ODIHR.

The values listed by the Court of pluralism, tolerance and protection of minorities in a democratic society require a balanced, reasonable linguistic framework. Otherwise, linguistic rights issues can lead to sentiments of alienation or marginalisation and potentially to instability or conflict. Linguistic rights may address the causes of alienation, marginalisation and exclusion, which in turn can avoid ethnic tensions and conflicts. Democracies can be strengthened when more people are able to participate in the political life of a country. Indeed, the argument can easily be made that more recognition is needed for linguistic minority groups in order to seriously alleviate tensions. As stated before, the recognition of minority languages in a state remains a sensitive topic for various political and national reasons. Consequently, the right to use one’s language, without discrimination, is still underrepresented as a key human right. In this light, the Court’s words may look empty as there is no genuine recognition of multilingualism on the European continent.

Similarly to the case of Şükran Aydin and others v. Turkey, the Court emphasises that the minority language was the speakers’ mother tongue and that some of the persons addressed did not understand the official language. The reasoning in both cases shows the importance given by the Court to the mother tongue as a language in which one can best express themselves, but also the language which allows some part of the minority audience to better understand the speaker. The legitimate interest to use one’s mother tongue cannot be restricted by referencing another language available for communication. This reasoning is accepted by sociological analysis and refutes the argument that there is little reason for minority groups to protect their languages since the speakers will ‘inevitably’ and ‘voluntarily’ shift from their mother tongue to the language that seems to fit better in the situation. Furthermore, it shows that languages should not only be seen in the context of groups and politics. It is important to also see language as an individual freedom, since one’s mother tongue means much more to a person than simply a medium of conveying and receiving information. This implies that when the different interests need to be balanced, a distinction should be made between the right to use a language for an individual and the State or the minority group’s political aspirations. Furthermore, as linguistic rights are an integral part of already existing human rights, linguistic rights should not be framed as rights of minorities that form a distinct category of rights.

Conclusion

In the present judgment, the Court acknowledges the impact which cultural and linguistic exclusion can have on the ability of an individual to participate and contribute to the political life of a country. The case demonstrates the importance of exchanging opinions and information during election periods in a language one understands, with a focus on the mother tongue of the applicant and the addressed group. However, there is no genuine recognition of multilingualism in Europe as in most European countries a balanced, reasonable linguistic framework is still lacking. Balancing state interests and individual interests is not an easy task, but the importance of a balanced framework in safeguarding peace, stability and security on a multilingual continent like Europe cannot be underestimated. The case of Mestan v. Bulgaria establishes an important minimum level of recognition necessary in a democratic society. Nonetheless, it remains up to the European states to take linguistic diversity seriously in order to foster harmonious interaction between groups with dynamic cultural identities.

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By Jill Marshall

The ECHR’s text does not explicitly protect cultural rights. This position contrasts with other international human rights treaties such as the International Covenant on Economic, Social and Cultural Rights. However, through its dynamic interpretation of the ECHR’s different articles, substantive rights have been recognised which may fall under the notion of ‘cultural rights’. The provisions most commonly invoked are Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) of the Convention, as well as Article 2 of Protocol No. 1 (right to education). It has been noted that the growing importance of cultural rights in the Court’s case-law may be, at least in part, caused by the number of cases brought by persons or entities belonging to national minorities within member states of the ECHR, including cultural, linguistic or ethnic minorities. This is especially so when these cases concern the right to maintain a minority identity and to lead one’s private and family life in accordance with one’s traditions and culture, an issue pertinent when children are involuntarily removed from biological parents by the state. In this blog, I analyse these issues through case law developments in Strand Lobben and Others v Norway, Abdi Ibrahim v Norway and, the most recent case which for that reason is set out in more detail: Kılıc v Austria. Each case demonstrates shifts in attitudes towards the importance of maintaining ties with biological families and their cultural and religious origins when children are involuntarily removed from biological parents. All cases emphasise that the children’s best interests must remain paramount.

Strand Lobben (2019)

In Strand Lobben, after giving birth to her son, the first applicant accepted the child welfare authorities’ recommendation to stay at a family centre for evaluation. When she decided to leave three weeks later, the child was taken into immediate compulsory care and placed in a foster home on an emergency basis, because of concerns about the child’s nutrition. The child remained in foster care for three years until the social welfare authorities authorised adoption by the foster parents.

The ECtHR confirmed that protecting biological family ties was fundamental, except when a family has proved particularly unfit. In this case, the ECtHR decided that the domestic authorities had not attempted to perform a genuine balancing exercise between the interests of the child and those of his biological family. The Court found that the decision-making process that had led to the decision authorising his adoption had not been conducted to ensure that all the views and interests of the applicants had duly been considered. The process did not have the safeguards required for such a grave interference and the seriousness of the interests at stake, and therefore breached Article 8.

Abdi Ibrahim (2021)

In Abdi Ibrahim, the applicant was a Somali woman of Muslim faith who immigrated to Norway in 2010 as a single underage mother with her one-year old son. She was granted asylum status. To help care for her child, the applicant had stayed at a parent-child-centre. The centre notified the child welfare services that the applicant’s child was at risk. The child welfare services issued a care order regarding the applicant’s son based on gross physical and emotional neglect. The child was subsequently placed with Norwegian foster parents described as active Christians. The Somali applicant had requested that her child should be cared for by her cousin or a Somali or a Muslim family but this was said to not be possible. For three and a half years, the applicant was allowed limited contact with her son. The foster parents wanted to adopt but they did not want an open adoption with future contact sessions between the applicant and her son. They intended to baptise the adopted child and change his name. When the authorities subsequently allowed for his adoption by the foster family, the applicant did not ask for the child’s return but sought continuation of contact so that her son could maintain his cultural and religious roots.

The ECtHR found a violation in that the relevant authorities had seemingly given more importance to the foster parents’ opposition to open adoption than to the applicant’s interest in the possibility of a continued family life with her child through contact. Reaching its decision, the ECtHR noted that the domestic courts had relied on Article 20 (3) of the Children’s Rights Convention (UNCRC), according to which, when assessing possible solutions for a child temporarily or permanently deprived of his or her family environment, due regard must be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background. The Court accepted that this standard corresponded to, and complied with, the requirements of the Convention. However, the arrangements made after the child’s initial placement into foster care as regards the applicant’s ability to have regular contact with him, culminating in the decision to allow for his adoption, had failed to take due account of the applicant’s interest in allowing the child to retain at least some ties to his cultural and religious origins. The reasons given for the domestic decision were not, therefore, sufficient to show they were exceptional to justify a complete and definite severance of the ties between the child and the applicant or that the decision to that effect had been motivated by an overriding requirement to act in the child’s best interests. Ultimately therefore the ECtHR considered that the decision to approve the adoption failed to take due account of the applicant’s interest in allowing the child to retain at least some ties to his cultural and religious origins (see also this blogpost). A violation of Article 8, in light of Article 9, of the ECHR, was found.

Kılıc (2023)

The facts of Kılıc

The married applicants in this case complained under Article 8 and, in substance also under Article 9. They were of Turkish nationality and Muslim. Their complaint centred on the Austrian domestic courts refusing to return their two youngest children R and M to their care. Further, they complained that the children’s placement with Austrian Christian foster families who did not speak Turkish failed to take into account their cultural, linguistic and religious background. Evidence was produced that the applicants had been reported to the relevant authorities because four out of five of the applicants’ children were alone in an unhygienic and uninhabitable apartment. The youngest two – R, three years old, and M, three months old, at this time were ‘showing signs of severely delayed development’ (para. 7).  All five children were immediately removed from the applicants’ care. During domestic court proceedings, the three older children were returned. An occasion was recounted when the applicants visited R, at the foster carer’s home. R was wearing a necklace with a small cross on it. The parents reacted by ‘yelling and hurling abuse’ ‘dragged R…. forcibly grabbed the child and ran away with her’. However, passers-by stopped this. R was returned to her foster mother. R was ‘severely shocked by the incident and felt afraid of both applicants.’ (para. 15). The cross necklace was explained in domestic court proceedings by the foster mother as originating from a chewing gum machine during a holiday and that the girl had insisted on wearing it on the day of that visit when R had said she did not want to see the applicants.

A lengthy series of court proceedings occurred between 2010 and 2016, including one at which the relevant courts reminded the foster carer that she had to respect R’s Muslim religion. Evidence of the children’s agitation and fear at contact visits, and inappropriate reactions and lack of empathy of the applicants, particularly the mother, was produced. During initial visiting rights, the mother had, in the presence of R, slapped a social worker and insulted her using derogatory terms. In 2014, the relevant court held there was no indication of any ‘Christianisation’ of the children. There was no evidence to suggest any foster carers were inconsiderate of the children’s cultural background and their religion. Their removal from their biological family did not amount to forced ‘Christianisation’ ‘deracination’ or ‘deprivation of their identity’ as the applicants had argued. It was a valid protective measure (para. 58). Expert reports had provided evidence that the mother in contact meetings with R and M demonstrated ‘a lack of empathy and respect towards her children…driven by her own incentives…and was not considerate towards her children.’ (para. 40). When the older three children had been returned to the applicants’ family home, the authorities provided evidence that the applicants would not be able to care for R and M too.

The ECtHR Decision in Kılıc

The Court held that there was an interference with the right to respect for the applicants’ family life under Article 8 (1) and that the measure was in accordance with law aimed to protect the legitimate aim of protecting children. But the question to be decided was whether the authorities, and therefore Austria, had struck a fair balance between the competing interests at stake in line with their negative and positive obligations to achieve the legitimate aim. By six votes to one, the Court decided that there were relevant and sufficient reasons for the domestic authorities not to return the children to their parents’ care because family reunification had not been reasonably feasible, and that, throughout the proceedings, the authorities had had due regard to the applicants’ interest in their children being brought up in line with their cultural, religious and linguistic origin. The Court therefore decided that there was no violation of Article 8 either alone or taken with Article 9.

The Court’s starting point in its assessment was Strand Lobben. The Court reiterated that when public care is imposed restricting family life, a positive duty lies on the authorities to take measures to facilitate family reunification as soon as reasonably feasible. As a guiding measure, a care order should be regarded as a temporary measure, and any measures implementing temporary care should be consistent with the ultimate aim of reunification (para. 119). Generally, the best interests of the child dictate that the child’s ties with its family must be maintained, except in cases where the family has been proved to be particularly unfit. However, it is clearly also in the child’s interest to ensure their development in a ‘sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development’ (para. 121, citing Strand Lobben, paras 207-8). The Court noted the broad consensus, including in international law, that in all such decisions, paramount importance is given to the best interests of the child (para. 120). The child’s interests must come before all other considerations. Article 8 requires the striking of a fair balance between interests of the child and parents if they conflict, with particular importance attached to the best interests of the child which may override those of the parents (para. 120, citing Strand Lobben, paras 204-206).

The ECtHR noted that the authorities had made efforts to check if any members of the wider biological family were capable of taking care of the children, as Austrian law gives priority to placing children with relatives (para. 82, 148). The Court noted that none of them were deemed suitable to take care of the children or were capable of doing so. Further, Austrian law, and foster care practice, include information as to the importance of so-called ‘biography work’, the importance of the family of origin for the child and the child’s personal search for his or her identity (para. 89), all in keeping with respect for cultural, linguistic and religious ties. The Court referred to the numerous proceedings before the domestic courts and whether the authorities, when placing R and M with foster carers and thereafter, had due regard to the applicants’ interest in their children being brought up in line with their cultural and religious origin. There was undisputed information that there are only a very few Turkish and/or Muslim foster families available in the Vienna area, despite active efforts made by the authorities to encourage more to apply. Both children had been placed with foster families open to other cultures and religions (para. 147). The Court therefore accepted that (based on the available information) the domestic authorities had made efforts to place the children with families corresponding to the applicants’ cultural, linguistic and religious background, including the wider biological family, but that no such family had been deemed suitable or available at the time (para. 148-9).

The Court moreover attached importance to the fact that it only appeared to be after the necklace was worn that the applicants raised the issue of Turkish or Muslim identity – at least one and a half years after R had been living with the foster mother. The Court contrasted this with the situation in Abdi Ibrahim where the biological mother specifically expressed her wish to place her child in a Somali or Muslim foster home just over a month after the initial care placement (para. 150). In terms of language, it was accepted that Turkish was the language spoken within the applicants’ home. The Court noted that the best interests of a child who has been taken into care at a very young age would normally require that the child learn their mother tongue as soon as possible and appropriate, in order to maintain their cultural background and to facilitate reunification with their biological family. The Court noted that, according to the Austrian government submissions, Turkish language courses are available free of charge to the applicants’ children, but the applicants do not appear to have requested these (para. 159). Ultimately the Court concluded there was no evidence of indoctrination, and that the choice of foster carers did not deprive the applicants of their right to maintain a relationship with, or pass on their cultural heritage to, their children. The authorities had complied with their positive obligations and provided regular contact with the children, taking into account the applicants’ interest in maintaining their cultural, linguistic and religious bonds (para. 161).

The Dissent

The Turkish government intervened in the case and Judge Hüseynov gave a dissenting opinion because of Austria’s failure, in his view, to take the required measures to preserve the children’s cultural, linguistic and religious identity (para. 166). He cites a lengthy quotation from Abdi Ibrahim stating it sets out the extensive positive obligations on states to maintain the religious, linguistic and cultural identity of children in care which is ‘an obligation of means, not of result’. Therefore, the positive obligation includes, but goes beyond, facilitating the children’s continued contact with their biological parents, their common cultural, linguistic, and religious background, and the prevention of the development of communication barriers, to facilitate the children’s reunification with the parents as soon as possible. The positive obligation requires the prevention of the children being cut off from their cultural and religious roots, especially at a very young age.

Comment

Although finding no violation, Kılıc is consistent with Strand Lobben and Abdi Ibrahim. The ECtHR reiterates that when public care is imposed restricting family life, a positive duty lies on the authorities to take measures to facilitate family reunification as soon as reasonably feasible, guided by the principle that a care order should be regarded as a temporary measure, and the best interests of the child generally mean that the child’s ties with its family must be maintained. But there will be cases when this is not the situation. The Court accepted that the Austrian authorities had made efforts to place the children with families corresponding to the applicants’ cultural, linguistic and religious background, but that no such family had been available at the time. Further, it was only after wearing a necklace with a small cross by one of children, one and half years after the removal of the children from the applicants, that the applicants in Kılıc raised the issue of Turkish or Muslim identity. The Court contrasted this with the situation in Abdi Ibrahim where the biological mother specifically expressed her wish to place her child in a Somali or Muslim foster home just over a month after the initial care placement (Kılıc at para. 150).

While Strand Lobben focused on the need to keep the family preserved, Abdi Ibrahim highlighted the interests of the parents to allow the child to retain ties to their cultural and religious origins. Abdi Ibrahim referenced Article 20 of the UNCRC which states that ‘due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background’. In that case, the applicant was successful because she raised this issue early, the foster parents were described as ‘active Christians who wished to baptise the foster child and to change his name’ and involved permanent adoption as contrasted to the facts of Kılıc (Kılıc at para. 152). All of these cases reflect more recent societal developments and attitudes in favour of maintaining parental links in involuntary removal of children from biological parents in contrast to previous views on adoption. Such societal changes have varied reasons but have at least partially arisen because of the abhorrent abuses of forceable removal of babies, mother and baby homes, indigenous people’s violations in this regard and more.

While Abdi Ibrahim was directly referenced in Kılıc, its facts lead to a different conclusion. In Kılıc, the ECtHR decided that the Austrian authorities did take into account the cultural, linguistic and religious heritage of the applicants’ children, did seek to maintain ties with the family, and the case does not involve adoption. As explained above, the Court stated that it is clearly also in the child’s interest to ensure their development in a ‘sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development’ (121, citing Strand Lobben, para. 207-8). The Court noted the broad consensus, including in international law, that in all such decisions, paramount importance is given to the best interests of the child (para. 120).

The child’s best interests must come before all other considerations. In Kılıc, the evidence appeared to demonstrate that the children were often afraid of their parents with the consequence that it was in the children’s best interests to be placed elsewhere. Efforts had been made to place the children with wider family members and with foster carers from Turkish and or Muslim backgrounds. These were not available. Austrian law and foster care practice include information as to the importance of ‘biography work’, of the biological family’s origins and a child’s search for his or her identity. This is all in keeping with these recent care cases at the ECtHR.

Although not the subject matter of this case, the cases are consistent with the ECtHR’s development of the right to personal identity arising from interpretation of Article 8’s right to respect for private life, and children’s identity rights under international law.[1] While origins, background and heritage are important to identity, what is in the child’s best interests will ultimately trump any placements. What is in the child’s best interests will not always include maintenance of biological ties, including cultural, religious and linguistic heritage from one’s biological parents. These best interests will depend on the facts of the case.

[1] See, for example, J Marshall Personal Freedom through Human Rights Law? Autonomy, Identity and Integrity under the European Convention on Human Rights (Martinus Nijhoff 2009) and Human Rights Law and Personal Identity (Routledge 2014).

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By Anaïs Brucher

Camara v. Belgium is the first of what could be a long series of cases on the enforcement of the right to housing and material assistance of applicants for international protection in Belgium. On 18 July 2023, the European Court of Human Rights (ECtHR) ruled on the case of Mr Camara, who had been left to live on the streets and fend for himself after applying for international protection in Belgium. This happened even though Mr Camara obtained a final order from a Belgian court to provide him with housing and material assistance. The ECtHR ruled that the Belgian authorities’ apparent refusal to comply with the order aiming to protect Mr Camara’s human dignity violated the very substance of Article 6 ECHR. This case highlights an erosion of the rule of law in Belgium, clarifies the ECtHR’s criteria for exhaustion of remedies, and shows once again that the mysterious notion of ‘very substance’ of rights can be impactful in the ECtHR case law.

Facts

The case concerns Mr Camara, a Guinean national who applied for international protection in Belgium on 15 July 2022, three days after his arrival on the Belgian territory. Mr Camara then sought accommodation and material assistance from the Federal Agency for the Reception of asylum-seekers (Fedasil), which he is entitled to under Belgian Law. However, he was turned down due to the Belgian reception centres’ alleged saturation, which left him no choice but to live on the streets. This situation lasted several months despite an immediately enforceable order from the Belgian French-language Labour Court on 22 July 2022 to provide the applicant with housing and support, subject to penalties for non-compliance. The order and penalties were deliberately ignored until 4 November 2022. The order was ultimately enforced due to the ECtHR’s interim measure urging the authorities to comply and meet the applicant’s basic needs. The risk of irreparable damage was then imminent. Beyond suffering from cold and damp weather conditions as well as hunger and health issues, the applicant referred to the scabies epidemic among homeless asylum-seekers worsening due to poor sanitation. The ECtHR has since then granted interim measures to more than 1700 applicants facing a similar situation in Belgium.

Judgment

The applicant complained before the ECtHR that the delay of execution of the Labour Court order was unreasonably long and contrary to Article 6 ECHR and that the conditions under which he was forced to live led to a situation contrary to Articles 3 and 8 ECHR. The ECtHR reasoned as follows.

Article 6 ECHR: there was a clear refusal of the authorities to comply with the domestic court order (§§ 103-122)

The ECtHR has frequently recalled in its case law that Article 6 ECHR protects the implementation of final binding judicial decisions (Ouzounis and Others v. Greece). Following its standard line of reasoning here, the ECtHR analysed whether Fedasil’s delay in executing the Labour Court order took a reasonably long time, considering the applicant’s behaviour, the complexity of the enforcement proceedings and the behaviour of the authorities (Raylyan v. Russia). It noted that Fedasil and the State did not enforce the Labour Court’s order spontaneously but only because of an ECtHR interim measure. As for the complexity of the proceedings, the Belgian government itself admitted that Fedasil’s reception capacity had proven largely insufficient since 2021 to cope with the increasing number of applicants for international protection. The ECtHR recalled that, even though the scale of the challenges faced by the Belgian State was significant and that the authorities had shown efforts to tackle them, the principle of legal certainty remained one of the fundamental aspects of the rule of law. Strikingly, according to the ECtHR, the circumstances of the present case were not unusual. Instead, it revealed a systemic failure of the authorities to enforce final judicial decisions on the reception of applicants for international protection. Therefore, the time they took to enforce the order and protect the applicant’s human dignity could not be accepted as reasonable. There has not been a ‘mere’ delay on the part of the authorities but a clear refusal to comply with the order, impairing the very substance of Article 6 ECHR (§ 121).

Articles 3 and 8 ECHR: an action for damages against the State should have been brought to exhaust domestic remedies (§§ 123-136)

The ECtHR declared the applicant’s complaint under Articles 3 and 8 ECHR inadmissible for non-exhaustion of domestic remedies (Article 35(1) ECHR). Concerning the complaint under Article 3 ECHR specifically, the ECtHR noted that once Fedasil had assigned the applicant with accommodation, he could and should have brought an action for damages against the Belgian State for his time spent on the streets, as such a remedy was available under Belgian law. While the Labour Court had been asked to decide whether the applicant was legally entitled to a right to housing, it had not been asked to examine the facts of the case as a whole. For the ECtHR to rule on the complaint under Article 3 ECHR would have thus led it to do so as a first-instance court.

Commentary

At least three elements stand out while reading Camara v. Belgium: its caveat on the state of the rule of law in Belgium, its refined criteria for the exhaustion of domestic remedies, and its use of the undefined notion of the ‘very substance’ of rights to motivate rulings.

On the state of the rule of law in Belgium

The principle of legal certainty, as one fundamental aspect of the rule of law, requires that the rulings of domestic courts are not questioned when they have finally determined an issue (Brumărescu v. Romania). In that regard, as the French Brussels Bar stressed in its third-party intervention to the case, the challenge opposed to the court order was double in Camara v. Belgium (see § 102). Not only did Fedasil and the State execute the order with unreasonable delay, but they also refused to pay the penalties for non-compliance to which they were condemned. The saturation of Fedasil’s reception centres became so severe that the Belgian government openly admitted using a prioritisation scheme treating in priority the cases where the ECtHR had granted an interim measure. Such a scheme shows more than an apparent and acknowledged violation of the right to a fair trial under reasonable delay by the Belgian authorities. It reverses the subsidiary mechanism under which the ECtHR rests, as it relies on the ECtHR to make a first selection of cases that the domestic authorities will treat afterwards. In that regard, one can be surprised that the ECtHR did not explicitly react to this open attack towards its core principle of subsidiarity.

In light of these elements, the finding of a violation of Article 6 ECHR in Camara v. Belgium was welcome. Not only did it set a hopeful precedent for future cases on the enforcement of asylum seekers’ rights, but it also recalled that the right to a fair trial would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party (Burdov v. Russia). Not guaranteeing the proper implementation of judicial decisions would likely lead to situations incompatible with the rule of law. Even more so when administrative authorities are involved in the proceedings as they form one element of a State subject to the rule of law: their failure to comply with the proper administration of justice would immediately render the guarantees of Article 6 ECHR devoid of purpose (Hornsby v. Greece). Further, and in any case, the ECtHR has often repeated that it is not open to state authorities to cite lack of funds as an excuse for not honouring a judgment debt (Prodan v. Moldova). All in all, Camara v. Belgium is thus an excellent reminder that attacks against the rule of law are to be found in many countries around the world. These are times calling for alertness everywhere.

On the non-exhaustion of remedies in relation to the complaint under Article 3 ECHR

In their partly dissenting opinion, Judges Krenc and Derenčinović convincingly criticised the ECtHR’s reasoning on the non-exhaustion of domestic remedies regarding the complaint under Article 3 ECHR. Amongst other things, they expressed their worries, which I share, about the consequences of such reasoning according to which whenever an ECHR violation ceases, the applicant is bound to bring a domestic action for damages against their State if available under domestic law, even when the violation stopped precisely due to the matter being brought before the ECtHR. As we know, the exhaustion of domestic remedies is usually assessed on the date the application is lodged with the ECtHR. Plus, an applicant who has exhausted one effective and sufficient remedy cannot be required to have tried others that were available but probably no more successful (Aquilina v. Malta). Yet at the time the application before the ECtHR was lodged, there was no indication that an action for damages would have been more effective than the action before the Labour Court to redress the applicant’s situation. Further, and if anything, no domestic jurisdiction had been invited to rule specifically on the violation of Article 6 ECHR either, which did not prevent this part of the application from being declared admissible.

There is more. While the ECtHR’s referral to the action for damages before Belgian courts is legally sound, one can regret its profound disconnection from reality. Suppose the applicant had brought an action for damages before domestic courts on top or instead of asking the Labour Court to urge the authorities to comply with the law. Suppose he had been successfully awarded a monetary sum as just satisfaction for his suffering. In light of Fedasil’s persistent refusal to pay the Labour Court’s penalties for non-compliance, it is unlikely that it would have been willing to or capable of paying this monetary sum and redressing the applicant’s situation any better through an action for damages. Ultimately, it would have only led to a waste of resources and time on behalf of individuals whose most basic needs were unmet.

On another note, the dissenting judges highlighted a gap Camara v. Belgium created in the ECtHR logic of proceedings, as the ECtHR granted an interim measure based on Article 3 ECHR but declared the applicant’s complaint under this provision inadmissible on the merits. Progressively, the interim measures proceedings are thus gaining independence from the merits proceedings. This scenario once again raises the question on the nature of interim measures: should the ECtHR be bound to declare a complaint admissible on the merits because it previously acknowledged the gravity of a situation by granting interim measures? Admittedly, Camara v. Belgium presents an interesting untangling case: it is the execution of the ECtHR interim measure by the authorities that then allowed the Belgian government to raise the exception of non-exhaustion of domestic remedies in relation to Article 3 ECHR.  

On the very substance of the right to a fair trial

It is not new that the ECtHR argues that delays in the execution of a judgment may be justified in particular circumstances but should never impair the substance of the right protected under Article 6(1) ECHR (Burdov v. Russia). While the ECtHR has frequently used this notion of very substance of a fair trial (see Winterwerp v. the Netherlandsin 1979 already), which is not established in the ECHR, its content remains mysterious as Van Drooghenbroeck and Rizcallah demonstrated in 2019. There is no explicit definition of the very substance of Article 6 ECHR by the ECtHR. At most, it has sporadically applied some criteria of content attribution to the substance, such as the very existence of a judicial review (Baka v. Hungary) or the interdiction of excessively high court fees (Laçi v. Albania). Its approach to content is nonetheless variable: while, in some judgments, the ECtHR rules that the essence has a fixed content applicable in all cases invariably (Mnatsakanyan v. Armenia), in others, it is a contextual concept, the content of which depends on the circumstances (Nalbant and others v. Turkey). Similarly, in some cases, the ECtHR considers that rights restrictions must respect the very substance of rights on top of being necessary in a democratic society (Grzęda v. Poland). In other cases, the substance is simply one element of appreciation of proportionality amongst others (Çela v. Albania). It also happens that the notion of very substance is used to determine a state’s margin of appreciation (Teslenko and others v. Germany).

In Camara v. Belgium, the ECtHR did not position itself anywhere along all these lines. Rather, the respect for the substance of Article 6 ECHR was used as the single criteria of validity of the right restriction at stake, without consideration for proportionality or margin of appreciation. Implicitly, the ECtHR indicated here that as soon as the very substance of a right is touched upon, any other test for the validity of rights restrictions becomes superfluous. Yet this necessarily implies defining what the very substance of Article 6 ECHR is, which the ECtHR did not do. Since its reasoning revolved around legal certainty and human dignity, one could presume that those form parts of the very substance of the right to a fair trial. However, such an observation does not enlighten us. Those two notions are just as broad and vague as that of substance. Identifying the circumstances under which legal certainty and human dignity are impacted in such a way as to infringe the very substance of Article 6 ECHR remains subject to the appreciation of judges on a case-by-case basis.

Despite the unclarity surrounding the precise meaning of the notion of substance, we intuitively understand the policy choice of the ECtHR to refer to such a notion rather than to a mere proportionality test in Camara v. Belgium. It helps stress the gravity of the situation and the importance of certain core values, where systemic problems infringing upon human dignity are at stake. And perhaps it is precisely the function that the substance of rights is meant to play in the ECtHR case law: acting as a floating device whenever this fits the ECtHR’s findings (or interests?) best. What is less easily understandable is the ECtHR’s logic (if any) and the legal, political or pragmatic reasons behind its decision to refer to this floating device in some cases discussing difficult situations, but not in others.

Conclusion

The Camara v. Belgium Chamber judgment will become definitive if the conditions under Article 44(2) ECHR are respected. Given the enormous challenges faced by the Belgian authorities, one can hope and yet doubt that the State will be able to take action to resolve its systemic incapacity to comply with its own legislation about the right to housing of applicants for international protection. The situation is highly demanding as more than 1700 other applicants have been granted interim measures while their cases are pending before the ECtHR with similar factual circumstances.

The post Domestic enforcement of the right to housing of applicants for international protection: a (small) victory in Camara v. Belgium appeared first on Strasbourg Observers.

By Eva Sevrin

Ghadamian v Switzerland is one of the rare cases where the European Court of Human Rights decides that the State is under a positive obligation to regularize an irregularly residing migrant. Even more rare perhaps, is the fact that the Court finds this obligation under the right to private life (Article 8). As such, this judgment gives some insight into what the positive obligation to regularize looks like in light of the private life, showing that the finding of a violation is primarily connected to the very particular and individual circumstances of the applicant.

Facts

The case concerns Mr Ghadamian, who was born in Iran in 1940. He came to Switzerland legally when he was 29 years old, and stayed there with a residence permit until 2002. During his residence, he worked as a radiologist, established a family and developed strong social links with Switzerland. Most importantly, he had two sons from his marriage which lasted from 1971 to 1989.

However, his story changed between 1988 and 2004, when he was sentenced cumulatively to five years’ imprisonment for criminal offences such as forgery, threats and property offences, which he alleged were all related to his divorce. One of the sentences was accompanied by an expulsion decision.

When an order to leave the territory was addressed to him in 2000, he did not comply and continued to reside in Switzerland. When the expulsion order became legally binding in 2002, his residence became irregular, which caused him to be sentenced again on multiple occasions to additional months of imprisonment.

In 2008 he requested the revocation of his expulsion order and the granting of a residence permit, but got refused. Additionally, a later request for a residence permit for pensioners was declared inadmissible. Nevertheless, in 2015, he applied again for the same permit. This request got refused as well: the Swiss government noted his criminal offences, his long and continuous irregular residence (which by had lasted more than 14 years) and the plausible indications of a family network in Iran.

His two adult sons are living in Switzerland with their respective families, but no relationship of dependence had been established: even though Mr. Ghadamian was of advanced age, he was in good health and lived independently, both physically and economically. As such, the government argued that there was no obligation to grant him a residence permit under Article 8 of the Convention.

At the time of the ECtHR judgment, Mr Ghadamian was 83 years old and still residing irregularly in Switzerland. He has lived there for 54 years, of which 33 years legally.

Judgment of the Court

The judgment concludes that the refusal to regularize the applicant’s stay in Switzerland breaches his right to private life under article 8 ECHR.

Firstly, the Court states that the applicant cannot rely on his right to family life but rather on his private life, observing that his sons are adults and no additional elements of dependence have been proven.

Following from this, it starts the balancing exercise with the interests of the State. On the one hand, the Court confirms the State’s interest in protecting public order, based on Mr. Ghadamian’s criminal convictions. Despite agreeing with the fact that the applicant has never been accused of any serious offense after 2006, it does take note of his convictions relating to his irregular stay and the conviction for minor theft in 2016. The Court also considers that Mr. Ghadamian has shown bad faith by not complying with the expulsion order and continuing his residence irregularly.

The Court then looks at the expulsion efforts of the Swiss authorities. These consist primarily of the notification of the expulsion order and house searches looking for the applicant’s passport. The Court agrees that there were practical difficulties in forcefully expelling Mr. Ghadamian to Iran, as the government did not have access to his passport. However, the Court still states that it remains “doubtful whether the State took all measures possible” to get access to the applicant’s passport and expel him (§53).

Turning to the interests on the applicant’s side, the Court starts off by emphasizing the “manifestly very long” duration of Mr. Ghadamian’s 54-year long stay (§56). The Court does add that the complete duration of his stay cannot be given the same weight as the years that he has lived with a residence permit. However, seeing that he has established his private life predominantly during his legal stay, these years do carry significant weight. Moreover, he has lived the majority of his life in Switzerland, has integrated into Swiss society, contributed to the “monde du travail” by working as a radiologist and has built his pension rights (§57).

Next to this, the Court looks at the possibility of him enjoying such private life in Iran. The Court states it’s “indisputable” that, even despite his physical and economical independence, a return to Iran would be highly complicated (§59). He would be separated from his children and grand-children and claims to have no surviving siblings there.

These are the main elements that lead the Court to decide that the Swiss Courts attributed too much weight to the general interest and not enough to the specificities of this particular situation. As such, Switzerland overstepped its margin of appreciation. The Court does not see it necessary to discuss whether there is also a violation of Article 13 read together with Article 8.

Finally, no financial compensation is awarded under Article 41. While the Court does not exclude that the applicant sustained non-pecuniary damage, it rules that the mere finding of a violation provides sufficient just satisfaction. It is exactly this point that Judge Serghides criticizes in his partly dissenting opinion. He argues that each case where a violation of a substantive right is found should be accompanied by financial compensation under article 41.

Criteria conundrum

Up to now, the Court has taken different approaches in regularization and expulsion cases of migrants under Article 8. A different set of criteria applies when a ‘settled’ migrant faces expulsion, which is someone who has already formally been granted a right of residence, than when an irregular migrant faces expulsion or is refused to be regularized. The criteria used in the latter can be conceived as more restrictive, as a positive obligation to regularize generally only exists in “exceptional circumstances” if the migrant built his family or private life while the persons involved were aware of the precarious migration status of the applicants (§39 Rodrigues da Silva and Hoogkamer v. the Netherlands).

According to the Court, the Ghadamian’s case is similar to the Jeunesse case, meaning that the criteria that the Court applies are those of an irregularly staying migrant who seeks regularization. These criteria involve, amongst others, the extent of the ties to the host state, the extent to which family life is effectively ruptured, whether there are factors of public order weighing in favour of exclusion and whether family life was created at a time when the persons involved were aware of the precarious immigration status.

These criteria were developed in cases concerning the potential rupture of family life, but the Court applies them to private life cases as well. Sylvia Da Lomba argues that, in the case of settled migrants, the mere copy-pasting of criteria developed in the context of family life to private life cases has led to a failure to develop “assessment criteria that capture the extent of the impact of expulsion on private life”. In the context of regularization under private life, a similar concern could surface. However, Mr. Ghadamian’s case does prove that sometimes, private life considerations can outweigh criminal convictions. Primarily, his relationship with his adult children and grand-children takes the foreground, as Mr. Ghadamian himself also emphasized their primary importance (§30). Next to this, the Court underlines the “manifestly very long duration” of his stay in Switzerland (§56). The Court also pays attention to ‘elements of integration’ or ties with the host country, namely his professional accomplishments, his fourteen-year long current relationship with a Swiss national, close friendships and activities as a volleyball trainer.

This shows that that the Court pays attention to the extent of Mr. Ghadamian’s private life, and what deportation to Iran would mean for the enjoyment of this right. Still, the judgment does not explicitly set out how it applies specific criteria to his case. It seems that the length of the applicant’s stay is rightfully presented as pivotal as it helps to understand what the extent of the interest of the applicant in protecting his private life is. However, the emphasis put on this element is curious as the duration of the migrant’s stay is (formally) not a criterium used in the regularization cases, but rather an official criterium from the settled migrants case law (§71 Maslov). It does make sense to bring duration of stay under “extent of ties to the host state”, but it does also add to the criticism that the use of different sets of criteria exhibits inconsistency and can lead to difficult implementations for domestic courts.

In short, Ghadamian shows again that a sharp distinction between regular migrants and irregular migrants, embodied by the use of different sets of criteria, is not as clear-cut and easily appliable for domestic courts as the ECtHR might want it to be. As such, it seems reasonable to argue in favour of a unified set of criteria for all cases where migrants live under the threat to be uprooted, with special attention to how these should apply to either family or private life (something Klaassen has done here). Otherwise, the case law might remain unpredictable, as what was taken into account and attributed significant weight in Ghadamian might not necessarily be the case for someone in a comparable situation, adding perhaps to what Marie Dembour calls the “lottery-like” effect of Article 8 migrant cases.

A neutral starting point

Additionally, since Pormes the balancing exercise in regularization cases has become even more nuanced. Pormes introduces a possible subcategory of irregular migrants for whom the “exceptional circumstances” do not apply. Due to the lack of knowledge on the applicant’s part of his precarious migration status, the “exceptional circumstances” threshold was found to be inappropriate and the starting point of the balancing exercise had to be “neutral”, meaning that the balancing exercise does not necessitate exceptional hardship in order to tip in the favour of the applicant (§61 Pormes).

In Ghadamian, the Court cites Pormes and states that Mr. Ghadamian’s situation is similarly particular, as he has built the center of his private life during the thirty-three years he resided legally (§46 Ghadamian). However, the Court does not explicitly state that this means that a “neutral starting point” should be used (§61 Pormes). In contrast, it merely states that a full balancing of interests and analysis of all the facts have to be undertaken.

Klaassen has argued that “a neutral starting point should be adopted in all immigration cases” regardless of migration status. While the Ghadamian case is definitely not making a turn into that direction, it reaffirms the idea that regularization should perhaps not be that exceptional as long as the applicant in question established his private life at a time where he wasn’t aware of his precarious immigration status, or during a time where he still had a legal residence right. Even if the applicant does not have a legal right and knows they don’t, having –a plausible – albeit theoretical – claim to regularization at some point, might already impact the scales in the balance (§43 Rodrigues Da Silva and Hoogkamer). Arguably, in this regard Ghadamian does further solidify the contested importance given by the Court to the immigration status of migrants when balancing their rights under article 8.

Moreover, the reliance on quite extreme specificities of Mr. Ghadamian case – such as his old age, extreme long stay and lack of ties to Iran – might implicate that the exceptional circumstances prerequisite is not even formally necessary, as regularization cases under Article 8 still need a very exceptional applicant. In fact, the result still seems quite similar to Jeunesse: all the aspects of the applicant’s story lead cumulatively to a rather ‘extreme’ case. Thus, it might be fair to say that with Ghadamian, the Court’s regularization case law still shows “a concentration of hardship cases”.

Just satisfaction for migrants

Finally, the fact that the Court does not award any damages to the applicant does not come as a surprise. The Court’s jurisprudence on Article 8 cases concerning migrants seems to be inconsistent and unpredictable in considering whether a violation on its own constitutes sufficient satisfaction (e.g. Azzaqui v the Netherlands or Rodrigues da Silva, but contrast with Jeunesse and Butt v Norway).

Admittedly, the judgment does not show whether the applicant motivated thoroughly the extent of his moral damages (§69, compare with for example Jeunesse §125-127). However, two remarks can be made.

Firstly, the Court itself states that “it doesn’t exclude that the applicant suffered non-pecuniary damage” (§71), however it quickly glosses over this. As this is a regularization case, the Court could at least have looked into the fact that his state of irregularity brought criminal law implications with it, and the applicant was even convicted to prison sentences and fines as a result. If the Court rules that refusing Mr. Ghadamian a residence permit is a violation of the ECHR, then perhaps the criminal convictions based on this unlawful refusal (namely his irregular residence) should both be discussed as a potential cause for non-pecuniary damages and as the type of damages that can impossibly be mediated by a post-factum finding of a violation.

Secondly, there is absolutely no interaction with the type of suffering that a state of irregularity might create. In Jeunesse, the Court accepted the claim for compensation based on “the trauma, anxiety and upset she and her family, in particular the children, suffered for an extended number of years” (§127). Here, no mention is made of the prolonged uncertainty Mr. Ghadamian had to endure.

Judge Serghides’ dissenting opinion on this point remains general and principled: a finding of a violation always presupposes moral damages, and thus always warrants a compensation (see for a more in-depth reasoning his excellent dissenting opinion in Azzaqui). However, the question arises whether this lack of just satisfaction isn’t overrepresented specifically in migrant cases. One might wonder whether there is a difference in treatment when it comes to migrants under Article 41, and whether this difference is justifiable. Systematic research seems necessary on this matter.

The post The exceptional case of Ghadamian v Switzerland: Private life and the obligation to regularize migrants appeared first on Strasbourg Observers.

By Mark Klaassen

Mental illness can reduce the weight attached to the nature and seriousness of a crime in the context of balancing interests under Article 8 ECHR in deportation cases. In Azzaqui v the Netherlands, the European Court of Human Rights (the Court) confirmed the Grand Chamber judgment in Savran v Denmark and further clarified how mental illness plays a role in testing compliance with Article 8 ECHR. In this blog, I will first outline the facts of the case and the decision of the Court. After that, I will place the ruling in the context of the jurisprudence of the Court. In my discussion, I will focus on the Dutch practice of hospital orders for convicts with a psychiatric condition, concluding that amendments are required both in the practice of hospital orders and in the way Article 8 ECHR is applied in the revocation of residence permits.

Facts of the case

The case concerns a Moroccan national who was born in 1972 and arrived in the Netherlands in 1982. In 1991, the applicant received a permit for permanent residence. After being convicted for numerous crimes, in 1996, the applicant was sentenced to rape. In the context of the criminal proceedings, a psychiatric report was prepared, finding that the applicant has a personality disorder with schizotypal and antisocial traits and episodic psychotic experiences, creating a significant risk of reoffending. Accordingly, the applicant was sentenced to two-year imprisonment and a hospital order for psychiatric treatment (in Dutch: terbeschikkingstelling, abbreviated as TBS). The hospital order was extended thirteen times until 2016 when the criminal court extended it for one more year after the applicant was to be released to an assisted living facility. At the beginning of 2017 and before his release, the Dutch authorities informed the applicant of the intention to withdraw his residence permit on the grounds that he posed a threat to public order. This severely disturbed the applicant, who violated the conditions for his release by smoking marijuana and drinking alcohol. Later in 2017, the hospital order was extended for one more year because the applicant had broken the conditions for his release. In January 2018, the applicant’s residence permit was withdrawn. In balancing interests under Article 8 ECHR, the domestic authorities considered that the applicant’s interests in continuing his private life in the Netherlands did not outweigh the interests of the general public. Appeals against the revocation of the applicant’s residence permit failed. In 2018, the hospital order was extended by one more year. In its judgment, the criminal court stated that the hospital order was no longer necessary under normal circumstances because of the decreased risk of reoffending. However, the (threat of) deportation creates the risk of psychiatric deterioration, warranting the extension of the hospital order. Accordingly, the hospital order was extended twice after submitting the complaint to the European Court of Human Rights. In his complaint, the applicant argued that the revocation of his residence permit had violated Article 8 because his personal circumstances had insufficiently been taken into account in the domestic procedures.

Judgment of the Court

In its judgment, the Court summarises how the test of Article 8 ECHR in case concerning the revocation of a residence permit should be conducted. First it must, be established whether there is family and/or private life in the host state. The revocation of the residence of a migrant with lawful residence is considered to be an interference with Article 8. This interference can be justified, but this requires balancing the interests of the applicant and the host state. The criteria to be considered in this balancing exercise, outlined in Boultif v Switzerland, include the nature and seriousness of the criminal offence. In Savran v. Denmark, the Court adds that this criterion presupposes that the criminal court assesses whether the applicant has a mental illness and that this may limit the weight attached to the nature and seriousness of the criminal offence. In cases concerning foreigners who spent a significant part of their life in the host state, only very weighty reasons can justify expulsion. Applying this legal framework to the facts of the case, the Court concludes that the crimes committed by the applicant constitute a very serious reason to justify expulsion. However, in the decision to revoke the applicant’s residence permit, the domestic authorities had only considered the seriousness of the applicant’s crimes and had attached ‘decisive weight’ to that. Neither the administration nor the domestic court had taken the psychiatric condition of the applicant considered in determining the weight attached to the nature and seriousness of the committed crimes. The Court observes that the psychiatric treatment of the applicant was aimed at reintegration into Dutch society. At no stage during his treatment, the applicant was prepared to return to Morocco. Finally, the Court considers that the medical background of the applicant should also be taken into account in determining the extent to which it could be expected from the applicant to settle in Morocco and the difficulties that he would encounter there, considering his mental vulnerability. Accordingly, the Court holds unanimously that the Dutch authorities have violated Article 8 ECHR in revoking the applicant’s residence permit.

Role of mental state in the balancing of interests

The present judgment further clarifies mental health’s role in balancing interests under Article 8 ECHR in deportation cases. It was already clear from Savran v Denmark (see this blog post for a discussion) that the applicant’s mental state during the criminal offence should be considered when determining the weight attached to the nature and seriousness of the crime. Because it was apparent from the domestic proceedings in Denmark that this had not been the case, the Court found in Savran that this fell short of the requirements. Even though the Court explained that mental state potentially limits the weight that can be attached to the nature and seriousness of the crime, the extent to which this weight can be limited remained unclear in the Savran judgment. In Azzaqui, the Dutch criminal court held that the applicant had limited criminal culpability because of his mental condition. This shows that the committed crime was partially attributable to the applicant in the context of criminal law. Because in the Azzaqui judgment, the Court did not provide further guidance on this, it is uncertain how the extent of criminal culpability influences the weight attached to the nature and seriousness of the offence. Future jurisprudence must shed light on whether any weight can be attached to the nature and seriousness of the offence in cases in which the criminal court holds that there is no criminal culpability because the applicant was fully incapacitated at the moment of committing the offence. This point was previously raised in the dissent in Khan v Germany, in which Judge Zupančič argued that the Court incorrectly attached weight to the nature and seriousness of the offence because “according to the strict criminal law criteria, an insane person cannot commit a criminal act.”

Furthermore, it follows from the Azzaqui ruling that the applicant’s mental state should not only be considered when determining the nature and seriousness of the offence but also in determining the extent to which it can be expected from the applicant to resettle in the country of origin considering the difficulties the applicant would encounter there because of mental vulnerability. This is a new element in the Article 8 test, as the Court did not mention this in Savran. The present case is atypical in that the Dutch authorities did not consider the difficulties the applicant would encounter after deportation at all. The Court refutes the Netherlands for not considering the difficulties the applicant would encounter in Morocco but does not further specify which circumstances must be considered in taking these difficulties into account. In the present case, the Court attached weight to the fact that during the mental treatment of the applicant, the entire focus had been on reintegration into Dutch society and not on return to Morocco. Also, the applicant’s residence was revoked almost twenty years after the applicant was sentenced. Only after the criminal court had taken steps to prepare the applicant’s return to society, his residence permit was revoked. The Court judges that neither the difficulties in Morocco nor the circumstances of the applicant’s residence permit were considered.

Further guidance is needed on the weight that must be attached to the difficulties foreign nationals with mental conditions would experience upon returning to their country of nationality. This is also relevant for cases where the applicant was not criminally convicted. Deportation itself can trigger a deterioration of the mental state. There can furthermore be insecurities in the availability of psychiatric treatment or the conditions thereof. It would be helpful if the Court further specifies how the difficulties upon deportation must be balanced in subsequent jurisprudence concerning Article 8 ECHR. In Paposhvili, the Court has confirmed a rather strict position in Article 3 ECHR cases. But as Savran and Azzaqui clearly show that the Article 8 test is very different, more guidance from the Court on measuring the difficulties a person with a mental condition would encounter in the country of nationality would be helpful.

The practice of hospital orders in the Netherlands

Unfortunately, the present case does not stand alone. The imposition of hospital orders is standard practice, and the applicant’s mental state does not play any role in revoking residence permits. As was found by the criminal court in the present case, this puts foreign nationals in a deadlock situation. Currently, almost 130 foreigners reside in a psychiatric facility on a hospital order. The (pending) revocation of their residence permit limits how much they can effectively receive effective psychiatric treatment. The Azzaqui judgement makes it clear that reforms are required both in the hospital order practice and in how Article 8 ECHR is applied in domestic immigration law.

The Dutch Council for the Administration of Criminal Justice and Protection of Juveniles, an independent body that is tasked with ensuring that the government enforces sanctions and juvenile protection measures in a humane and legally correct manner, has issued a report on the lack of perspectives for foreign nationals sentenced with a hospital order. The Council observes that it is often practically impossible to return a foreign national with a hospital order whose residence permit is withdrawn for different reasons. Firstly, countries of nationality often do not have a similar arrangement like hospital orders in the Netherlands aimed at safely returning psychiatric patients to society. In some countries, psychiatric treatment is unavailable for certain mental illnesses. Because of that, hospital orders can often not be transferred to the country of nationality. Secondly, countries of origin and foreign nationals often do not cooperate with the responsible Dutch authorities in return procedures. For these reasons, foreign nationals with a hospital order are often unreturnable. At the same time, conditional release to Dutch society is not possible because there is no lawful residence and therefore, the social support required for reintegration into society is not available. This puts foreign nationals with a hospital order facing deportation in a hopeless situation with no or little perspective of reintegration in the Netherlands or the country of nationality. To break this status quo, among other recommendations, the Council advises refraining from revoking residence permits in cases where the foreign national was declared fully incapacitated during the offence because of a psychiatric condition. Furthermore, the Council recommends making it possible for foreign nationals with a hospital order to be conditionally released to achieve reintegration into society. The present judgment demonstrates that a fundamental reform of the hospital order for foreign nationals is necessary to ensure compliance with Article 8 ECHR.

Furthermore, the Azzaqui judgment should trigger an amendment of the way Article 8 ECHR is applied in Dutch immigration law. When a residence permit is withdrawn, compliance with Article 8 ECHR has to be tested ex officio. This is laid down in different levels of national regulation. In caseworker instructions, which are documents providing instructions to the Dutch immigration authorities on making administrative decisions, specific guidelines are provided for applying the various criteria in balancing competing interests. The instructions provide that the circumstances under which an offence is committed must be considered. Domestic judges are however reluctant to take mental illness into account as a factor that limits the weight attached to the nature and seriousness of the offence. This example shows that the caseworker instructions should reflect the way mental illness should be considered in the balancing exercise more precisely, making it clear that it is relevant both for the weight attached to the nature and seriousness of the offence as well as for the difficulties the applicant would encounter in the country of origin.

The post Deportation, mental illness and Article 8 ECHR: a discussion of Azzaqui v the Netherlands appeared first on Strasbourg Observers.

by Meri Baghdasaryan

Earlier in July 2023, a blog post by Jacob van de Kerkhof discussed the shortcomings of the recent Grand Chamber judgment in Sanchez v. France, in which the Court expanded its intermediary liability rules for hate speech posted by third parties to individual users of social media platforms. This piece will not contemplate the majority position nor the (unsound) reasoning behind this extension of liability rules. Rather, it will reflect on the points raised by the dissenting voices on the bench, who offer interesting insights into the Court’s thinking, point out logical gaps in its reasoning and highlight the impact of the ruling on individual rights. This judgment is accompanied by four separate opinions: three dissenting opinions and one concurring opinion.

Facts and Majority Opinion

The applicant is a French politician who was running for election to Parliament in the Nîmes constituency. During his electoral campaign, he made a post on his public Facebook wall about one of his political opponents, F.P. While the post was not inflammatory in itself, two third parties, S.B. and L.R, targeted F.P.’s partner Leila T. in their comments on the post and expressed dismay at the presence of Muslims in Nîmes. Leila T. confronted S.B. and he deleted his comment later that day.  Leila T. also lodged a criminal complaint against the applicant and the two commenters. The Nîmes Criminal Court found all three of them guilty of incitement to hatred or violence against a group or an individual on account of their origin/belonging or not belonging to a specific ethnic group, nation, race or religion. The decision was upheld by the Nîmes Court of Appeal and the Court of Cassation.

The Chamber majority found that the applicant’s conviction for incitement to hatred did not violate Article 10. In their decision, the Grand Chamber upholds the Chamber ruling. The majority note that the interference with the applicant’s right to freedom of expression was foreseeable and pursued the legitimate aim of protecting the rights and reputation of others. With regard to the necessity of the measure, the Grand Chamber concludes that the comments, in this case, qualify as hate speech, targeting a specific group (Muslims) with insulting and hurtful language. Further, the majority define the applicant’s social media presence as ‘fora on the internet where third-party comments can be disseminated’ (Delfi v Estonia). The majority agree with domestic courts that the applicant had started a ‘dialogue’ and should have been aware of the risk an open profile would pose for the dissemination of illegal content in election times. He had then failed to monitor the content that was generated. The majority accept domestic courts’ position that the applicant and the two commenters were not convicted for the same offence: the applicant had failed as a ‘producer’ while the commenters faced criminal liability for hate speech.

For a more detailed overview of the case facts and the procedural history, please refer to Jacob van de Kerkhof’s blog post.

Judge Bošnjak’s dissent: Was the imposition of cascading criminal liability foreseeable?

Judge Bošnjak does not agree with the applicant’s arguments, that the third-party comments are political speech and the monitoring obligation would be an excessive burden on social media users. However, neither does he accept two points supported by the majority, namely, that the applicant’s conviction was foreseeable and that the conviction for one of the third-party comments was proportionate.

In this case, the applicant was held liable as a producer under a cascading criminal liability framework (paras 4-6). The framework is aimed at ensuring that criminal offenses committed in the media do not go unpunished and its application means that if there is no publication director or author, or they cannot be identified, the producer shall be prosecuted as the principal offender (para 8).

Judge Bošnjak disagrees with the majority that it was neither arbitrary nor manifestly unreasonable that the applicant would be convicted when both of the authors of the offensive comments were prosecuted and convicted too. He notes that the majority relied on domestic jurisprudence to assess the interpretation of French provision on cascading criminal liability (paras 9-13). He further adds that the review of foreseeability should be stricter as a criminal conviction is at stake and that ‘the Court should not hide behind the fact that the novel character of the issue at the material time was not in itself incompatible with the requirements of accessibility and foreseeability’ (para 14)

In Judge Bošnjak’s view, the French domestic courts did not develop any standards to support the application of the principle of the independence or autonomy of criminal prosecutions, that allows for proceedings to be instituted against the various actors in the cascade chain. He states that the domestic courts’ case law does not support the view that the producer and the author can be held liable simultaneously (paras 9-13).  Thus, the applicant’s conviction was not foreseeable and therefore, not prescribed by law within the meaning of Article 10. 

While this lack of foreseeability in itself would be sufficient to find a violation of Article 10, Judge Bošnjak also joined Judge Ravarani’s dissent with regard to the finding that the applicant should have deleted one of the third-party comments, considering the factual circumstances of the case as established by the domestic courts (para 18).

Judge Ravarani’s Dissent: Disproportionate Punishment for One of the Comments

While Judge Ravarani agrees with the majority on several points, he disagrees that the applicant’s conviction for one of the third-party comments was lawful, as the applicant deleted it promptly, within less than 24 hours after it was posted, unlike the other comment in question that stayed on the applicant’s page for months. He contends that criminal law should be interpreted strictly. In Judge Ravarani’s view, the majority seems to engage in ‘intellectual acrobatics and pure speculation’ by upholding the applicant’s criminal punishment for his failure to promptly remove the comment in question (para 5). The majority held that the messages ‘were responding to…each other,’ turning it into ‘an ongoing dialogue.’ Judge Ravarani underlines that this is ‘an unacceptable extension of a criminal incrimination by an international court which constantly repeats that it is not a court of fourth instance’ (para 5). He also disagrees that the applicant was prosecuted only for failing to promptly delete the comment in question, as the domestic courts ordered the applicant to pay a fine jointly with the commenter (para 6).

Joint dissent of Judges Wojtyczek and Zünd: Will ordinary social media users be able to foresee the applicability of liability norms to their conduct?

In their joint dissenting opinion, Judges Wojtyczek and Zünd disagree with the majority that there was no violation of Article 10. In their view, the application of French law was not foreseeable and the Court should have read Article 10 in light of Article 7 as the case concerns individual criminal liability for failure to ensure the prompt deletion of remarks made by third parties (para 2). The dissenting judges contend that the majority confused foreseeability with non-arbitrariness, noting that the fact that a decision to apply a law is not arbitrary does not necessarily mean that the law that has been applied is sufficiently clear. In addition, national case law interpreting criminal law must provide accessible and foreseeable explanations, and should not apply extensive interpretations or analogies to the detriment of the defendant (See, Vasiliauskas v. Lithuania).

They further highlight that the Court should have reviewed not the quality of specific rules, but the body of relevant criminal law provisions as a whole (para 3). Moreover, the rules should be clear and foreseeable to an average person or the ‘man on the street’ rather than to a professional (para 4). Under the French regime, a person who starts a Facebook page, that would allow other users to submit comments, would need to review not only the scattered legal provisions but also conduct in-depth legal research into the national jurisprudence to understand if they’d be considered a ‘producer’ or ‘publication director’ and to find out the scope of potential liability. While national courts have established an obligation to promptly remove offending messages upon becoming aware of them, it is unclear what time frame the users should act within to avoid liability (para 5).

Endorsing Judge Mourou-Vikström’s dissent in the Chamber judgment, Judges Wojtyczek and Zünd underline that the obligation to monitor numerous comments on a Facebook page is a heavy burden, especially in the context of a political discussion, potentially diminishing freedom of expression (para 6). Further, they express concern about imposing criminal liability that is in some way based on deeds of third parties. They note that the account holder should be given prior notice, allowed a reasonable time limit to delete the unlawful comments and only be held criminally liable if they fail to comply with these steps (para 6).

Finally, Judges Wojtyczek and Zünd state that the Court’s case law on a politician’s free speech is diverse and complex. If the majority’s ruling transforms politicians using social media platforms into ‘professionals in politics,’ under the Court’s case-law ‘this would be a consideration militating in favor of an enhanced protection of his freedom of expression and in that case’ (para 6). In addition, French authorities failed to demonstrate the necessity to prosecute the Facebook account holder, when they had already prosecuted the authors of unlawful comments. In short, they consider that the relevant French rules are neither foreseeable nor proportionate.

Judge Kūris’ concurrence: Spotlight on the margin of appreciation

Meanwhile, Judge Kūris voted in favour of finding no violation. In his concurring opinion, he shared that his vote tilted toward no violation when he viewed the applicant’s arguments in the light of the circumstances in the case, such as their time and place, and the politically and socially sensitive context (para 1). Highlighting the margin of appreciation doctrine, he notes that even though the domestic regulation of cascading criminal liability is disturbing, and may lead to the penalization of social media users for any ‘lack of diligence,’ the Court cannot review regulations in abstracto, as it is not a supranational constitutional court (para 3). He adds that the Court should have taken a tougher stance on hate-speech-inciting language in other cases too (see, Perinçek v. Switzerland).

Commentary: Are social media users now left in the grey zone?

It appears that all dissenting voices were concerned about the foreseeability of the newly expanded  liability rules on the prompt deletion of hateful comments. As Judges Wojtyczek and Zünd noted, ‘a field as important as social networks calls for legislation that is rather more accessible to those to whom it is addressed’ (Joint dissenting opinion of judges Wojtyczek and Zünd, para 5). It is not a coincidence that the foreseeability and clarity of norms constitute the first prong of the three-part test under Article 10 of the European Convention on Human Rights. It is a fundamental guarantee that enables ordinary individuals without any special knowledge or professional skills to understand the scope and application of norms regulating and interfering with their right to freedom of expression. In this case, the rules governing the imposition of liability are scattered across several domestic regulations and decisions. Interestingly, one of the laws in question was adopted 142 years ago, long before the Internet and social media, and even before the development of modern universal human rights standards on free expression. It goes without saying that regulations are unable to account for all possible relevant scenarios, and domestic case law is tasked with interpreting and clarifying concepts, their scope and application. However, the dissenting judges question the clarity of both domestic norms and their interpretation by domestic courts. Given that social media users face criminal liability for failure to comply with ambiguous rules, the stakes are high.

On the other hand, the burden imposed by the French system endorsed by the majority is heavy as not all social media users have the resources to meticulously monitor and expeditiously remove unlawful content, most notably hate speech – a concept that has not even been defined by the Court. It is unclear what timeframe the users need to comply with and who is within the scope of liability – the commenters and the post author or both. Moreover, these new rules impose criminal liability without a requirement of prior notification to users, be those authors or commenters. In this case, the domestic regulation did not contain such a requirement, leaving it to the domestic courts to conduct a case-by-case assessment. As argued by the dissenters, the Grand Chamber had to exercise ‘mental gymnastics’ to uphold the lawfulness of the French regime without assessing this element. Even though this is a judgment against France and a particular set of facts and domestic regulations is involved, the Grand Chamber’s position and reasoning may become a guiding authority for countries contemplating social media and content governance regimes. While the Court rightfully has consideration for the margin of appreciation owed to the State, it should not overlook the precedential nature of its judgments and their impact on legal systems across member states.

Finally, this judgment opens up an interesting debate about the scope of free expression rights for public officials in the online domain and more specifically, on social media. In particular, the factual background in this case involved electoral context, which in the Court’s case law takes special significance in the context of free expression (see, Magyar Kétfarkú Kutya Párt v. Hungary). But how do we define public officials? Would all citizens running for office be treated with the presumption that they have enough resources to monitor and manage their social media pages? Once again, given the criminal liability involved, this may deter certain potential candidates from fully making use of online platforms to communicate with their constituents or result in them giving up the idea of running for office altogether. The stakes are high, again.

Conclusion

With its ruling in Sanchez v. France, the Grand Chamber introduces new responsibilities for social media users, including those using their social media pages for political campaigns. However, the dissenting judges underline the lack of foreseeability and the alarming ambiguity of the new intermediary liability rules with regard to how individuals should regulate their conduct, especially as criminal liability is involved. Yes, fighting hate speech online is a critical mission. But in the age of widespread social media regulation, the application of such a burdensome framework could have a chilling effect on freedom of expression.

Disclaimer: The author of this post, Meri Baghdasaryan, engages with the Strasbourg Observers voluntarily and in her personal capacity. The views and opinions expressed here do not reflect on the organizations Meri is affiliated with.

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By Rianne Herregodts

In Grosam v. the Czech Republic, the Grand Chamber of the European Court of Human Rights concludes the Chamber of the First Section of the Court has gone too far in its characterisation of the complaint of Mr. Grosam. The judgment clarifies what it means to be ‘the master of characterisation’. It certainly doesn’t give the Court the power to ‘substitute itself for the applicant and formulate new complaints’ (para. 91).

The case

Mr. Jan Grosam, the applicant, was an enforcement officer in the Czech Republic. In 2010, a disciplinary complaint was lodged against him by the Minister of Justice. The complaint held that Grosam had committed a disciplinary offence by drawing up an enforcement officer’s record attesting to the recognition of a debt by an unauthorised person. The complaint was heard by the disciplinary chamber of the Supreme Administrative Court (‘the disciplinary court’). This chamber was presided by a judge of the Supreme Administrative Court, with another judge as the deputy president. The other four members of the Chamber were lay judges: two enforcement officers, a lawyer and a professor of law. In the verdict, the applicant was found guilty of the aforementioned misconduct. The disciplinary court imposed a fine of approximately 13,5 thousand euros on Grosam. Grosam turned to the Constitutional Court, which dismissed his complaints. Grosam subsequently lodged a complaint with the ECtHR.

Grosam’s complaint contained two main lines of reasoning. Firstly, he stated that article 6 (1), (2) and (3)(d) of the Convention had been violated. He argued that the presumption of innocence, the duty of the court to gather evidence and the in dubio pro reo principle had been violated, and criticised the disciplinary court for not following up his offer to provide additional evidence. Secondly and most importantly, Grosam maintained that the impossibility to appeal the decision of the disciplinary court violated his rights under article 2 (1) of Protocol 7. In the application form, he stated that ‘disciplinary proceedings should be assessed as proceedings on criminal charges’. Grosam also explained why he believed that the exceptions of article 2 (2) of Protocol 7 did not apply to his case. According to him, ‘it is not possible to accept the disciplinary chamber of the Supreme Administrative Court as the highest tribunal under article 2 (2)’. Decisive for Grosam in this respect was the composition of the disciplinary chamber, in which lay assessors formed the majority.

The Chamber

The Chamber of the First Section of the Court saw it fit to ‘reframe’ the second part of Grosam’s complaint. In para. 70, the Chamber declares that, ‘being the master of the characterisation to be given in law to the facts of the case, [it] views the latter complaint as one primarily falling under Article 6 (1) of the Convention, especially given that a “tribunal” within the meaning of Article 6 is also one within the meaning of Article 2 of Protocol No. 7 […].’

This decision of the Chamber greatly affects the assessment of the complaint. Under article 2 of Protocol 7, the Court would have had to answer three questions. First, whether the procedure involved a criminal charge (i.e. is article 2 of Protocol 7 applicable?). And if so, whether Grosam had the possibility to appeal the judgment of the disciplinary court. Third, if not, whether any of the exceptions of art. 2 (2) applied. Previous caselaw shows a disciplinary procedure, as a rule, doesn’t constitute a criminal charge (see for example Müller-Hartburg v. Austria). By viewing this part of Grosam’s complaint as falling under article 6 (1), the lack of a criminal charge no longer threatened the viability of the complaint. It was enough for the disciplinary procedure to involve a civil right. The Chamber then discussed whether the disciplinary court even was a tribunal at all.

The Chamber held that the civil limb of article 6 applied to the disciplinary proceedings of Grosam, but not the criminal limb (para. 87-99). The independence and impartiality of the disciplinary court was found lacking, mostly because of the (pre-)selection process of the lay assessors (para. 129-130) and the ties between the executive (the minister of Justice) and enforcement officers, which were thought to contain insufficient guarantees against outside pressure (para. 136-139). Since there was no possibility to appeal the decision, there was no second-tier court that could remedy the shortcomings of the first stage of proceedings (para. 147-149). With the smallest possible majority (4:3) the Chamber concluded that article 6 (1) of the Convention had been violated. The remaining statements Grosam made about violations of article 6 of the Convention did not succeed.

According to the dissenters, Judges Eicke, Koskelo and Wennerström, the Chamber decided the case on a point that had not been raised by the applicant in national proceedings and that had not been raised by the applicant in his application to the Court. They pointed out that Grosam’s reasoning was based on the incorrect assumption that the disciplinary proceeding could or should be seen as a procedure that concerned a criminal charge. He did not object to the composition of the disciplinary court, let alone to the (pre-)selection of lay assessors or the guarantees against outside pressure. Also, the dissenters objected to the judgment in so far as it was based on an assessment of the domestic legislation in abstracto. The majority focused their attention on circumstances which were not relevant for the composition of the disciplinary chamber that sat in Grosam’s case. In their concluding remarks, the dissenters summarised their discontent with the majority’s decision as follows: ‘We would like to point out that it is also a part of the rule of law that courts, including this one, should respect the basic limits of their function’ (para. 26).

The Grand Chamber

The Grand Chamber reiterates that a complaint has to contain factual allegations and legal arguments. The latter means the complaint should indicate what act or omission entailed a violation. An applicant can’t assume the facts will speak for themselves: he or she must focus the Court’s attention by indicating what behaviour constituted the violation of an article of the Convention or the Protocols (para. 88-90). The Court has ‘no power to substitute itself for the applicant and formulate new complaints simply on the basis of the arguments and facts advanced’ (para. 91).

The Grand Chamber observes that Grosam had not complained of the composition of the disciplinary court and had not stated that the disciplinary court doesn’t meet the requirements a tribunal should meet. The Chamber reformulated the complaint beyond its original scope and thereby exceeded its powers (para. 95-97). It is not necessary to determine whether the reformulated complaint had already been discussed during domestic proceedings, as this part of the complaint had not been brought forward by Grosam within the timeframe set by article 35 of the Convention.

The Grand Chamber summarises under what conditions the civil limb and the criminal limb of article 6 of the Convention apply to disciplinary cases (para. 108 and para. 113). Like the Chamber, the Grand Chamber sees the disciplinary case against Grosam as one involving a civil right but not a criminal charge (para. 109-110 and 117-120). As a result, article 2 of Protocol 7 is not applicable to the disciplinary procedure of Grosam. The Grand Chamber adds, ‘by way of observation, that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation’ (para. 136). The complaints raised by Grosam under article 6 fail, too. Doing what the Chamber should have done, the Grand Chamber unanimously declares the complaint inadmissible.

Analysis

Individual applications or complaints under article 34 of the Convention must contain, on the basis of rule 47 of the Rules of Court, several elements. These include ‘a concise and legible statement of the facts’ and ‘a concise and legible statement of the alleged violation(s) of the Convention and the relevant arguments’ (Rule 47 (1) (e) and (f)). These statements should enable the Court to determine the scope of the complaint without reading other documents (Rule 47 (2) (a)).

In previous caselaw, the Grand Chamber has repeatedly referred to its role as ‘master of characterisation’, explaining that: ‘since the Court is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant, a government or the Commission.’ Referring to the jura novit curia principle, the Court would then state the complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on.’ (See for example: Guerra and others v. Italy, para. 44; Scoppola v. Italy (no. 2), para. 54).

The Court can thus characterise in law the facts being complained of by basing its decision on a provision of the Convention not relied on by the applicants (para. 125). This for example means that if the applicant has not invoked a specific provision, it is left to the Court to find the relevant provision (Vilenchik v. Ukraine, para. 39-40). Perhaps more controversially, it means the Court may assess the case under a different provision than the provision or provisions the applicant has relied on. That is what happened in S.M. v. Croatia. There, the applicant relied on articles 3, 6, 8 and 14 of the Convention, but the Court determined whether article 4 of the Convention applied to this complaint on human trafficking (para. 219, see the post by Vladislava Stoyanova about this judgment). The Court would exceed its jurisdiction if it would assess facts that have not been brought forward in the complaint (Radomilja and others v. Croatia, para. 124 and 126; also: S.M. v. Croatia, para. 219; Navalnyy v. Russia, para. 63-65).

As these examples show, the role as master of characterisation may be efficient: it allows the Court to redirect similar complaints to the same provision, thereby streamlining and solidifying its caselaw on that topic. It may also support applicants that have little knowledge of the content of the Convention and the Protocols, let alone of the Court’s caselaw.

However, in the case of Grosam, the Chamber morphed the original complaint into an altogether different one. Grosam did not complain of the composition of the disciplinary court. The composition was relevant only for his statement that the disciplinary court was not the highest tribunal in the meaning of article 2 (2) of Protocol 7. The Chamber altered the legal arguments brought forward in the complaint and thereby failed to exercise judicial restraint. A complaint is not an invitation to the Court to rummage through the facts to see what other allegations the applicant could possibly have made and to read these into complaint. Although exercising judicial restraint, on occasion, may perhaps feel as if it limits the Court’s effectiveness, respecting the limitations of the Court’s role guards its legitimacy.

The Grand Chamber conclusion that the Chamber exceeded its powers is a just and welcome clarification of the meaning of the role as master of characterisation. In my opinion, two aspects are important for the future development of this role.

The first aspect has to do with why the Chamber thought it fitting to fulfil its role with such (excessive) enthusiasm. The Grand Chamber doesn’t speculate about this and the Chamber judgment is silent, too. In any case, Grosam hadn’t failed to indicate which article he thought had been violated. Nor had Grosam invoked so many articles that the Court needed to reorganise his complaint to be able to deal with it in an efficient manner. We do not know why the Chamber acted like it did in this case. In an article published just before the Chamber judgment, Mathias Möschel has attempted to identify the factors that influence the readiness of the Court to perform its role as master of characterisation. One factor would be whether the judges see the Court’s role as that of providing protection beyond the individual case. Another would be if the judges have a negative view on the judicial system the caselaw is about. The question remains what motives are acceptable reasons for playing the card of master of characterisation at all. This will hopefully be addressed in future caselaw.

The second aspect concerns the consistent fulfilment of the role. In their joint partly dissenting, partly concurring opinion in Radomilja and others v. Croatia, Judges Yudkivska, Vehabović and Kūris pointed out that: ‘In order to attain legitimacy, the Court’s “mastering” must be consistent in choosing a narrower or broader, a stricter or more lenient approach.’ (para. 3). I’d like to add that the Court should be not just be consistent in what it Court does as well as in under which circumstancesit chooses to fulfil its role – or not.

Conclusion

A complaint contains the factual allegations and the legal arguments of the applicant. In the case of Grosam, the Chamber recharacterised the complaint in such a way that it transformed a legal argument of the applicant into an altogether different one, thereby exceeding its powers. The Grand Chamber seems to have done what the dissenters hoped for: it confirmed one of the ‘basic limits’ the Court has to respect. The judgment emphasises that however strongly inclined the Court may be to address a topic, perhaps in the general interest, the Court has to stay within the scope of the complaint.

This judgment clarifies the limitations of the role as master of characterisation and the jura novit curia principle. Strasbourg watchers may monitor future caselaw for discovering the Court’s motives for fulfilling its role as master of characterisation and the consistency with which it does or doesn’t make use of its role.

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By Merel Vrancken

In the case of T.H. v. Bulgaria, the European Court of Human Rights finds that a school provided sufficient reasonable accommodation to satisfy the needs of a pupil with a disability and that no discrimination or harassment existed. This judgment follows several other cases about the inclusion of pupils with disabilities in mainstream education and requests for reasonable accommodation. However, there are a few notable differences between this judgment and the Court’s past judgments, specifically regarding its interaction with the international legal framework and the principle of inclusive education. Aside from this aspect, the current post will discuss the distinction the Court makes between direct discrimination and reasonable accommodation, which creates confusing consequences.[1]

Facts

A test at the beginning of his first year of primary education shows that the applicant, T.H., has behavioural problems and cognitive dysfunctions which could complicate the process of learning and adapting at school. Consequently, the school takes measures to accommodate his particular situation from the beginning of the first school year. Nevertheless, throughout the year, the problems get worse. T.H. disrupts classes and acts aggressively towards his classmates. This leads to a meeting of the pedagogical council, which discusses his behaviour and imposes a disciplinary sanction consisting of a warning. At the beginning of the second year, T.H. is diagnosed with a hyperkinetic disorder and a specific developmental disorder of scholastic skills, by reason of which he has special educational needs. In response to this, the school takes extra measures to accommodate him in consultation with his parents. However, incidents keep on happening in T.H.’s class and school environment. After a series of incidents, fellow students’ parents complain to the head teacher about T.H.’s behaviour.

In the middle of the second school year and following a recommendation to this effect by a child psychiatrist, T.H. interrupts his schooling. During the following school year, he repeatedly changes schools until he finds a school where he settles after following an individual education plan. The applicant’s parents complain about the first school’s treatment of T.H. before the National Ombudsman and the Commission for Protection from Discrimination. Although the former states that the school has provided insufficient accommodation for T.H., the latter is of the view that the school has not discriminated against the applicant.

Judgment

The ECtHR begins its reasoning with a summary of the general principles. It repeats that Article 14 of the ECHR prohibits discrimination on the basis of disability, that a failure to reasonably accommodate persons with a disability constitutes discrimination and that the notion of reasonable accommodation should be interpreted in accordance with its meaning under Article 2 of the International Convention on the Rights of Persons with Disabilities (CRPD). In applying these principles, it distinguishes between two aspects of the complaint. On the one hand, it analyses whether his teachers have directly discriminated against the applicant on the basis of his disability by unjustifiably treating him less favourably than others on the grounds of his disability. On the other hand, it investigates whether the school has provided sufficient reasonable accommodation for T.H.

Considering the possible direct discrimination, the Court accepts that the applicant was in a relevantly similar situation to other children without a disability and that he had been treated differently on the basis of his disability. At the same time, the way the head teacher handled the incidents the applicant complained about was reasonably justified (§§ 109-113). Also, Court is not convinced by the harassment claim, as the available evidence leads to the conclusion that the applicant’s teacher and the head teacher repeatedly reacted in a justified and proportionate manner to T.H.’s behaviour (§§ 114-117).

Concerning the question of reasonable accommodation, the Court remarks that before and after T.H.’s diagnosis, measures were taken to ensure his effective education. The school set up various meetings with the parents and its pedagogical advisor was involved. After the diagnosis, an individual educational plan was set up in consultation with and with amendments by the parents. Thus, the school took several measures to accommodate T.H.’s needs (§§118 – 120). These measures did not have the effect of solving or diminishing the behavioural problems and, after medical advice, the parents decided to remove T.H. from school. In this connection, the Court indicates that the difficulties T.H. encountered were to some extent caused by his parent’s behaviour, who resisted the measures proposed by the school and insisted that all the problems stemmed exclusively from the attitude of the head teacher, the applicant’s teacher, the school personnel and the other pupils. Adopting this attitude jeopardised the relationship between the parties concerned (§ 121). The Court accepts that the school did implement reasonable accommodations to see to T.H.’s special needs. As his behaviour also had a direct negative influence on the safety and well-being of the other pupils and their possibility of receiving effective education, the head teacher and the applicant’s teacher needed to engage in a difficult balancing act between his interests and those of his classmates. In this respect, the ECtHR repeats that Article 14 of the Convention requires reasonable accommodation. This does not indicate that every possible adjustment should be made to alleviate the disparities resulting from someone’s disability, regardless of the cost or the practicalities involved (§122). There has thus been a violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1.

Commentary

In the case at hand, the Court analyses whether there has been discrimination, be it direct or as a consequence of a lack of reasonable accommodation, in the organisation of the education of a child with a disability. This post will discuss two aspects of the judgment that stand out. A first aspect is that, in contrast to earlier cases on similar questions, this judgment does not refer to the relevant international legal framework concerning the education of pupils with disability and their right to reasonable accommodation, nor to the principle of inclusive education. As will be argued, this is a significant flaw in the Court’s reasoning. Second, the judgment makes a confusing distinction between the allegations of direct discrimination and those of a lack of reasonable accommodation. The applicant complained about both types of discrimination based on largely similar facts, but the Court chose to separate them in its analysis.

The international legal framework and the principle of inclusive education

The issue before the Court in the case of T.H. v. Bulgaria is very similar to that seen in earlier cases about education for pupils with a disability, namely what degree of reasonable accommodation of pupils with disability in mainstream education can be expected of a state (see Çam v. Turkey (2016) + blogpost, Enver Şahin v. Turkey (2018) + blogpost, Stoian v. Romania (2019) + blogpost and G.L. v. Italy (2020) + blogpost). The Court adjudicates this question in light of the prohibition of discrimination laid down in Article 14 of the ECHR, taken in conjunction with Article 2 of Protocol No. 1. Similar to previous cases, the Court explicitly refers to Article 2 of the CRPD for the interpretation of ‘reasonable accommodation’. Notwithstanding this sole reference, the remainder of the judgment remains void of references to the international legal framework. In previous judgments, the Court explicitly and generously referred to treaties such as the CRPD, the Revised European Social Charter and other binding and non-binding instruments (see for instance Çam at §§ 37-38; G.L. at §§ 20-31). Discussing the relevant international legal framework has the advantage of putting the obligations under the Convention in context, as the Court aptly illustrated in the notable judgment of G.L. v. Italy (see §§ 62-69 + blogpost).

The importance of such referencing is moreover apparent when noticing that its omission has led to the principle of inclusive education being utterly absent from the Court’s reasoning. Although the facts of the case show that this pupil was educated in a mainstream school and had a right to reasonable accommodation due to his special educational needs, the Court omits to mention the principle of inclusive education that is hereby applied. It can be deduced from the facts that Bulgaria is attempting to provide inclusive education for persons with a disability, by implementing the idea that pupils with a disability should be educated in mainstream education and accompanying this with individual educational plans and auxiliary measures. The request for reasonable accommodation thus is a part of this transition to inclusive education. In contrast to earlier cases, this last concept is not explicitly mentioned in any part of the judgment.

An analysis of the degree to which education is effectively organised in an inclusive way would more clearly contextualise the obligations that stem from reasonable accommodation. After all, inclusive education, as defined under the CRPD, aims to eradicate general, structural barriers for pupils with a disability in mainstream education. Reasonable accommodation, on the other hand, consists of individual measures for a student when the structural adjustments prove to be insufficient in their individual situation. By applying this framework to the case at hand, the Court could have pointed more clearly to what Bulgaria has already achieved in guaranteeing effective education to students with disabilities and why the reasonable accommodation measures, in this case, were sufficient. As it is, the judgment does not provide much information on the extent to which Bulgaria has complied with its obligations concerning inclusive education. Therefore, it is impossible to state with any degree of certainty whether such an analysis would have led to the same substantive outcome, namely that the state had met its duty of reasonable accommodation.

Engagement with the international legal framework seems to equally bother the Court in other cases concerning disability rights. In the specific context of education of persons with disabilities, the Court has in earlier cases been reluctant to recognise a right to inclusive education under the ECHR. As in the case at hand, the Court consistently only applies the duty of reasonable accommodation. This can be contrasted with recent judgments concerning the segregation of Roma children in education, where the Court has repeatedly underscored the importance of inclusive education as ‘the most appropriate means of guaranteeing the fundamental principles of universality and non-discrimination in the exercise of the right to education’ (Elmazova and Others v. North Macedonia, § 89; Szolcsán v. Hungary, §69). The Court thus seems to be heading in different directions concerning inclusive education of pupils with a disability and Roma pupils.

Direct discrimination vs. reasonable accommodation

A second notable aspect of this judgment is that the Court divides the case into a complaint of direct discrimination and one of reasonable accommodation. The Court acknowledges that these two points largely overlap when making this distinction. In addition, it leads to a paradox. When examining direct discrimination, the central question is whether a person has been treated less favourably than a person in a relevantly similar situation, but without a disability, without an objective and reasonable justification. When looking into the request for reasonable accommodation, the logic is reversed: as a pupil with a disability is in a relevantly different situation from its fellow pupils without a disability, this pupil has a right to reasonable accommodation, i.e. differential treatment. When following the logic of the Strasbourg Court, the applicant is simultaneously in a relevantly similar situation as his fellow pupils and in a relevantly different situation from those same fellow pupils. He concurrently has a right to similar treatment and to differential treatment.

The Court’s distinction can be explained as follows: when examining the complaint of direct discrimination, it takes into account incidents that have a negative effect on the applicant, and therefore disadvantage him. In its analysis of reasonable accommodation, the Court focuses on positive measures, i.e. measures implemented to help the applicant. However, this distinction comes with difficulties, as can be shown by discussing one particular incident: the meeting of the pedagogical council and the ensuing disciplinary sanction. The Court accepts that this was taken to advantage T.H., namely with the aim of directing his behaviour in a positive direction (§ 119). It can therefore be seen as a measure of reasonable accommodation. However, the Court scrutinises that same measure in its analysis of direct discrimination, thus considering it to have had a negative impact on the applicant (§ 113). The conflicting consequences that result from this distinction between direct discrimination and reasonable accommodation indicate that the ECtHR did not handle the allegations of different types of discrimination in the case at hand in the best possible way. The distinction that was made is confusing, to say the least.

Conclusion

Although the outcome of T.H. v. Bulgaria does not seem unwarranted, it is possible to identify some flaws in the Court’s examination of the case. First, the ECtHR omits reference to the relevant international legal framework and to the principle of inclusive education, which is essential for understanding the case and could have a determinative impact on its outcome. Second, the Court draws a distinction between direct discrimination and reasonable accommodation, but analyses both concepts in light of largely the same facts. This creates a confusing, paradoxical situation. In both respects, the Court could have done better.

This commentary can, however, end on a positive note. In the case before us, the school had implemented measures of accommodation already before the applicant had been diagnosed. The measures were amended and became more tailored to the applicant’s situation after the diagnosis. In this respect, the school’s actions were in line with the requirements of reasonable accommodation of the CRPD – and, as the Court purports to follow this interpretation, those of the ECHR. Under the CRPD, measures of reasonable accommodation cannot be dependent on an official diagnosis of a disability but instead need to be in place as soon as a pupil has need of them. As the Court does not make any explicit conclusions on this aspect of the case, it is important to highlight that in doing this, the school acted fully in accordance with the right to reasonable accommodation. Although the Court does not present us with its finest work in this case, it is encouraging to see that Bulgaria is taking real steps towards the inclusion of pupils with a disability in their mainstream education and seems to be putting in the required effort to achieve the transition to inclusive education with flying colours.

[1] This text is based on a Dutch version of this blog, forthcoming on EHRC Updates.

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Self-confident people are usually not too concerned about what other people post on their social media pages. But they should be. On 15 May 2023, the Grand Chamber of the European Court of Human Rights (‘ECtHR’ or ‘the Court’) released its judgment in the case of Sanchez v France, following an earlier Chamber decision which found no violation of Article 10 of the European Convention on Human Rights (ECHR).  In a lengthy decision, the Grand Chamber explored the limits of freedom of expression in the context of hate speech in an election-related setting and intermediary liability for actors on the internet. Building on earlier case law with respect to hate speech in a political setting (Perincek, Jersild and Soulas and others), the Court significantly expanded the liability for intermediaries for third-party content on the internet compared to earlier case law in Delfi v Estonia. This contribution argues that Sanchez v France takes an untenable position regarding third-party liability for content on social media.

Facts

The applicant, Julien Sanchez, is a politician for the National Rally (a far-right party in France)and mayor of Beaucaire. While running for election to Parliament for the party in the Nîmes constituency, he posted a message about one of his political opponents, F.P., on his publicly accessible Facebook wall which he ran personally. The post itself was not inflammatory and only his friends could comment on it. Two third parties, S.B. and L.R, added a number of comments under his post, referring to F.P.’s partner Leila T. and expressing dismay at the presence of Muslims in Nîmes. Leila T. confronted S.B. who she knew personally and he deleted his comment later that day.

The next day, Leila T. lodged a criminal complaint against the applicant, Mr. Sanchez, as well as those who wrote the offending comments. The Nîmes Criminal Court found them all guilty of incitement to hatred or violence against a group or an individual on account of their origin/belonging or not belonging to a specific ethnic group, nation, race or religion. The Nîmes Court concluded that by creating a public Facebook page Mr. Sanchez had set up a service for communication with the public by electronic means on his own initiative, for the purpose of exchanging opinions. By leaving the offending comments visible on his wall, he had failed to act promptly to stop their dissemination and was guilty as the principal offender. (para 18) In its decision, the Nimes Criminal Court noted that only ‘friends’ could comment on the applicant’s Facebook wall and that being a political actor, he had to be more thorough in monitoring his comments, as he was more likely to attract polemical content.

This decision was upheld by the Nîmes Court of Appeal which held that the comments had clearly defined the group concerned (Muslims), associating them with crime and insecurity in the city in a provocative way. The Court of Appeal also noted that by knowingly making his Facebook ‘wall’ public, the applicant had assumed responsibility for the offending content. Mr. Sanchez’ appeal to the Court of Cassation on points of law was rejected. He then turned to the ECtHR, alleging that his criminal conviction for incitement to hatred violated Article 10.

The Chamber majority found that no violation had occurred.

Grand Chamber Judgment

The Court had to decide whether the applicant’s criminal liability for hosting third-party comments containing hate speech on his social media page is an infringement of his right to freedom of expression, and if so, whether that infringement was lawful, served a legitimate aim and was necessary in a democratic society. In this case it is undisputed that the imposition of criminal liability interfered with his freedom of expression. As to the lawfulness of the interference, the Court observed that applicant was held liable as a ‘producer’ for comments under section 93-3 of Law no. 82-625. The concept of a ‘producer’ was sufficiently defined in French case law. It is undecided at what point a ‘producer’ has to have had knowledge of unlawful remarks in order to be held liable for them. Contrary to the applicant’s arguments and in line with Delfi v Estonia, there is no requirement for the prior notification of the producer under domestic law. And Therefore, knowledge of illegal comments has to be decided on a case-by-case basis. Even though social media account holders have not been held liable of illegal comments before, this does not violate requirements of accessibility and foreseeability in law.

Further, the Court found that the interference served a legitimate aim: the protection of the rights and reputation of others (Perincek). Although political speech calls for an elevated level of protection, it may still be subject to restrictions and penalties – even during electoral periods. Politicians in particular have a responsibility not to incite hatred and must avoid advocating for racial discrimination (Feret). In order to judge the necessity of the infringement, the Court reiterated its previous findings from Delfi to outline the factors required to attribute liability to an internet intermediary for speech by third parties: (i) the context of the comments (ii) the measures applied by applicant to prevent or remove defamatory comments, (iii) the liability of the actual authors of the comments as an alternative and (iv) the consequences of domestic proceedings for the applicant.

Applying these criteria, the Court considered the comments in this case to qualify as hate speech, targeting a specific group (Muslims) with insulting and hurtful language. The electoral setting in which the comments were made meant that they were more likely to spread, and creating a larger risk of xenophobia. The comments were made on the applicant’s social media page. The Court disagreed with the labelling of the applicant as a ‘large professional Internet news portal,’ but found that his social media presence fell in the category of ‘fora on the internet where third-party comments can be disseminated’ (Delfi). The French criterium of ‘producer’ creates a shared liability regime, allowing both original posters and intermediaries to be held liable. This requires a level of content moderation from the intermediary. The required level is highly context-dependent; domestic courts are best situated to determine the required level of responsibility.

The Nîmes Court was correct in finding that the applicant must have been aware of the risk an open profile would pose for the dissemination of illegal content in election times. In his original post, the applicant had opened a dialogue which the litigious comments were part of. His liability was not based specifically on one comment, but on the dialogue as a whole. The French courts were justified in finding that he had erred in his responsibilities, by virtue of his public office and his choice to make his Facebook wall public during an election period, by starting a dialogue resulting in the spread of hateful content and failing to monitor the content generated appropriately. The decisions were proportional in light of the relatively small pecuniary damage suffered by the applicant (EUR 4,000). As to the possibility of only holding the original posters liable for the litigious comments, the Court found that applicant and the original posters were not held liable for the same crime; the applicant was liable for failing in his duties as a ‘producer’, whereas the commenters were directly criminally liable for hate speech. International law does not monitor who is held liable for what crime; the Court only oversees whether that criminal liability leads to an unjustifiable infringement of an applicant’s freedom of expression.

Analysis

Three points stand out in this decision. Firstly, the Court found that the litigious comments were ‘clearly unlawful’ due to their hateful nature. Due to the lack of a clear definition for hate speech – as the Court itself acknowledges – this is a difficult position to defend. It is clarified in the decision that the comments clearly single out one minority group (Muslims) and even one person (Leila T.). The applicant argued that the comments were uttered in an electoral context, meriting greater protection of freedom of expression; the Court found the opposite. During an election, the impact of xenophobic and racist discourse is greater, especially on the internet due to its greater possibility for spreading. (paras 153, 156) The vulgar tone of the comments as well as the context in which they were made, rendered them ‘clearly unlawful’. The manifest unlawfulness of the comments, particularly in a sensitive electoral setting, is up for debate, but very much dependent on the local setting. I agree with the Court that local courts, such as the Nimes Court, are best equipped to deal with such questions. (para 189)

The consequence of the ‘clear unlawfulness’ of the comments is that applicant is responsible for removing them with sufficient expedience. The Court finds that by virtue of his political office and his public Facebook timeline, the applicant has more responsibilities than the ordinary internet user in monitoring content on his social media page – thus, he has to remove clearly unlawful content with sufficient expedience. In my opinion, the French Court jumped through a number of hoops in inferring liability from these circumstances, labelling the applicant as a ‘producer’ under Law no. 82-625. This ruling creates a scenario in which every person – naturally dependent on their public role and the accessibility of their social media presence – who owns a public Facebook profile might bear responsibility for the comments posted thereon. Especially for larger Facebook profiles that is problematic, requiring significant resources to monitor all traffic. This creates an even larger tension when the Court stretches the notion of ‘clearly unlawful’, or ‘manifestly unlawful’ content to include borderline cases of hate speech, which may be difficult for private individuals to identify, especially if those private individuals are not well-versed in the intricacies of free speech law. The resources required to monitor all traffic could be significant, dependent on the timeframe that the Court expects illegal content to be removed in. In this case, the Court mentions that requiring applicant to remove content in any timeframe shorter than 24 hours after posting would be excessive. It does not clarify another timeframe, however. If the Court maintains the 24-hour time period, that could prove burdensome for individuals. In comparison, under Germany’s NetzDG (Section 3(2)(2)), manifestly unlawful content needs to be removed within 24 hours, or intermediaries face liability. That regulation is aimed at large internet intermediaries, with sufficient resources to effectively tackle – as best they can – illegal content online. Maintaining the same standard for private individuals seems excessive. One possible consequence of this approach would be a chilling effect on public profiles, requiring all those who own a social media presence to make it ‘private,’ to avoid any unwanted comments from strangers.

However, the most important missing factor in the potential impact of this decision is the role of the social media platform. If one equates every social media profile to a little forum in itself (which has been done in cases of government officials, see for example Knight v Biden), too much responsibility is placed on the individual who has a social media profile, and not enough on the social media platform facilitating the connectivity of those profiles. (see José van Dijck, Culture of Connectivity) In this case, the applicant has 1800 friends – not such a big social media presence as to warrant terming it part of the public sphere. If it is, then it would be good to clarify size limits for such responsibilities, as the Digital Services Act (Regulation 2022/2065) has recently done for large social media platforms (<45,000,000 users). The platform is better equipped to judge the ‘clearly unlawful’ nature of comments, and certainly has better (even if still insufficient) resources for monitoring heavy traffic. Placing the responsibility on the owner of the social media profile is a liability regime that is not going to lead to anything but self-censorship.

Conclusion

Sanchez v France takes a significant step in relation to the establishment of intermediary liability for clearly unlawful content. Firstly, the Court took a bold step in upholding the French labelling of the litigious comments as ‘clearly unlawful,’ requiring expedient removal by the intermediary. This can be very burdensome, especially in light of the nature of the comments in this case, which were – in my opinion – not so clearly unlawful that an uninformed individual – such as a person monitoring their Facebook profile – would be able to spot their unequivocal unlawfulness. Secondly, the decision dramatically expands the range of people and entities that need to worry about being held liable as an internet intermediary, to the point where this could extend to everyone with a social media presence. Thirdly, the responsibilities falling on those potential internet intermediaries require significant legal prowess and resources, which are unattainable for most private individuals. The Court has understandably been accommodating to the French court holding applicant liable under the French liability regimes, but from the perspective of freedom of expression, the resulting decision is awkward at best… and untenable at worst.

The post Sanchez v France: The Expansion of Intermediary Liability in the Context of Online Hate Speech appeared first on Strasbourg Observers.

by Dr. Andy Hayward, Durham Law School, Durham University, a.p.hayward@durham.ac.uk

Following the important Grand Chamber decision in Fedotova and Others v. Russia, the Strasbourg Court has handed down two significant decisions on the legal recognition of same-sex couples. In Buhuceanu and Others v. Romania, the Court developed the principles established in Fedotova and weaponised the positive obligation route under Article 8 requiring Member States to introduce a legal framework offering protection and recognition for same-sex couples. In Maymulakhin and Markiv v. Ukraine, a different approach was taken with the Court instead using Article 14 read in conjunction with Article 8. This post will focus on the latter case and will reflect on its implications for the European Court of Human Rights’ approach to this important issue. It argues that Maymulakhin is significant as it both fortifies and harmonises the Court’s jurisprudence in this area. Moreover, the use of Article 14 and the framing of this issue as one of discrimination, reveals a continuing unwillingness of the Court to accept protection of the traditional family as a legitimate aim. This, in turn, limits the ability of States to justify discrimination on suspect grounds.

Background to the Case

The application was lodged by two Ukrainian nationals who had been living together in a stable and committed same-sex relationship since 2010. Their attempts to marry were rejected on the basis that the Constitution and Family Code of Ukraine limited marriage to different-sex couples. While certain aspects of their joint lives could be regulated using a private contract, they could not obtain the benefits and protections available to cohabiting couples as only different-sex couples were recognised under Ukrainian law. Such rights related to joint matrimonial property, succession, visitation in hospital and adoption.

Their position was made even more precarious by the outbreak of the war on 24 February 2022. After the start of the war, Markhiv joined the National Guard of Ukraine and when asked as to his next of kin, he was told that in the event of his death his mother, and not Maymulakhin, would be notified. Following a period of ill health, Markhiv later resigned from the National Guard. Using Articles 14 and 8, the applicants argued that the inability under Ukrainian law for them to marry or receive lesser protections as a de facto cohabiting couple constituted discrimination based on sexual orientation. They also raised Article 1 of Protocol No. 12 but the Court dealt with their case using Articles 14 and 8 only.

The Government’s response was that the applicants could obtain the same level of protection as a different-sex cohabiting couple in Ukraine. Moreover, while the scope of this protection was limited to certain property rights, there was nothing stopping the applicants from regulating their joint lives using private contractual agreements. The Government also emphasised that legislative steps were currently being taken to introduce registered partnerships for both different- and same-sex couples that would confer upon the applicants the protections they desired.

The Court’s Reasoning

The Court’s analysis proceeded in the standard way for discrimination claims. Article 14 requires a difference in treatment of persons in analogous situations and discrimination would be found where such difference has no objective or reasonable justification. States naturally possess a margin of appreciation, the scope of which varies according to the circumstances and subject matter of the dispute. The extent of the margin of appreciation would also be determined by the existence or non-existence of a European consensus. The Court noted that when discrimination was based on sexual orientation, the State’s margin would be narrow and particularly convincing and weighty reasons were needed by way of justification. Drawing upon recent case law such as X v. Poland and Macatė v. Lithuania, the Court reiterated that it has adopted a consistent stance of declining to ‘endorse policies and decisions which embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority’ (para. 62).

The Court proceeded to further entrench ‘well-established’ and ‘settled principles’ in this area, notably that same-sex couples are ‘just as capable as different-sex couples of entering into stable, committed relationships and that they have the same needs in terms of mutual support and assistance’ (para. 63). Similarly, the ideals, values and general spirit of the Convention were consistent with Article 8 being read in a manner that same-sex couples were to be afforded legal protections and recognition. While referencing the development of that approach in Fedotova, the Court acknowledged that, to date, the positive obligation was limited to the creation of an adequate legal framework and had not been interpreted to require States to make marriage available to same-sex couples.

The Court accepted that the couple had been in a stable and committed de facto partnership since 2010 and are in a comparable situation to a different-sex couple requiring recognition of their relationship. However, different-sex couples can marry or have recognition based on living as a family without being married. Crucially, this offered couples a choice and, in stark contrast, same-sex couples in Ukraine are ‘denied any such choice’ (para. 68). Adopting its earlier stance taken in Oliari and Others v. Italy, the Court refused to accept private regulation using contracts as an effective substitute, believing these types of agreements to be ‘of limited scope’ (para. 69). This led the Court to conclude that the applicants ‘were and are still treated differently from different-sex couples on account of the absence of any legal recognition and protection’ (para. 70).

Unsurprisingly, this finding meant justification was key. While Ukraine is permitted to limit marriage to different-sex couples, the Court noted that the Government had ‘not advanced any reasons, let alone convincing and weighty reasons, by way of justification for the difference in treatment’ (para. 73). Merely emphasising an intention to comply with the Article 8 positive obligation of introducing a legal framework was far from persuasive. Similarly, while the aim of protecting the traditional family can potentially justify a difference in treatment on grounds of sexual orientation, the Court remarked that it was ‘rather abstract and a broad variety of concrete measures may be used to implement it’ (para. 75). Resultantly, the Court found that Ukraine had failed to provide any justification for treating the applicants differently to a different-sex couple and thus there had been a violation of Article 14 taken in conjunction with Article 8.

Analysis

At face value, Maymulakhin could be viewed as merely a staging post in the Court’s journey towards enhanced legal protections for same-sex couples and potentially same-sex marriage. It does not break new ground and certainly has not received the same level of attention or academic critique as the important earlier cases of Fedotova and Oliari. However, there are important aspects to this decision that underline its broader significance and suggest it should not be overlooked in terms of its contribution.

First, the decision is undeniably bold, and, at times, the Court deploys reasoning that is particularly strident. Without the presence of dissenting judgments and with the Ukrainian judge Mykola Gnatovskyy voting in favour of the outcome, the unanimous decision arguably provides evidence of the Court’s frustration with certain types of arguments used to justify discrimination. For example, the Government placed considerable emphasis on its intention of introducing registered partnerships for both different- and same-sex couples that would offer protection for the applicant’s relationship in the future. However, the Court attached little weight to this argument believing that it ‘cannot speculate on a piece of legislation which does not exist yet’ (para. 74). The Court explored the political and social context too; it highlighted the fact that the Government had ‘already abandoned on one occasion, in 2019, its intention’ to introduce such a regime (para. 74). It also considered legislative activity to date and surveys and polls of the population regarding attitudes towards LGBT+ issues. While there is a gradual movement across Europe to introduce registered partnerships, this more rigorous approach of the Court suggests that a weak commitment by a Government to a future legislative project will not offer a convincing justification to discrimination on suspect grounds (for further details of this trend see here).

Additional evidence of this approach is provided when the Court discussed protection of the traditional family as a potential legitimate aim. Although the Court accepted that this argument can still theoretically provide a justification, it continued its approach of treating it with considerable suspicion and as a possible cloak for unjustifiable discrimination. What the Court appears to be doing is further hollowing out this line of argument, and its implications, by emphasising its vague and amorphous nature. More precisely, the Court is breaking down the dubious, but often invoked, connection advanced routinely by States that conferring legal protection upon same-sex couples invariably results in a diminution of the value of the traditional family. The Court in Maymulakhin noted that there is ‘no basis for considering that affording legal recognition and protection to same-sex couples in a stable and committed relationship could in itself harm families constituted in the traditional way or compromise their future or integrity’ (para. 75). Moreover, conferring these protections does not constitute a barrier for different-sex couples marrying or involve ‘weakening the rights secured to other people or other couples’ (para. 75). This echoes the earlier views expressed in Buhuceanu where the Court noted that it could not discern ‘any risks for the institution of marriage’ when a State affords same-sex couples legal protections (para. 81).

Second, the use of Article 14, rather than the positive obligation route under Article 8, is particularly significant. While it is indisputable that Oliari, Orlandi and Others v. Italy and Fedotova are important breakthroughs in the legal recognition of same-sex couples, the development of a positive obligation naturally directed attention to its precise scope and content. This is perhaps understandable. Although States are now obliged to introduce a framework for the legal recognition of same-sex couples, it was noted recently in Buhuceanu that a more extensive margin of appreciation exists ‘both to the form of recognition and to the content of protection to be granted’ (para. 74). Considerable scope for argumentation arises because the Court to date has also not stipulated in any detail the irreducible core content of such schemes and prefers to use the somewhat unhelpful expression that the regime must be ‘adequate’ (see Buhuceanu para. 73 and Maymulakhin para. 65). While piecing together the jurisprudence reveals that the protections must not be merely tokenistic and should confer meaningful status-based ‘couple’ protections, the focus arguably overlooks key considerations and, as Fedele argues persuasively, runs the risk of steering the court towards a ‘purely practical-legalistic point of view’ (see here).

It should be noted that the Court in Maymulakhin did not select Article 14 read in conjunction with Article 8 as a preference over analysing the case through Article 8 alone. Rather this was the way the applicants had formulated their complaint and the Court found it ‘appropriate to follow this approach’ after citing its use in Schalk and Kopf v. Austria and Vallianatos and Others v. Greece (para. 42). But it is arguable that using Article 14 has several benefits. The most obvious is that using discrimination, and the State then being subject to a much higher threshold for justification, allows us to see the normative values that underpin legal recognition. The Court in Maymulakhin emphasised that legal recognition for same-sex couples ‘confers legitimacy’ and ‘promotes their inclusion in society’ (para. 64). More importantly, recognition responds to much broader imperatives underpinning the Convention as an instrument ‘built on the equal dignity of individuals and sustained by diversity’ (para. 64). Respect for dignity is also not merely a goal of the Convention but is something that is realised through the legal recognition of same-sex relationships. This very much echoes the Court’s earlier sentiments expressed in Vallianatos and Oliari that, irrespective of the extent or intensity of the rights conferred, there is an important ‘intrinsic value’ of legal recognition.

A related benefit of using Article 14 is that it gave the Court the opportunity to connect its discrimination jurisprudence derived from Schalk and Vallianatos with the positive obligation line of reasoning developed in Oliari, Orlandi and Fedotova. This has the effect of entrenching, harmonising, and strengthening the Court’s approach. It is also particularly beneficial as Oliari prompted concerns as to how sensitive the positive obligation would be to the prevailing social, political and cultural context of the particular Member State (for discussion, see here). Now that these caveats have ostensibly been removed, a much stronger and more unified response can be taken. This robust approach can be seen in Maymulakhin with the Court repeatedly cross-referencing and affirming Fedotova as the now definitive statement of the law.

Moreover, while the applicants in Maymulakhin did want to formalise their relationship, the Court noted the importance of legal protections per se and not just those secured through a registered partnership or marriage. The discussion of this aspect was probably attributable to the fact that Ukraine’s law on de facto cohabiting couples was limited to different-sex couples only, rendering the applicants unable to access any means of protection. This is a slight departure from Oliari where the Court’s discussion centred more on the value of formalisation and status-based rights attached to a specific framework. By reiterating that legal protections per se are dignity-enhancing and that their denial constitutes discrimination, the foundations are being laid for more expansive interpretations of Convention rights. Indeed, by developing the receptivity of Article 14 arguments in this context, there is much greater potential for access to same-sex marriage to be claimed in the future either under Article 12 or Article 8 read alone. By shifting the discourse, same-sex marriage now becomes a matter of equality, dignity, and discrimination rather than a bonus available to some couples after a State has complied with the baseline registered partnership positive obligation imposed by Fedotova.

Conclusion

Maymulakhin is a significant decision that adds to the steadily increasing Strasbourg jurisprudence on same-sex relationships. The decision is also important for Ukraine. Since the Russian invasion, Ukraine has sought to distance itself from the anti-Western homophobic rhetoric espoused by Russia and polls reveal a general decrease in the opposition towards same-sex relationships (see here). Indeed, with many LGBT+ people joining the war effort in Ukraine, the value of legal recognition for same-sex couples and the foundational values of the Convention itself are brought into sharp relief. Ukraine must therefore respond to the violation found in Maymulakhin and comply with the positive obligation in Fedotova. Compliance with the ruling has other implications too. Ascension to the European Union as a full member, which has now become more popular since the invasion, will require close consideration of Ukraine’s approach to LGBT+ issues. Thus Maymulakhin is more than just another addition to the Court’s jurisprudential canon on LGBT+ issues; it speaks also to Ukraine’s place within Europe.

The post Maymulakhin and Markiv v. Ukraine – A Case of Love Conquering All? appeared first on Strasbourg Observers.

Georgiana Epure and Elena Brodeală

While there is a growing consensus on the importance of gender balance in the judiciary, women are still underrepresented on the benches of international courts. The European Court of Human Rights (“the Court”, “ECtHR”) is no exception. Despite the steps taken by the Council of Europe (“CoE”) to improve the situation, its member states are at times still showing resistance to nominating (eligible) women for office. The recent process to nominate a judge in respect of Romania proves this point. After pressure from civil society and a request by the CoE to revise the all-male list that it put forward for the election of its ECtHR judge, Romania nominated a woman who ultimately received just three of the 165 votes cast in the Parliamentary Assembly of the Council of Europe (“PACE”), the body that elects ECtHR judges. This blog post scrutinizes Romania’s failure to (substantially) respect the CoE’s requirements to ensure gender balance in the selection of its ECtHR judge. To contextualize the discussion, this post starts by outlining the ECtHR’s judicial selection procedure, the situation of gender underrepresentation on the ECtHR bench, and the rules that the CoE has put in place to address this situation. The second part of the blog post provides a critical analysis of the Romanian case.

The Election of ECtHR Judges and the Need for Gender Balance

The election of judges to the ECtHR is a complex process. First, CoE member states shortlist three candidates domestically. Then, the list is sent to an independent group of experts established by the CoE, known as the Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights (“the Advisory Panel”), who provide a confidential opinion on whether it complies with the CoE’s requirements in terms of composition and the selection procedure of the candidates. After receiving the purely consultative advice from the Advisory Panel, states submit their final list to PACE. At the level of PACE, the candidates are interviewed and evaluated by the Committee on the Election of Judges to the European Court of Human Rights (“the Committee on the Election of Judges”) which makes a recommendation regarding their suitability for election. Finally, PACE votes for one of the candidates.

According to Article 21 of the European Convention on Human Rights, to be eligible for the position of ECtHR judge, candidates must “be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence”. In 2004, to address women’s underrepresentation at the Court, PACE adopted Resolution 1366 and introduced a gender “balance” rule, requiring the list of candidates to include at least one candidate of each sex. In 2005, after Latvia submitted an all-female list, this rule was amended to allow for exceptions “when the candidates belong to the sex which is underrepresented in the Court, that is the sex to which under 40% of the total number of judges belong”. In practice, this exception accommodates not only all-female lists, such as Malta’s in 2019, but could also accommodate all-male lists, arguably even in the paradoxical situation when the number of women on the ECtHR bench would be only temporarily slightly above 40%.

For the time being, however, as Stéphanie Hennette Vauchez observed, the 40% threshold set by PACE became “a ceiling – not a floor” for women’s representation on the ECtHR bench. Indeed, women have never made up more than around 40% of the total number of judges. At the time of writing this blog post (25 June 2023), only 17 out of the ECtHR’s 46 judges are women, which represents ~37% of the total. This will drop further since Romania’s female judge will soon be replaced by a male judge. This gender imbalance takes place in a context in which, according to the CoE’s European Commission for the Efficiency of Justice, since 2014, across CoE states, the average ratio of female judges was higher than the ratio of male judges, standing at 56% in 2020. The glass ceiling, however, is palpable. The same report shows that while there have been promising developments in the last decade, women are still generally underrepresented on the benches of the highest instance courts, and are significantly underrepresented as court presidents. Likewise, at the ECtHR, it was only in 2022 that a woman was elected, for the first time, as President of the Court.

Despite women’s historical underrepresentation on the ECtHR bench, there is another exception to the requirement of submitting a gender “balanced” list of candidates. In the context of some states’ resistance to the gender “balance” requirement and a 2008 advisory opinion of the ECtHR, PACE adopted Resolution 1627 (2008) which allows states to exceptionally submit “single-sex lists of candidates of the sex that is over-represented in the Court” if they have “taken all the necessary and appropriate steps” to identify a suitable candidate of the underrepresented sex, but   without success. Factors taken into account in assessing whether all “necessary and appropriate steps” have been taken include: whether the call for candidatures was re-published and under what format; whether there were any members of the underrepresented sex on the reserve list submitted by the state; and whether states made concrete efforts to encourage or convince members of the underrepresented sex to respond to the calls for candidatures. The decision to exceptionally consider a single-sex list of candidates is taken by the PACE Committee on the Election of Judges with a two-thirds majority vote. In theory, this seems to be a very high threshold. In practice, however, as Stéphanie Hennette Vauchez reports, this exception allowed Moldova to validate its all-male list in 2012 on the ground that women and men had “equal opportunities” in the application process at the domestic level, which, as Hennette Vauchez concludes, is far from a compelling reason.

Despite this exception, the gender “balance” rule has had a positive impact on women’s representation among the candidates for the position of ECtHR judge. Since its adoption in 2004, most states submitted lists for the election of their ECtHR judge containing at least one female candidate, with notable exceptions including Malta (2004 and 2006), Slovakia (2004), Belgium (2012) and, more recently, Denmark (2022), in addition to the Moldavian case mentioned above. Last year, Romania also attempted to put forward an all-male list of candidates, which was criticised by local civil society groups, before being requested by the Advisory Panel to resubmit its list.

Romania’s 2022 Selection of Candidates for the Position of ECtHR Judge

Romania has a poor record on gender equality in decision-making positions across the political and economic spheres. In 2022, only 19% of the members of Parliament were women and only two out of 22 ministers in the Government were women. In 2022, the European Institute for Gender Equality placed Romania second to last in the Gender Equality Index, which measures gender equality across all European Union member states. Romania’s ranking at the bottom of this index is mainly due to women’s general absence from decision-making positions in the country.

Romania is, however, one of the countries with the highest number of female judges in Europe. Women make up the overwhelming majority of judges, including on the bench of the High Court of Cassation and Justice , and also represent the majority of court presidents. In 2020, 73% of judges in Romania were female, which is 11 percentage points higher than the CoE median (62%). Furthermore, over 60% of court presidents in Romania were women. Women are also well represented in other legal professions and among law professors. At the same time – perhaps unsurprisingly given women’s political underrepresentation – there are still few women in judicial positions where nominations are made by political actors, notably on the bench of the Constitutional Court. While four of the nine current Constitutional Court judges are women, historically, the Constitutional Court bench has been overwhelmingly made up of male judges. Since the Constitutional Court’s establishment in 1992, only eight women have ever been appointed to sit on its bench (compared to 31 male justices) and it has never had a female president.

The possible connection between the underrepresentation of women on the bench of the Constitutional Court and Romania’s reticence to nominate women for similar positions, such as that of ECtHR judge, is certainly worth further study. In any case, it is to be noted that while the Government’s call for candidates for judge at the ECtHR explicitly mentioned that the final shortlist will be composed by taking into account the gender “balance” principle, this seems to have been just a formality to give the appearance of compliance with a CoE-imposed rule rather than a real commitment to gender balance. Ultimately, the list Romania sent to the Advisory Panel contained three male candidates, while two women were added to the reserve list.

The Romanian Government’s disregard for the gender “balance” requirement was criticized and contested by civil society groups and gender equality supporters. A group of Romanian human rights and gender equality organizations, activists, legal professionals, and academics – including these two authors – petitioned the Ministry of Justice (which coordinated the national selection process for the election of the new ECtHR judge) to resubmit a list that respected the principle of gender “balance”. The group also sent an open letter to the CoE Advisory Panel urging it to ask Romania to resubmit a list of candidates that respects the principle of gender “balance” and alert the PACE Committee on the Election of Judges about the country’s non-compliance with CoE gender equality rules. They argued that no exceptional circumstances could be invoked by Romania for bypassing the gender “balance” principle, given that it is one of the countries with the highest number of female judges in Europe, and that the Government had already identified two qualified women who were added to the reserve list.

The Ministry of Justice noted, in its response to the letter sent by civil society groups that it had informed the members of the domestic selection committee about the gender “balance” rule in PACE Resolution 1366 (2004), but suggested that it did not consider it to be binding. The Ministry based its reasoning on an erroneous reading of the 2020 ECtHR case Guðmundur Andri Ástráðsson v. Iceland. In this case, the ECtHR found a violation of the right to a fair trial due to the undue interference of the Minister of Justice in the appointment of judges to the Supreme Court of Iceland. The Minister had replaced four of the 15 initially selected judges with appointees of her choice arguing, among others, that the replacement was needed to ensure gender balance and give more weight to judicial experience in the selection procedure. Yet, in examining the facts, the ECtHR found these to be mere unsubstantiated pretexts for political interference in the judicial selection process. Hence, the Court found a violation due to political interference with judicial appointments. In no way, however, did it declare that gender balance could not be a legitimate rule in the appointment of judges, nor that its holding would overthrow the current rules for the selection of ECtHR judges as the Romanian Ministry of Justice implied. Furthermore, probably to underline that it did not object to promoting women as such, the Ministry of Justice noted that the current ECtHR judge in respect of Romania is a woman.

After its exchange with the CoE Advisory Panel, the Romanian Government changed its position and moved one of the female candidates from the reserve list to its final list of candidates. In explaining its decision, the Minister of Justice stated that the Advisory Panel underlined that the gender “balance” rule is binding and that it was not convinced that there existed “exceptional circumstances” to justify not abiding by it – particularly since there were already two women on the reserve list. The Advisory Panel also concluded that one of the male candidates did not meet the criterion of being a “jurisconsult of recognised competence”. In this context, the Romanian Government amended the list by replacing this candidate with the first woman on the reserve list.

While the revised list respected the gender “balance” principle, the PACE Committee on the Election of Judges recommended the election of one of the “two equally qualified” male candidates, which is what ultimately happened. After the PACE vote on 26 April 2023, the female candidate received just eight out of 165 votes in the first voting round and only three votes in the second round, which was held since none of the candidates received the needed majority in the initial round. This clearly demonstrates that nominating women on the candidate lists is not enough when they have little chance of being elected.

Conclusion

The case of Romania’s recent selection of its next ECtHR judge demonstrates that the current gender “balance” rule of the Council of Europe is not effective if member states are not truly committed to complying with it in a substantive way. Assessing the respect for this rule in the ECtHR judicial selection process cannot be a mere quantitative exercise (Are there women on the lists of candidates?). A qualitative assessment is needed too (Who are the women? What are their chances of being elected?). If Romania considered that the women on the reserve list were not eligible, it could have continued its search by inviting other qualified women to apply, instead of sending an all-male list or nominating ineligible female candidates. Of course, its decision to use the reserve list to comply with the Advisory Panel’s recommendation is understandable, not least because the end of the current judge’s mandate was imminent and a new search for candidates would have prolonged the selection process. Yet the Romanian case shows that we urgently need new measures – at both the CoE and domestic levels – to ensure that women are supported and empowered not only to compete for, but also to occupy, the position of ECtHR judge.

The post Gender (Im)balance and the Making of the ECtHR Bench: A Critical Discussion of Romania’s Selection Process for its Strasbourg Judge appeared first on Strasbourg Observers.

by Dr. Ronagh McQuigg

The European Court of Human Rights (ECtHR) has now built up a substantial body of jurisprudence on domestic abuse. It is now firmly established that failure on the part of State authorities to respond in a sufficient manner to this issue may constitute violations of Articles 2, 3, 8 and 14 of the European Convention on Human Rights (ECHR). However, the approaches taken by the ECtHR in domestic abuse cases have evolved. This is demonstrated by the three domestic abuse cases where the Court found Bulgaria to be in violation of the ECHR. The most recent of these is A.E. v Bulgaria which was decided in May 2023. The purpose of this post is to track the evolution of this jurisprudence, from a point where the ECtHR tended to base its findings on Article 8 (the right to respect for private and family life) to the current position whereby the Court’s use of Article 3 (the right to be free from torture or inhuman or degrading treatment) and Article 14 (the non-discrimination provision) is commonplace, as demonstrated in A.E. v Bulgaria.

Facts

In A.E. v Bulgaria, the applicant, at the age of 15, had moved in with a 23-year-old man, referred to in the judgment as ‘D.M.’. The applicant alleged that D.M. had been violent towards her on a regular basis. After one such attack she went to hospital, and was recorded as having injuries including extensive bruising which had been caused by blows from hard objects. The applicant’s mother contacted social services, who in turn contacted the prosecutor’s office. The prosecutor ordered that the police carry out a preliminary check into the complaints. The police interviewed the applicant and her mother, and the latter alleged that the applicant had been kicked and strangled by D.M. The prosecutor decided against opening criminal proceedings, and found that only an offence subject to private prosecution, namely minor bodily harm, had been committed. The applicant attempted to have this decision overturned, but without success.

The applicant argued, on the basis of Articles 3 and 14 of the ECHR, that the State had failed to protect her from domestic abuse and to investigate sufficiently her complaints in this regard, and that she had been discriminated against on the grounds of age and gender.

Judgment

In relation to the alleged violation of Article 3, the ECtHR found that the treatment which the applicant had suffered reached the threshold of severity needed to engage this provision. The Court noted that the applicant had been 15 years of age at the time of the circumstances in question, arguably in a state of emotional and physical vulnerability and dependent on her alleged aggressor, and was likely to have experienced serious intimidation and distress in addition to the injuries which had been recorded at the hospital. The ECtHR held that the State had failed to put in place an effective system to punish all forms of domestic abuse and to provide adequate safeguards for victims. The State had not protected the applicant sufficiently, and there had thus been a breach of Article 3.

In relation to the alleged violation of Article 14, the applicant had submitted statistics which established that women were the predominant victims of violence, including domestic abuse, in Bulgaria. The ECtHR asserted (at para. 119) that,

The Court proceeded to state (at para. 119) that, ‘once it has been established that domestic violence affects women disproportionately, it is for the Government to show what kind of remedial measures the domestic authorities have deployed to tackle that disadvantage and to ensure that women can fully enjoy human rights and freedoms on an equal footing with men.’

Apart from general submissions, the State had not demonstrated what specific policies had been pursued with the aim of protecting victims of domestic abuse and punishing offenders. In the view of the ECtHR, the relevant legal provisions were not capable of responding sufficiently to domestic abuse of which the majority of victims in Bulgaria were women. The Court found that the authorities had not disproved the applicant’s prima facie case of a general institutional passivity in matters related to domestic abuse, and stated (at para. 122) that, ‘for a sustained period of time women have continued to suffer disproportionately from domestic violence and the authorities have not shown that they have engaged adequately with the problem.’  The ECtHR therefore held that there had also been a violation of Article 14 taken in conjunction with Article 3.     

Analysis

A.E. v Bulgaria is a robust judgment which demonstrates a strong level of understanding of domestic abuse on the part of the ECtHR. The Court noted that, under the national legal framework, in order for harm to be considered as being inflicted in the context of domestic abuse, it had to be established that there had been ‘repeated’ acts of violence, a term which had been interpreted by the domestic courts as meaning no fewer than three instances. However, the ECtHR cited the June 2021 judgment of the Grand Chamber in Kurt v Austria, where the Grand Chamber had stated (at para. 175) that ‘consecutive cycles of domestic violence, often with an increase in frequency, intensity and danger over time, are frequently observed patterns’. The ECtHR in A.E. was of the view that ‘requiring repeated instances of abuse in order for the State to intervene, bearing in mind the real risk of new incidents of violence with increased intensity, [did] not sit well with the State’s duty to respond immediately to allegations of domestic abuse and to show special diligence in that context’ (para. 96), as had also been established in Kurt.

A.E. v Bulgaria constitutes the third domestic abuse case where the ECtHR found Bulgaria to be in violation of the ECHR, the previous two cases being Bevacqua and S. v Bulgaria and Y and Others v Bulgaria.  A study of these cases serves to demonstrate the ways the jurisprudence of the ECtHR on domestic abuse has evolved. In Bevacqua and S. v Bulgaria, which was decided in June 2008, it was argued that the State authorities had failed to protect the first applicant from the violent behaviour of her former husband. Although the applicants relied on Articles 3, 8 and 14 in this regard, the ECtHR decided that the complaints fell to be examined under Article 8, and therefore did not consider either Article 3 or Article 14 in its judgment. In its early jurisprudence on domestic abuse, the approach taken by the Court regarding whether it found breaches of Article 3 or violations of Article 8 was rather incoherent.  In certain cases such as Opuz v Turkey and E.S. and Others v Slovakia, the ECtHR found violations of Article 3. However in other cases such as Bevacqua and S. v Bulgaria, Kalucza v Hungary and A v Croatia, the Court found breaches of Article 8 and then stated that it was thus unnecessary to examine the cases under Article 3.

One possible explanation of the greater use of Article 8, as opposed to Article 3, in the ECtHR’s earlier case law on domestic abuse is that the Court may not yet have fully realised the gravity of the issue. However, this explanation does not appear sufficient, given that the ECtHR did find breaches of Article 3 in some relatively early cases involving domestic abuse. A more likely explanation lies in the fact that, for reasons of practicality, the Court often takes the approach of finding a breach of one provision of the ECHR and then omitting to consider the application of other provisions on which arguments have been made. It is likely that the ECtHR’s apparent preference for the use of Article 8 as opposed to Article 3 in its earlier jurisprudence, of which Bevacqua and S. v Bulgaria is an example, was due simply to the fact that it can be more straightforward to establish a breach of Article 8 than it is to establish a violation of Article 3.          

However, the difficulty with an approach based on practicality is that it can be mistaken for an approach founded on principle, and indeed such problems became apparent with the 2013 case of Valiuliene v Lithuania. In this case, the State argued that the ill-treatment to which the applicant, a victim of domestic abuse, had been subjected had not been sufficiently severe to fall within the scope of Article 3. The State nonetheless presented the ECtHR with a unilateral declaration acknowledging a violation of Article 8. The Court refused to accept this declaration, found a breach of Article 3 and stated that it was unnecessary to examine the complaint under Article 8 as a violation of Article 3 had already been found. Interestingly, there appeared to be nothing to distinguish the violence suffered by the applicant in Valiuliene as regards level of intensity or severity of injuries sustained from that experienced by the applicants in other cases involving domestic abuse where the ECtHR had found breaches of Article 8 and omitted to consider Article 3. However, if the Court had accepted the State’s unilateral declaration of a violation of Article 8, it would in effect have been accepting that there had been no violation of Article 3 in this case; it seems that such an outcome was not desired by the ECtHR. Following Valiuliene, Article 3 was used much more extensively in cases involving domestic abuse. This can be seen by the fact that, unlike Bevacqua and S. v Bulgaria where a breach of Article 8 was found, the Court in A.E. v Bulgaria held that Article 3 had been violated.  

It is also noteworthy that of the three Bulgarian cases involving domestic abuse, A.E. v Bulgaria is the first of these where a breach of Article 14 has been found. This could be said to be reflective of the increased use of Article 14 by the ECtHR, both in cases involving domestic abuse and more broadly. When the ECtHR issued its judgment in Bevacqua and S. v Bulgaria in 2008, the Court had not yet found a breach of Article 14 in a domestic abuse case. However, in its 2009 judgment in the domestic abuse case of Opuz v Turkey, the ECtHR took the step of framing such abuse as a form of gender-based violence and found a violation of Article 14. This development began an upsurge in the use of Article 14 in cases involving domestic abuse, as demonstrated by the fact that, unlike in Bevacqua and S. v Bulgaria, Article 14 was considered by the ECtHR both in its March 2022 judgment in Y and Others v Bulgaria and its May 2023 judgment in A.E. v Bulgaria. 

Nevertheless, a breach of Article 14 was not ultimately found in Y and Others v Bulgaria. In this case, the first applicant’s daughter had been killed by her husband. The ECtHR found that there had been a violation of Article 2 of the ECHR (the right to life) and that the State authorities had not responded promptly to complaints and had not carried out a proper assessment of the risk involved in view of the context of domestic abuse. However, although the applicants had also argued that the failings in question had been due to a general complacency on the part of the authorities towards violence against women, the ECtHR was of the view that this had not been the case and there had thus been no violation of Article 14 read in conjunction with Article 2. Although the Court held that, as in all States in the Council of Europe, domestic abuse in Bulgaria predominantly affected women, no evidence had been presented to suggest that the Bulgarian authorities sought to dissuade women from reporting such abuse, or that the courts systematically delayed the issuing of protection orders.

The ECtHR did note in Y and Others v Bulgaria that the State authorities did not collect comprehensive statistics regarding the way domestic abuse cases were handled by the law-enforcement authorities, and viewed this as ‘a serious omission’ (para. 125). Nevertheless, the applicants had not provided sufficient evidence to substantiate their assertion that the State authorities had remained generally complacent in cases involving domestic abuse; and it could not be said that the law in Bulgaria wholly failed to address such abuse or that it placed undue obstacles in the way of women who wished to complain of domestic abuse. The ECtHR was not therefore of the view that the applicants had succeeded in making a prima facie case of a general and discriminatory passivity on the part of the State authorities in relation to domestic abuse directed against women, or that there was any proof of anti-female bias by the officials dealing with the specific case in question.

By contrast, a violation of Article 14 was found in A.E. v Bulgaria. It is of particular note that the ECtHR stated in this case that the absence of official comprehensive statistics kept by the authorities could no longer be explained as a mere omission, ‘given the level of the problem in Bulgaria and the authorities’ related obligation to pay particular attention to the effects of domestic violence on women and to act accordingly’ (para. 120). This judgment therefore serves to highlight the need for States to collect and retain comprehensive official statistics relating to issues such as domestic abuse, and provides a salutary warning to States that continual failure to do so may contribute towards a finding of a violation of Article 14.            

Conclusion

In conclusion, a comparative study of the Bulgarian domestic abuse cases serves to demonstrate the way the approaches of the ECtHR to domestic abuse have evolved over a relatively short space of time.  No longer is Article 8 frequently used as a basis for findings of violations of the ECHR in such cases; rather breaches of Articles 3 and 14 are now often found.  In its judgment in A.E. the ECtHR showed a high degree of understanding of domestic abuse.  The case also serves to emphasise the necessity for States to collect comprehensive statistics in relation to issues such as domestic abuse, and demonstrates that a continual failure to do so may contribute towards a State being found to be in breach of Article 14.             

The post The Evolving Jurisprudence of the European Court of Human Rights on Domestic Abuse: A.E. v Bulgaria appeared first on Strasbourg Observers.

By Dylan Couck

On 21 March 2023, the European Court of Human Rights (‘the Court’) found that Türkiye had violated the right to respect for private life under Article 8 on the one hand, and the right to education under Article 2 of the First Protocol on the other. Türkiye had expelled Alphan Telek, Edgar Şar, and Zeynep Kıvılcım, the applicants, from their status as civil servants and revoked their passports under the emergency laws adopted after the attempted coup in 2016. These sanctions were imposed because the applicants had signed a petition condemning the violence used by the Turkish government during actions against the PKK, the Kurdistan Workers’ Party. The latter measure was challenged by the petitioners before the Court in Strasbourg. In this blogpost, I argue that the Court’s reasoning that this measure limited Mr Telek’s and Mr Şar’s right to education and consequently, its decision to broaden the scope of Article 2 of the First Protocol to include doctoral programmes, is deficient.[i]

Facts and summary of the judgment

Mr Telek was a research assistant at Yıldız Teknik University in Istanbul and was enrolled in a doctoral programme at Sciences Po in Paris (Institut d’études politiques de Paris). Mr Şar worked for the same Turkish university as a research assistant and was pursuing doctoral studies at the European University Institute in Florence. On suspicion of having links with a terrorist organisation, based on their signing the above-mentioned petition, both applicants were dismissed from their jobs at their Turkish university and pursuant to this, had their passports revoked. Ms Kıvılcım was a researcher at Istanbul University. The said sanctions were imposed onto her on the same grounds as well. She was residing in Berlin at that moment.

The applicants were given new passports between December 2019 and September 2020 following an amendment to the emergency laws. Their domestic proceedings against the removal from office were ongoing at the time of the European Court’s ruling.

Concerning the right to respect for private life, the applicants argued that the cancellation of their passports had hindered them from pursuing their doctoral studies and research activities at foreign universities. Ms Kıvılcım added that in the absence of a valid passport, she had encountered serious obstacles, including administrative ones, during her stay in Germany. They argued that the measures taken under the Turkish Emergency Laws were not sufficiently clearly formulated to serve as a legal basis for sanctions. Formulations such as ‘links – membership, affiliation or association – with a terrorist organisation’ and ‘persons whose departure from the country is inconvenient for general security’ were, according to the applicants, too broad and vague. Accordingly, they claimed that their rights protected by the ECHR had been violated.

The Court followed this line of argument. By withholding the applicants’ passports and not reissuing them for a considerable period of time, Türkiye curtailed the right to respect for private life. Indeed, as the Court has stated in Pişkin and Kotiy, Article 8 of the Convention also covers the right to travel internationally so that individuals can pursue professional activities and maintain contacts with acquaintances abroad. According to the ECtHR, this is all the more important for academics as participation in international scientific conferences, and the opportunity to share and discuss ideas and research with other scholars is essential to their profession. Measures involving a travel ban or restricting the ability to travel inherently hamper the professional activities of researchers. While a limitation of this right could be justified, the decisions of the Turkish authorities to revoke the passports were too imprecise, did not specify the modalities nor the duration of the revocation, and there was no justification for the application of the sanction specifically to these applicants. Adequate and effective judicial review was therefore not possible, which led the Court to conclude that the principle of legality under Article 8 ECHR had been violated.

In addition, applicants Telek and Şar also claimed a violation of their right to education. They argued that, by preventing them from pursuing their doctoral studies abroad for the period during which they did not have their passports, the Turkish authorities would have unjustifiably curtailed this right. With regard to this complaint, the Court found a violation of Article 2 of the First Protocol as well due to the defective legal basis for the measures.

The Court used a twofold but concise reasoning to establish that the right to education enshrined in Article 2 of the First Protocol to the ECHR also covers doctoral programmes. Firstly, it argued that it saw no reasons why a doctoral programme should not be covered by the right to education. Indeed, according to the Court’s previous case-law, the content of the right to education is variable and changes over time and space, in accordance with social and economic conditions. In the 2005 Leyla Şahin case, the Court had already declared Article 2 Protocol 1 applicable to university studies, and in several subsequent judgments the Court (e.g. Mürsel Eren and İrfan Temel et al.) confirmed that the right to education inherently implies a right of access to existing higher education institutions. The Court seems to imply that, although it does not explicitly postulate so, a doctoral degree must be treated as any other university degree as far as the applicability of Article 2 of Protocol No. 1 is concerned. Moreover, the importance of doctoral studies and research for scientific progress justifies their inclusion under the right to education in the eyes of the Court.

Given the importance of cooperation and exchanges between countries in the field of higher education and research, the Court secondly held that the obligations incumbent on the Turkish authorities were not limited to safeguarding access to doctoral courses in Türkiye itself. Student and research mobility are part of the essence of higher education within the Council of Europe. For instance, the Lisbon Convention on the Recognition of Qualifications concerning Higher Education in the European Region – which was also ratified by Türkiye – aims to facilitate mutual recognition of study qualifications. Article VI.3 of that Convention provides that the holder of a higher education degree should have access to subsequent higher education studies, including doctoral studies, in a State that recognised the degree on the same basis as holders of a degree from that State. The ECtHR inferred from this that Türkiye had a duty to refrain from interfering with the possibility for its citizens to have their degree recognised abroad and thus gain access to doctoral studies there.

Critical for a (rightly) critical dissenting opinion

The Turkish Judge Yüksel wrote a dissenting opinion to the judgment, in which she focused on the applicability of the right to education to doctoral programmes. Her premise – which I agree with – is that the Court’s reasoning for extending the right to education to doctoral programmes is rather poor. More specifically, she disagreed with the majority on three points. First of all, she opined that a mere reference to the Leyla Şahin judgment could hardly suffice to bring doctoral studies within the scope of the right to education. After all, that judgment concerned the continuation of university studies in the home country and not doctoral studies conducted abroad. Secondly, Judge Yüksel considered that it was incorrect to use a reference to the Lisbon Convention, as it is a separate instrument, to broaden the rights provided for in the ECHR. Finally, she argued that the judgment imposed a positive obligation on Member States to provide for effective access to higher education institutions, including those abroad, and this in spite of the negative wording of Art. 2 Protocol 1.

Starting from the outset of the Strasbourg Court’s reasoning and the criticism of the dissenting judge: does a doctoral programme fall within the scope of the right to education as contained in Article 2 of the First Protocol? The Court ruled in the 2005 Leyla Şahin case that the content of the right to education may vary in space and time according to the actual economic and social conditions.  In doing so, the Court had already opened the door to a broader interpretation of the right to education which is not limited to primary and secondary education. Unlike in the Leyla Şahin case, the Court’s reasoning in the annotated judgment for extending the scope of the right to education to doctoral studies is virtually absent. Indeed, when it broadened the scope of Article 2 Protocol 1 to include initial undergraduate and graduate programmes in Leyla Şahin, the Court relied on recommendations by the Committee of Ministers and the Parliamentary Assembly of the Council of Europe in support of this conclusion.

While I endorse the outcome of the present judgment, it is nevertheless insufficiently reasoned to equate doctoral programmes with an initial (under)graduate programme and bring those programmes within the scope of the right to education, solely on account of their importance to science – which I do not contest in itself – without any further substantiation. If a PhD student were to include such a reasoning in their dissertation, they surely would not get away with it. Data from the OECD, for example, could have served as substantiation for this reasoning; an analysis of national legislation could also have possibly shown that doctoral courses are considered higher education by several members of the Council of Europe, as for example in France or the Flemish Community in Belgium. Such analysis, in my view, could have led to the same conclusion but with a rationale that, as befits good research, could have been verified.

As regards the positive obligation to grant individuals access to doctoral training programmes (both domestically as well as abroad) which Judge Yüksel reads in the judgment, I cannot concur with her dissent on this point. In my view, such a positive obligation does not follow from the judgment. First of all, the Court held that because Mr Telek’s and Mr Şar’s qualifications had previously been recognised in France and Italy respectively – this can be implicitly deduced from the finding that they had been able to commence doctoral studies in those countries – and because they had consequently gained access to the doctoral course there, Türkiye should not have prevented them from travelling to attend those programmes. Nevertheless, the Court’s phrasing in the judgement leads to a broader, negative obligation on the part of Member States: they may not prevent nationals from exercising their right to education in a foreign higher education institution. However, the Court stressed that this obligation is distinct from that of providing unconditional access to these institutions – thereby refuting the idea that such a positive obligation can be derived from its judgment. Hence, the obligation which one might infer from this judgment is merely a negative one.

The reasoning of the European Court which leads to this conclusion is, however, succinct. A mere reference to the Lisbon Convention and the intention of the participating States to recognise each other’s higher education qualifications is rather meagre; all the more so when the Court, through Article 2 of the First Protocol, seems to actually intend to secure that students have a right, which corresponds with the Parties’ commitments under the Lisbon Convention, to have their higher education qualifications recognised abroad and to pursue further studies such as doctoral studies there. Such a conclusion would have been understandable if the Court had used the Lisbon Convention in support of other, stand-alone motives. If, on the other hand, it is only able to reach this conclusion with an argument that essentially relies on a legal instrument other than the ECHR itself, then the interpretation of Article 2 Protocol No. 1 as rendered by the Court is remarkably broad. This transcends an ‘interpretation in light of other sources of law’ as the present judgment grants nationals of States Parties to the ECHR a right that actually only exists as an obligation resting on States Parties to the Lisbon Convention.

Conclusion

The foregoing should not suggest that I disagree with the premise of the judgment. It is positive that the Court recognises the right to education of doctoral candidates and clarifies that Member States cannot prevent nationals from exercising this right, either in a national higher education institution or in one abroad. Still, it is regrettable that the Court reaches this conclusion relying on a barely tangible reasoning – or at least one that does not seem clear from the text of the judgment. Moreover, the question arises to what extent this broadened interpretation of the right to education extends to states that are not a party to the Lisbon Convention – i.e. Greece which, as the only member of the Council of Europe, is not a signatory to the Convention.

Regardless, the recognition of doctoral programmes as higher education protected under Article 2 of Protocol No. 1 raises questions about the application of other, related rights and obligations. For example, Article 13.2.c of the 1966 International Covenant on Economic, Social and Cultural Rights requires that “higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education”. Will this commitment on the part of the government also extend to doctoral studies? It is by all means worth further research.

[i] This text is based on a Dutch version of this blog, previously published on EHRC Updates on 16 June 2023.

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by Ioana Iliescu, Law and Advocacy Officer at the European Implementation Network, a Strasbourg-based NGO working exclusively to advocate for the full and effective implementation of ECtHR judgments.

Judgments of the European Court of Human Rights (“the Court”) concerning psychiatry in Romania have proven particularly challenging to implement. These cases concern, inter alia, issues ranging from shortcomings in the social and medical care afforded to persons with mental disabilities, the need for an independent and effective system of legal protection for vulnerable adults, and safeguards regarding placements in mental health institutions (Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania); overcrowding and poor material conditions in psychiatric hospitals (Parascineti v. Romania); and unlawful involuntary psychiatric placements (Cristian Teodorescu v. Romania). This blog argues that the development of effective long-term solutions to the systemic problems in the field of psychiatry in Romania requires a human rights-based approach to disability which aligns with the UN Convention on the Rights of Persons with Disabilities (UN CRPD) standards, and which requires the creation of alternative community-based mental health and social services for persons with disabilities.

There is a serious humanitarian problem regarding the respect and protection of the rights of persons with mental disabilities living in institutional settings in Romania, who are often deprived of personal liberty within institutions, forced to live in poor conditions, and have little to no access to justice. The Court found that Romania had violated the Convention in thirteen leading judgments concerning psychiatry and the rights of persons with mental disabilities, by far the most of all Council of Europe convicted states on this thematic. The implementation of these judgments requires political will, national capacity, a high amount of financial and human resources, as well as overcoming stigma and achieving a paradigm shift at societal level.

Between the 5^th and 7^th of June 2023, the Committee of Ministers of the Council of Europe (“Committee of Ministers”), the body tasked with supervising ECtHR implementation, examined the implementation of these judgments by Romania. It took a very strong response in relation to Romania’s prolonged non-implementation and lack of political will to address them, deciding to intensify the frequency of its supervision. The fact that the Committee of Ministers is taking a strong interest in these cases is highly welcome, especially at a time when the Parliamentary Assembly of the Council of Europe and the Council of Europe Development Bank have also been active in addressing underlying causes of coercive practices in mental health settings in general.

A serious, invisible humanitarian issue: persons with disabilities in Romanian mental health institutions

Persons with mental disabilities (intellectual and psychosocial) living in institutional settings in Romania do not have sufficient access to justice to lodge numerous (or even few) applications before the Court, although the human rights violations they face are systematic, wide-ranging, and affect approx. 30 000 people. They are subjected to ill-treatment, medical neglect, and abuse; they live in overcrowded, poor material conditions of detention. They are placed in institutions by their legal guardians or the state, with whom they are often in a conflict of interest or have never met. When they are voluntarily committed in institutions, it is mainly due to a lack of alternative options in the community. Even if people with mental disabilities want to leave mental health institutions, they are pressured and manipulated to remain. People with mental disabilities are unable or afraid to complain, as they are fully dependent on the staff and management of the institutions where they are placed. Nils Muiznieks, former Council of Europe Commissioner for Human Rights, in his 2014 address to the PACE Committee on Equality and Non-Discrimination, explained that: “Many who could otherwise function in the community without a great deal of support have become unable or afraid to leave these institutions, because they have known nothing else” and this pattern “cultivates a feeling of helplessness; (…) erodes one’s confidence in one’s ability to make choices; (…) deprive(s) people of life experiences and skills needed to build up autonomy and identity”. In this address, he also explicitly criticized Romania’s disability rights record and investments into building and refurbishing such institutions.

Committee of Ministers’ concerns about the implementation of these ECtHR judgments

To implement ECtHR judgments concerning systemic or structural human rights violations, governments must take general measures to ensure the non-repetition of similar violations: these measures can range from legislative reforms, public policies, changing domestic judicial and administrative practice, capacity building measures, ensuring adequate budgeting, and making practical arrangements. The Committee of Ministers, the body tasked with supervising the implementation of ECtHR judgments, examines the judgments periodically, delivering decisions which set out recommendations to the national authorities and express concerns when reviewing progress. 

On one hand, its function is to ensure that problems identified in the judgments are addressed by national authorities in a Convention-compliant manner. It is not legally bound to uphold standards of other human rights instruments which grant higher protection than the ECHR (such as the UN CRPD). On the other hand, the supervision process is not limited to the Court’s explicit indications, because the Committee of Ministers needs sufficient flexibility to supervise measures which are “feasible, timely, adequate and sufficient” (Ilgar Mammadov v. Azerbaijan [GC], 2019, § 184), and to take into consideration new factors. This means that, if the measures taken by the authorities prove to be insufficient, or ineffective, further solutions may be explored and recommended.

The June 2023 decisions of the Committee of Ministers appropriately reflect (and respond to) the gravity of these long-standing structural and systemic problems in Romania. In their examination of the Parascineti, Cristian Teodorescu group, N., and R.D. and I.M.D. v. Romania cases, the Committee “expressed their outmost concern at the high risk of further violations” and “strongly deplored the lack of any indication that the authorities, in particular government departments with key roles and responsibilities, are now engaged in devising a strategic, comprehensive, and co-ordinated response”. The Romanian authorities were exhorted at a high political level to demonstrate firm commitment to solve these issues. Interestingly, Council of Europe member states were invited to raise these issues in their contacts with Romanian authorities – a recommendation which has not been made often in other cases.

Moreover, the Committee of Ministers observed that the legislative measures initiated by Romania, which partially address the need for a legal framework for the protection of vulnerable adults, are not yet adequately and effectively applied. These measures remain only on paper, as they are unimplementable in practice due to budgetary and capacity constraints. The Committee of Ministers requested national authorities to address the concerns raised by civil society regarding the challenges in implementing this new law, and to increase efforts to further enact representation solutions for vulnerable persons who do not have relatives able or willing to take over support or representation duties under the new system.

The Committee also highlighted the need to ensure human rights compliance and accountability for the treatment of institutionalized people with disabilities, “pending the completion of the on-going process of transition to community-based, independent living” – a tacit acknowledgment to the relevance of Article 19 of the UN CRPD, which guarantees the right of persons with disabilities to live independently and within the community.

These decisions apply high pressure on the Romanian authorities to act and provide valuable guidance for the next steps in the implementation process, indicating which challenges should be addressed in ensuring the effectiveness of reforms. The indirect reference to deinstitutionalisation as a measure which improves the treatment of people with mental disabilities currently living in institutions is a positive development. As regards living conditions in psychiatric hospitals and unlawful psychiatric placements, the Committee refrained, at this stage in the implementation process, from addressing specific measures, and centred its’ approach on the lack of political will and coordination at national level. However, after the Romanian authorities will provide “a clear and precise roadmap with a tight timetable for the completion and for the adoption at the highest level of government of a comprehensive action plan”, the Committee will be able to assess progress again and whether additional measures are required. Now, it is time for the Romanian authorities to act.

The UN CRPD standards as the way to effective long-term solutions

In view of future efforts to effectively implement these judgments, and future examinations of progress by the Committee, it is important to determine the adequate standards for the implementation measures to follow. This section argues that only the standards of the UN CRPD can provide an adequate and effective response to the problems in these judgments.

This is because the UN CRPD standards prescribe the development of community-based mental health and social services; they also oppose the creation of new institutions for persons with disabilities. This approach moves away from the medical approach – which keeps people with mental disabilities in closed environments where they are at higher risk of human rights violations, and which denies them the right to live independently and be included in the community (Article 19 of the UN CRPD). Without shifting from this medical and coercive model of disability to the human rights model of disability, the problems identified in these ECtHR judgments will not diminish.

While the latest decisions of the Committee of Ministers have not addressed at this stage the need for community-based mental health and social services, the ongoing examination of these cases will provide ample opportunity for assessing the necessity and relevance of such services later. This will be assessed based on the progress achieved and effectiveness of other measures to be taken.

The creation of alternative community-based mental health and social care services, (including living alternatives) is essential in addressing the overcrowding and living conditions of detention in psychiatric hospitals (Parascineti v. Romania), in overcoming the deficiencies in the care of persons with mental disabilities in institutions, in ensuring the efficiency of the reform on representation for persons with mental disabilities and preventing medical and social neglect (Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania) and in putting an end to the practice of unlawful involuntary placements (Cristian Teodorescu v. Romania).

All these issues are interconnected: the lack of services; the unlawful psychiatric placements, the overcrowding and poor living conditions, and the shortcomings in social and medical care. Both the Romanian Ombudsman and the CPT have already argued that overcrowding in Romanian mental health institutions is linked to the lack of alternative, community-based services. The absence of these services leads to the overuse of placements in psychiatric hospitals, which causes the psychiatric system to become overburdened. This is a major underlying factor causing pressure on the psychiatric and social care system. There is a close connection between the two systems: a high number of psychiatric patients are persons with intellectual disabilities who are transferred from social care homes due to challenging behaviours (and unwillingness or inability or staff to deal with them), as well as ‘social cases’ – persons who do not need psychiatric treatment but cannot be released due to lack of family or services. When such services and alternatives are unavailable, placement in psychiatric hospitals and social care homes becomes the only option.

Furthermore, the deprivation of liberty of persons with mental disabilities is unlawful if it is not warranted (Stanev v. Bulgaria [GC], 2012, § 145). Therefore, when it is caused by a lack of community services and alternatives, compulsory psychiatric confinement cannot be considered ‘warranted’. The overabundance of unwarranted placement measures, causes, in turn, overcrowding and insufficient staffing in psychiatric hospitals. This also diminishes the quality of medical and social care received by patients, and the capacity of psychiatric hospitals to abide by the legal provisions and respect legal safeguards concerning placements and periodic, timely reviews.

For example, in previous 2019 notes concerning the examination of Cristian Teodorescu v. Romania and Parascineti v. Romania, the Secretariat of the Committee of Ministers identified several problematic practices regarding placements in psychiatric hospitals. These practices include the de facto involuntary detention of voluntary patients, without the necessary legal safeguards; maintaining under involuntary placements patients who do not require psychiatric treatment but do not have families or suitable accommodation in social care facilities; subjecting persons with intellectual disabilities to involuntary placements in forensic psychiatric confinement (as a security measure), despite the fact there is no case for recovery from intellectual disabilities. Such practices could be prevented or avoided if effective community-based alternatives existed.

Alternative services are also essential to ensure the effectiveness of the new legal framework suited to the specific needs of people with mental disabilities (which pertains to Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania judgment). The implementation of this law is key in ensuring the efficiency of the legal framework meant to provide a tailor-made response for the independent representation of persons with mental disabilities. This is, in part, because the judiciary gives weight to the living situation and independent life skills of persons with mental disabilities when assessing requests to vacate guardianship and determine protection measures. This means that persons with disabilities would need access to independent living options and other social services for this law to be successfully applicable.

Without these alternatives provided by the UN CRPD standards, only coercive and liberty-depriving practices will be available for persons with mental disabilities.

Furthermore, the difference between the UN CRPD standards and the Convention standards has led to previous decisions of the Committee of Ministers (in other similar cases concerning psychiatry, in Bulgaria) prescribing or encouraging measures which are Convention-complaint, but not CRPD compliant. In these instances, the Committee of Ministers encouraged the creation of “medical residential centers” and the direction of a faulty “deinstitutionalization” strategy. In doing so, it not only endorsed a lower standard of protection (which it may do), but it legitimized inappropriate measures which go against Article 19 of the UN CRPD because they perpetuate institutionalisation. This approach is not as such contrary to the ECHR as understood today, but it is both unnecessary and harmful. These two examples are relevant in the Romanian context for two reasons. First, the risk of ignoring UN CRPD standards in the implementation of the Romanian judgments may lead to similar outcomes, which should be avoided, because it would not enable effective and adequate solutions to the implementation of these judgments. Second, these examples pertain to the Committee of Ministers’ evolving position as to the UN CRPD standards in the ECtHR implementation process. This evolving position can be seen in the June 2023 decisions concerning Romania, where the Committee referred to the “on-going process of transition to community-based, independent living” when addressing issues surrounding the poor treatment of people with disabilities in institutions. In addition, in one of the Bulgarian cases mentioned above, in March 2023, the Committee did question the effectiveness of building new family type-homes in remote locations, where qualified staff and services are hard to come by, and noted the importance of availability of social services when establishing new facilities in communities. These developments in the jurisprudence of the Committee of Ministers, which take into consideration UN CRPD standards, are welcome.

Conclusion

When it comes to the implementation ECtHR judgments concerning psychiatry and mental health in Romania, the measures (recommended and taken) should follow a human rights-based approach to disability, based on the understanding of the circularity of human rights violations which defines the lives of persons with mental disabilities living mental health institutions, and the real causes behind these systemic issues.

This can only be achieved by ensuring that the reforms are in line with UN CRPD standards. This approach can be fulfilled through the development of community-based mental health and social services. It is also important to ensure that any new measures which hinder the process of fulfilling the right to live independently and within the community of persons with mental disabilities are avoided.

Without alternative and community-based services, people with mental disabilities will remain trapped in unescapable patterns of human rights violations.

An earlier version of this text appeared on the website of the European Implementation Network (EIN): https://www.einnetwork.org/blog-five/2023/5/4/trapped-between-the-echr-and-the-un-crpd-prolonging-an-invisible-human-rights-crisis.

The post The implementation of ECtHR psychiatry-related judgments in Romania: UN CRPD standards as a way forward appeared first on Strasbourg Observers.

By Dr. Júlia Miklasová

Introduction

The judgment rendered by the Second Section of the Court in Mamasakhlisi and Others v. Georgia and Russia relates to the allegations of human rights violations by the de facto Abkhaz authorities in Abkhazia before the 2008 Russia-Georgia War and Russia’s recognition of Abkhazia. In this case, filed against Russia and Georgia, the Court found both States exercising jurisdiction in the relevant period; ultimately, only Russia was held responsible for violating Article 3 ECHR, Article 5 (1)(a)(c) ECHR and Article 6 (1) and 6 (3)(c) ECHR. Unfortunately, it took almost 20 years for the Court to deliver the judgment – two out of three original applicants have passed away since filing the application. Moreover, in light of Russia’s expulsion from the Council of Europe following Russia’s aggression against Ukraine and its lack of communication with the Court since March 2022, the prospect of compliance with the judgment is rather illusory.

Central to the case is the preliminary question of the applicability of the ECHR in this de facto entity from 2001 until 2007. Previously, the Grand Chamber’s Georgia v Russia (II) established Russia’s effective control over this territory in the period subsequent to five days of active hostilities between Russia and Georgia in 2008 (Georgia v Russia (II), para. 174). Mamasakhlisi largely builds on the Court’s jurisprudence concerning extra-territorial spatial model of jurisdiction. However, given the case’s temporal scope, the Court faced a challenging factual context, characterised, among others, by the hybrid elements of Russia’s control. This blogpost examines the Court’s approach to establishing Russia’s jurisdiction in this period in light of its previous jurisprudence.

Overview of the Facts

Abkhazia declared independence from Georgia in 1992 (para. 26). The Georgian-Abkhaz conflict ensued between 1992 and 1994. In the 1994 Ceasefire Agreement, the parties agreed to establish a security zone where no troops or heavy military equipment were allowed. They also agreed that the Commonwealth of Independent States Collective Peacekeeping Force (CIS CPF) would monitor the ceasefire. A protocol to the agreement defined its mandate, including the freedom of movement within the security zone (para. 33). The 1994 Decision of the Council of the CIS Heads of State decided that the peacekeeping troops would be mainly staffed from the Russian troops (para. 34). In 1996, CIS adopted a decision prohibiting the member States from supporting Abkhazia in a variety of spheres (para. 35).

A Georgian national, Mr Mamasakhlisi (the first applicant), claimed that in 2001 a hand-made grenade intended for fishing accidentally exploded in his hands at his mother’s apartment in Abkhazia and caused, among others, his right hand and three fingers of his left hand to be blown off. He alleged that five days after the explosion, he was moved to the de facto Security Service of Abkhazia’s detention facility where he was questioned about his intention to blow up targets in the region (which he denied) and subjected to mock executions by the de facto authorities. After several months, he confessed to the acts he was questioned about. In 2002, the de facto Abkhazia Military Court sentenced him to twelve years’ imprisonment. The first two years, he spent in the cell of the de facto Ministry of Interior’s building. After that he was transferred to a prison in Abkhazia. He was released in 2007.

In 2003, the de facto Abkhaz authorities arrested the third applicant (born in 1922) for illegally crossing the de facto Georgia-Abkhaz border and accused him of wearing an explosive belt. The de facto Abkhazia Military Court found him guilty and sentenced him to six years’ imprisonment. He was released in 2005.

Summary of the Judgment

Regarding extraterritorial jurisdiction, in light of the applicants’ submissions, the Court first had to establish whether Russia exercised ‘effective control or at the very least a decisive influence over Abkhazia as a whole’ between 2001 and 2007 (paras. 320-321). It also considered the elements before and after this period if relevant to the jurisdiction (para. 240, para. 321).

The Court examined the scope of ‘military involvement’ of Russia in Abkhazia. First, regarding the Georgian-Abkhaz conflict in the 1990s, it established that the separatist victory ‘would not have been possible without the involvement of at least certain forces and military equipment emanating from the territory of the Russian Federation’ (para. 323). Second, the statements of high-level Russian officials in connection with the fact that the majority of the population and peacekeepers held Russian nationality ‘sent a strong signal of dissuasion against actions of the Georgian government to regain its control over Abkhazia’ (para. 324). Third, the CIS CPF amounted to between 1.500 and 3.000 Russian troops; their area of responsibility constituted about a third of the whole of Abkhaz’s territory (para. 325). The Court also considered the EU Fact-Finding Mission report, according to which the ‘peace process in Abkhazia was left largely in the hands of Russia’ (para. 326). Moreover, the Russian military base’s infrastructure in Gudauta was taken over by ‘the CIS CPF (in fact, Russian) peacekeeping force’ (para. 327). Russia stated that ‘aircraft crews, operating personnel and security units had been stationed there’ (para. 190). Among others, the subsequent opening of the Russian military base stationing up to 3.800 soldiers in Abkhazia was also relevant.

Regarding political support, the Court found evidence of ‘a strong degree of political dependence of Abkhazia on Russia’ (para. 330), highlighting the policy of passportisation, staffing of key positions in Abkhazia by Russia’s ‘former civilian and military leaders’, expressions of support of Abkhazia by the Russian officials, and statements of Abkhaz leaders regarding ‘Abkhazia’s strong reliance on Russia’ (paras. 330-331). The Court also considered that ‘the Abkhaz economy was heavily reliant on that of Russia’ (para. 332). The Court concluded that ‘Abkhazia’s high level of dependency on Russian support during the period in question allows the Court to conclude that Russia exercised effective control and decisive influence over Abkhaz territory’ (para. 339).

On the merits, the Court, in line with its case law, held that given Russia’s effective control over Abkhazia, ‘it is not necessary to determine whether or not Russia exercised detailed control over the policies and actions of the subordinate local administration’ (para. 411). It then found a violation of Article 3 ECHR by Russia in respect of the first and third applicants. Regarding the violation of Article 5 (1) ECHR, the Court had to examine whether ‘each of the applicants’ respective detention can be regarded as “lawful”’ as they were ordered by the de facto authorities (para. 422). The Court followed its previous case law (Ilașcu, para. 460). Given, among others, the scarcity of information regarding the Abkhaz legal system, the Court was ‘not in a position to verify’ the fulfilment of the relevant conditions (para. 425). It noted that there ‘is also no basis for assuming that there is a system reflecting a judicial tradition compatible with the Convention’ (para. 426). Ultimately, there was a violation by Russia of Article 5 (1)(a)(c) in respect of both applicants, as well as of Article 6 (1) and (3)(c).

Under public international law, Abkhazia is recognised as part of Georgia, and according to the Court this ‘gives rise to a positive obligation’ for Georgia, relating to the measures to ‘re-establish its control over Abkhaz territory, as an expression of its jurisdiction, and to measures needed to ensure respect for the individual applicants’ rights’ (para. 319). On the merits, the Court found no violations of this obligation by Georgia.

Analysis

Compared to Georgia v Russia (II), the context of Russia’s influence over Abkhazia in the relevant period was more challenging. First, Russia still formally recognised Georgia’s sovereignty over Abkhazia. Russia also claimed to have complied with the 1996 CIS-mandated blockade of Abkhazia (para. 206). Thus, apart from openly supporting Abkhazia during this period (see, for example, para. 297), Russia also used covert or hybrid tools or actions below the governmental level. Second, unlike in other cases, in the period covered by the judgment the Russian troops in Abkhazia were the CIS CPF (Russian) peacekeepers, stationed there with the initial consent of Georgia. However, the closure of the Russian military base in Gudauta was never internationally confirmed despite Russia’s commitments made at the 1999 OSCE summit, and its infrastructure was effectively transferred to the CIS CPF. Third, even the EU Fact-Finding Report on the conflict in Georgia noted the Abkhazia’s elite’s will for independence not only from Georgia, but also from Russia – unlike, for example, South Ossetia (Report, 134). Lastly, while the so-called secession of the Donetsk and Luhansk People’s Republics in eastern Ukraine was characterised by the Court as ‘managed and coordinated by the Russian Federation’ (Ukraine and the Netherlands v Russia, para. 693), the Russia’s government support of the Abkhaz forces in the secessionist conflict with Georgia in the 1990s was described by the EU Fact-Finding Mission as ‘inconsistent’ (Report, 6). Against this background, the question of how the different facets of the Russian influence and support translated into its jurisdiction requires further scrutiny.

Initially, the Court reiterated the standard formulas to define the effective control test according to which the Court ‘will primarily have reference to the strength of the State’s military presence in the area’ (para. 311, emphasis added). However, when applying the principles to the facts of the case, it used a different formulation. It stated that ‘[t]he assessment will primarily depend on military involvement’ (para. 320, emphasis added), echoing the terminology used in Chiragov (para. 169). This is significant since, arguably, military involvement is a less stringent criterion than military presence. The Court took several factors into account.

First, to establish effective control, the Court normally considers the third State’s military support of the separatists during the conflict with a territorial State (direct participation of soldiers and supply of weapons and military equipment) and thereafter. In the present case, the Court was unable, based on the available evidence, to conclude as to ‘the composition of the armed forces that secured control over Abkhazia in September 1993, or the precise type and level of support that they received from external sources, or who exactly the latter were’ (para. 323). This echoes a similar statement concerning Armenia’s support of Nagorno-Karabakh in Chiragov (para. 173). However, in Chiragov, the Court ultimately stated that ‘it is hardly conceivable that Nagorno-Karabakh’ would win against Azerbaijan ‘without the substantial military support of Armenia’ (Chiragov, para. 174, emphasis added). In the present case, the separatist victory in the early 1990s ‘would not have been possible without the involvement of at least certain forces and military equipment emanating from the territory of the Russian Federation’ (para. 323, emphasis added). Thus, given this lack of direct attribution to Russia, the level of Russia’s military support of separatists in the conflict remained unclear, especially in comparison to that of Armenia in Chiragov or even of Russia in Ilașcu (compare para. 380, especially the Court’s reliance on the rules of State responsibility for ‘abuses of authority’).

Second, the Court also considered the element of the Russian dissuasion against a potential Georgian attempt at retaking control in Abkhazia (para. 324, see above). This element already featured in the case law on Transnistria as a factor compensating for the decrease of the Russian troops on the ground (Ilașcu, para. 387; Catan, para. 118.).

Third, the Court took the CIS CPF into account for Russia’s ‘military involvement’ with Abkhazia (para. 320). Notably, the Court did not rule on the applicants’ claims of the lack of neutrality of the CIS (Russian) peacekeepers or their direct support of Abkhazia (para. 296; compare Ilașcu, paras. 100 and 391). It was unable to conclusively rule on the allegations of several offences committed by them, ‘supporting Abkhaz fighters and acting at times outside the security zone’ (para. 325). It, however, considered the mission’s objective elements, including the staffing of the Russian troops, the size of the troops, the scope of the territory under their responsibility and their presence in Gudauta and Sukhumi, which are located outside of the security zone. In addition, it considered a broader context of the peace process (‘left largely in the hands of Russia’; ‘[t]he conflict was in effect frozen’) and Russia’s position that Georgia’s demand to replace the CIS CPF with the international police force was ‘a provocation’ (para. 326). Moreover, the infrastructure of the Russian military base – the closure of which was never verified – was effectively transferred to the peacekeepers. The Court also considered later events – including the opening of Russia’s military base in Abkhazia in 2009. 

The Court’s analysis of this aspect is noteworthy since it is the first time that the presence of the peacekeeping forces (i.e. with the original consent of a territorial State) featured so prominently in the assessment of extraterritorial spatial jurisdiction. For example, in Ilașcu, the Court referred to the Russian contingent of the peacekeeping forces only tangentially; the key military factor was the presence and conduct of the ex-Soviet 14^th Army in the region (Ilașcu, paras. 380 and 391). Importantly, in the present case, even without the pronouncement on the CIS CPF’s neutrality, its objective criteria, the larger context of the peace process, and additional contextual elements were sufficient for the Court. These elements arguably also distinguish this case, for example, from the current context of the Russian peacekeepers in Nagorno-Karabakh.

Ultimately, the Court concluded that ‘Russia’s sustained military connection to the region’ during, prior and after the relevant period ‘enables it to conclude that the Russian State wielded sufficient military influence over Abkhaz territory for it to be considered “dissuasive” and as such decisive in practice’ (para. 329, emphasis added). This terminology is especially revealing as, for example, the reference to ‘sustained military connection’ has not been used in the previous case law and arguably showcases a lower threshold of the military aspect of the jurisdictional test (compare Chiragov, para. 180), ultimately referred to as ‘effective control and decisive influence’ (see below).

The passportisation – a hybrid element of Russia’s influence at the time – played out in three ways. First, the Court considered it in the context of Russian dissuasion (para. 324, see above). Second, it informed the Court’s assessment of Russia’s political support of the entity (para. 330). Third, the payment of pensions to the Russian citizens in the region, equivalent to half of Abkhazia’s annual budgets, was considered a factor of Russia’s financial support (para. 335).

Regarding other relevant indicators – political, economic and financial support – the Court considered diverse elements – among others, the numerous agreements of cooperation between Abkhazia and different Russian entities (private, local, controlled by the State, para. 332), the scope of Abkhazia’s de facto integration into the Russian economy in several fields (paras. 333-334) and significant investments (para. 336; compare Catan, para. 120; Chiragov, para. 184). This showcases the malleability of the effective control test (regarding economic and financial support), where the attribution rules do not seem decisive for certain factors to be taken into account. In the present case, the benefit of hindsight also played a role. Specifically, the Court considered that in 2009 the agreement was concluded between Russia and the entity on the reciprocal protection of investments since 1994 (paras. 333, 336 and para. 140).

Conclusion

Compared to Georgia v Russia II, it follows from Mamasakhlisi that the level of Russia’s military influence over the de facto Abkhaz territory in the relevant period was lower. The Court’s terminology is especially revealing – avoiding the reference to ‘military presence’, analysing ‘military involvement’, and highlighting Russia’s ‘military connection’ to and ‘influence’ over the region. The Court seems to have adjusted the military aspect of the jurisdictional test, arguably lowering it even by comparison with Chiragov. Ultimately, the Court established that ‘de facto Abkhazia was only able to survive because of Russia’s sustained and substantial political and economic support, and dissuasive military involvement’ (para. 339, note the order of these elements). Thus, ‘Russia exercised effective control and decisive influence over Abkhaz territory’ (para. 339, emphasis added, note the compounded test; compare Catan, para. 122 referring to control and influence over the de facto authorities). Therefore, Mamasakhlisi will be important for future cases relating to the extraterritorial spatial jurisdiction concerning de facto territories characterised by a significant third State’s support and its contested military presence (for example, Nagorno-Karabakh).

The post Mamasakhlisi and Others v. Georgia and Russia: Russia’s Effective Control over Abkhazia Before the 2008 War: Peacekeepers, Passportisation and Other Hybrid Elements appeared first on Strasbourg Observers.

Tobias Mortier

Given Russia’s rather poor track record in terms of its protection of human rights, one might presume that the number of Article 18 violations found by the European Court of Human Rights (‘the Court’) in respect of Russia would be significant. After all, Article 18 provides protection against the misapplication of the Convention by its Contracting Parties – and accordingly serves to protect the principles of democracy and the rule of law. Judgments where a violation of this provision is established therefore attain a certain level of gravity. The list of States in respect of whom such a violation has been found is rather brief: only eight States have so far been found to have imposed restrictions onto Convention rights for motives other than the ones in pursuance of which they were asserted to have been restricted, with Poland being the newest member since the Court’s Juszczyszyn judgment (see also here). Since its inception, the Court has found such violations against Russia in the cases of Gusinskiy, Navalnyy, Navalnyy (no. 2) and Kutayev. The recent revocation of renowned human rights defender Vanessa Kogan’s residence permit brings this total to five. This blogpost provides a dissection of this judgment, giving particular attention to the Court’s assessment of the avowed and hidden aims under Articles 8 and 18.

Facts

The first applicant, Ms Kogan (‘the first applicant’), is an American citizen who lived and worked in Russia as director of Astreya, a partner NGO of the Stichting Justice Initiative which sought to conduct strategic litigation before the Court. The second applicant, her husband, is a Russian lawyer who predominantly worked on the implementation of the Court’s judgments against Russia. The third and fourth applicants are their children, with dual American and Russian nationality. The first and second applicants had participated in briefings to the Committee of Ministers of the Council of Europe on the implementation of judgments in Russia. After having been granted several employment-based visas, the first applicant obtained a three-year and five-year residence permit, in 2014 and 2017 respectively. When she applied for Russian citizenship in 2020, the migration service of the Moscow Department of the Interior (‘MVD’) rejected her application and revoked her residence permit on the advice of the Department of the Federal Security Service of the Russian Federation for Moscow and Moscow Region (‘FSB’), who alleged that she posed a ‘threat to national security’. She was subsequently ordered to leave the country within fifteen days.

Subsequent appeals against these decisions proved unsuccessful. Only during the preliminary hearing of her case before the District Court of Moscow was the applicant informed of the existence of the FSB report, on the basis of which she had been labelled a threat to national security. However, she was not granted access to this report, on the grounds that this concerned classified information. The absence of the report from the materials available to the District Court did not preclude it from finding the measures taken in respect of the applicant were proportionate, stating that the public interest in upholding the ‘socially meaningful values provided for in the Constitution’ justified the impact which the measures would have on her family life.

While the reason why she would pose a ‘threat to national security’ may not have been clarified in the domestic judgments, certain events leading up to the granting of her second residence permit and thereafter just might be able to. When the applicant was in the midst of the process to obtain her five-year residence permit, she was contacted by a representative of the FSB who asked her to provide them with all sorts of information pertaining to Astreya (which she did), as well as a list of other NGOs who exhibited ‘animosity’ toward Russia (which she explained she was unable to provide since she did not know any such NGOs). She was later again asked to hand over information concerning Astreya and its clients in exchange for a new position and financial compensation, which she also refused. Additionally, between 2019 and 2020, several State interferences with the work of Astreya and its partner organisations occurred, including raids conducted by law-enforcement authorities of NGOs’ offices and their employees’ homes, and confiscations of the organisations’ equipment. Finally, several State-supported media outlets had begun to publish defamatory statements regarding her and Astreya following the revocation of her residence permit, accusing her of having a political agenda and wanting to overthrow those in power. However, the Federal Communications Agency refused to conduct any inquiries into these.

Judgment

After confirming its previous case law in which it had stated that it had jurisdiction to examine cases against Russia despite the latter’s departure from the Council of Europe, the Court noted that the Russian government had failed to cooperate with the Court as requested. More specifically, it had not submitted any documents pertaining to the raids and searches conducted, nor had it disputed the applicant’s account of the events. Additionally, the government had not submitted the FSB report on the basis of which the applicant had been labelled a threat to national security either. The Court accordingly found a violation of Article 38, indicating that it would ‘draw appropriate inferences’ from the government’s failure to submit the requested documents (para. 54).

Next, the Court turned its attention to Article 8. Considering the significant impact of the revocation of the first applicant’s residence permit on the applicants’ family life and on the first and second applicant’s professional lives, the Court noted that the measures interfered with Article 8. It also stated that it would dispense with ruling on the lawfulness of the measures and the legitimacy of the purported aims in light of their manifest lack of necessity in a democratic society (para. 59). The Court denounced the manifest procedural deficiencies which plagued the domestic proceedings. Not only had the applicant never been granted access to the FSB report, but the domestic judgments had also at no point in the proceedings elaborated on the reasons why she was considered a threat to national security. The applicant, therefore, had never had a fair opportunity to challenge the allegations. These ‘gross procedural defects […] went beyond the permissible procedural limitations in cases of expulsion on national security grounds,’ resulting in a violation of Article 8 (para. 61).

Lastly, the Court inquired whether the applicant’s residence permit had been revoked with the ulterior motive of punishing her and her husband for her human rights-related work – and consequently, whether there had been a violation of Article 18 in conjunction with Article 8. Given that the Court had expressed its willingness to accept that the revocation of a residence permit may pursue the legitimate aim of protecting national society while dispensing on considering the legitimacy of this aim in the present case, its review at this stage effectively became a two-tiered one: (a) whether the government had acted out of ulterior motives; and (b) whether these ulterior motives predominated over the asserted aim. The Court answered both questions in the affirmative. In reaching this conclusion, it considered the potential chilling effect of the measures on other human rights defenders in Russia, the State’s failure to respond to the online publications by State-supported media outlets, the accuracy of the applicant’s recollections of the events (coupled with the State’s failure to submit any counterevidence on this point) and the overall hostile context towards civil society in Russia. In addition, the Court took particular notice of statements made by the European External Action Service and the European Union delegation at the Council of Europe. The Court also expressed doubts as to the veracity of the government’s assertions that the revocation had pursued any national security interests – but did not expressly repudiate this aim either. Overall, the Court found it sufficiently established that the domestic authorities had predominantly been led by the hidden motive of punishing Ms Kogan and her husband for their work and preventing them from continuing said work in Russia (para. 77). Russia was ordered to pay the applicants EUR 9,800 each in respect of non-pecuniary damage, as well as EUR 6,525 to cover the applicants’ costs and expenses.

Dispensing with ruling on the legitimate aim requirement: a flawed approach

The Court’s predominance test under Article 18 is a controversial one. More specifically, several critics have pointed towards its inherent risk of normalising bad faith (see here and here). In this judgment, too, Judge Serghides wrote a Concurring Opinion in which he reiterated the critique he previously had raised in his Concurring Opinion in Merabishvili v. Georgia. More specifically, he argues that the very idea that the identification of an ulterior motive might not lead to a violation of Article 18 if it were not the predominant aim pursued contravenes ‘the letter and purpose of Article 18’ (para. 3). Elsewhere I have previously expressed concern regarding the manner in which predominance is currently assessed as well (see here). However, this blogpost does not entail a discussion on the pros and cons of the predominance test. Instead, I argue that the issue, in this case, is not whether or not predominance is a concept to which the Court should adhere, but rather that predominance should not have been assessed, to begin with.

When the Court reviews a case under Article 18, its review inevitably entails two questions: (a) whether the complaint regarding the hidden motive constituted a fundamental aspect of the case; and (b) whether the allegation concerning the hidden motive was proven sufficiently. If both questions are answered in the affirmative, a violation of Article 18 will follow – unless the Court had previously also found that the interference, which was argued to have been actuated by some hidden motive, pursued a legitimate aim as well. In that case, it will only find a violation of Article 18 if this hidden motive was predominant. That is the very basic idea behind the predominance test.

To be or not to be predominant; that is not the question

When we return to the case at hand, the Court commenced its Article 18 reasoning by emphasising that the alleged hidden motive of punishing Ms Kogan and her husband for their work must have been the predominant one. The reason for its insistence on this point is the Court’s previous finding that it would operate on the assumption that the challenged interference could have pursued the legitimate aim of protecting national security. This is not uncommon; the Court often chooses to dispense with ruling on the legitimate aim requirement (as well as on the lawful basis requirement) if it thinks that more salient issues present themselves under the ‘necessary in a democratic society’ requirement (see critically here). This practice does not appear to be met with much resistance among the bench. For instance, in Karuyev v. Russia Judge Pavli even expressed his disappointment that the Court had found a violation of Article 10 on the grounds that there was no clear and foreseeable basis in domestic law for a conviction for spitting on a portrait of Vladimir Putin, instead of omitting this issue and focusing on the lack of necessity of this measure in a democratic society (para. 1). Yet, I would argue that the practice of dispensing with ruling on the legitimate aim question is flawed for the following reasons.

The practical and symbolic value of the legitimate aim requirement

Firstly, on a more general note, one must not lose sight of the role which the legitimate aim requirement plays within the broader framework of the Court’s proportionality analysis. Indeed, deficient reasoning as to the legitimate aim prong makes for a flawed proportionality assessment. The analysis following the identification of the aim pursued and the ascertainment of its legitimacy builds on these conclusions. For instance, an interference can never be proportionate in the abstract; the applicant’s interests must be outweighed by the governmental interests in pursuing that aim. Hence, when it leaves open the question of which aim was pursued (and whether this aim was legitimate), the Court effectively has to guess what interests truly were at play that urged the respondent government to impose restrictions upon the invoked Convention right. Not only will this result in imperfect reasoning, but it also adds to the trivialisation of the legitimate aim test as well.[i]

This trivialisation is all the more regrettable in light of the peculiar nature of the legitimate aim requirement. Unlike the necessity or proportionality requirements, the legitimate aim test is a categorical one; a finding that the aim in question was illegitimate is tantamount to a finding that the interference never could have been acceptable in pursuit of that aim. Conversely, a finding of disproportionality does not preclude the government from still adopting the measure in the future – just in a less restrictive fashion. When a Court strikes down an interference on account of a lack of a legitimate aim, it accordingly sends a strong signal of disapproval to the respondent State. The requirement, therefore, has a strong symbolic value to it as well, which perishes when the Court chooses to omit this step in its review.

Human rights defenders as a threat to national security

Let us now return to the case of Ms Kogan, where the Court chose to dispense with ruling on the legitimate aim requirement as well. It referenced its judgment in Gaspar v. Russia in stating that it had accepted in the past that the revocation of a residence permit might be justified for reasons of national security. Yet, at no point throughout the proceedings did the Russian government succeed at making it at least facially plausible that Ms Kogan had truly posed such a security threat. This is further exacerbated by the fact that the government failed to hand over the FSB report on the basis of which she had been labelled as such. Curiously, only a couple of paragraphs before the Court had promised it would draw inferences from the government’s failure to submit the necessary documents upon finding a violation of Article 38.  Apparently, this promise did not extend to its legitimate aim assessment; the Court’s immediate turn to predominance under Article 18 suggests that it (at least theoretically) accepted that a legitimate aim had constituted the motivation behind the challenged measures.

However, not only were the security threat allegations wholly unsubstantiated, judging by the overwhelming evidence reviewed under the Court’s Article 18 assessment, they also appear to be manifestly untrue. Even the Court itself appeared to realise this when it stated that the manifest procedural defects and the abundance of evidence in favour of the existence of the alleged hidden aim ‘cast serious doubt on the Government’s assertion that the main reason for the revocation of the first applicant’s residence permit was indeed national security interests’ (para. 74). Indeed, the aim of the protection of national security appears to have been nothing but a veil to cover the authorities’ actual, sole intention: punishing the first applicant and her husband, and removing them from the scene of human rights defenders in Russia. The total absence of any visible security concerns, the pressure exerted onto the applicant by FSB officials to hand over all sorts of information, and the raids carried out in the offices and homes of various human rights defenders in Russia, all appear to corroborate the argument that it was precisely the work of the two applicants (which also entailed several collaborations with the Court itself) that constituted the threat according to the Russian authorities. By endorsing the aim of protecting national security itself (even if only in the abstract), the Court consequently appears to accept that the first applicant – at least partially – could have been considered to pose a security threat on account of her admirable work. Surely this was not the Court’s intent – which proves yet again why it is not wise to avoid enquiring into the asserted aims by deliberately leaving the legitimate aim question open.

Conclusion

The Court has clarified on several occasions that retaliatory aims cannot constitute permissible bases for governmental action. Particularly pertaining to human rights defenders and NGOs, the Court notes that measures actuated by retaliatory motives attain significant gravity in light of the important role which these defenders and NGOs play in a democratic society (see also Kavala v. Turkey, para. 231). The Court reiterated this finding in this case too (para. 77). It is precisely because of the importance which the Court attaches to the work of human rights defenders that its conclusions in the present case feel slightly distorted. For the record, I do not wish to argue that the Court erred in finding violations of Articles 8, 18 and 38; I merely wish to suggest that, particularly with respect to Articles 8 and 18, these violations could (or should) have been established on different grounds that would have allowed the Court to really tackle the most pressing of issues under each provision. After all, the presently exhibited vagueness as to the identification and legitimacy of the aims pursued leaves important questions unaddressed and grants the respondent government too much leeway to cover up their true intentions by hiding behind sham purposes. Aims must not remain elusive or conjectural, and neither should the Court’s reasoning on them.

[i] See also Gerhard van der Schyff, Limitation of Rights: A Study of the European Convention and the South African Bill of Rights (Wolf Legal Publishers 2005) 185.

The post Defending human rights as a threat to national security? The perverse consequences of ignoring the legitimate aim question in Kogan and Others v. Russia appeared first on Strasbourg Observers.

by Giulio Fedele, University of Rome “La Sapienza”, giulio.fedele@uniroma1.it

With its latest decision in the case of Buhuceanu and Others v. Romania on 23 May 2023, the European Court of Human Rights returned to the subject of same-sex couples and legal recognition. To no-one’s surprise, the Court confirmed what it had already established just five months earlier (on 17 January) in the Grand Chamber’s decision of Fedotova v. Russia (and in Oliari and Others v. Italy in 2015, even though with much less clarity), where it held that all the State Parties to the European Convention are required, in accordance with their positive duties under Article 8 of the European Convention on Human Rights (ECHR), to introduce a legal framework that can ensure the recognition and protection of same-sex couples (see more here and here).

Even though the outcome was predictable for this reason, the Romanian case was nevertheless significant. It was the largest ‘same-sex unions’ case’ Strasbourg has ever seen, with 21 couples and 42 applicants overall claiming they could not marry nor have their relationship formally recognised. As such, the decision has already been described as a ‘landmark ruling’ for the protection of LGBT rights in Romania, for the State will now have to make the necessary adjustments to the national legislation to ensure the execution of the judgment. Moreover, the decision came in a climate of intense debate in Romania on same-sex couples, as not only the Strasbourg Court but also the Court of Justice of the European Union found in 2015 that Romania should ensure legal recognition for the purpose of application of European Union law.

Nevertheless, those acquainted with the Strasbourg Court case-law on same-sex couples and legal recognition will probably frown upon some of the findings (or rather the omissions) of Buhuceanu v. Romania. As I will try to show in this Post, in a case that basically replicates the facts and the arguments of Fedotova, the Court chose to ‘tailor’ the findings of Fedotova, relying on some elements while ignoring some of the others. In particular, it seems that the Court (perhaps inadvertently) chose to focus only on the practical perspective of legal recognition (i.e. the disadvantages that result from its absence) while ignoring the whole ‘intrinsic value’ narrative that was used in previous case-law to highlight that same-sex couples have an interest in being recognised per se, for it is a symbol of inclusion, visibility and equality. In doing so, the Court is running the risk of ‘watering down’ the conclusions and the relevance of the ground-breaking judgment that was Fedotova for the protection of same-sex couples under the Convention.

Facts and judgment

The facts and the judgment were similar to the other applications in previous case-law. Usually, this types of cases unroll similarly and are decided in a similar way.

One or more couples notified their intention to marry to the national local authorities. Their request was denied on the ground that it is contrary to national legislation. The couples decided to file an application to the European Court of Human Rights, claiming that the absence of legal recognition violates their rights under the Convention, in particular Article 8 ECHR (right to private and family life) and Article 8 taken in conjunction with Article 14 ECHR (principle of non-discrimination).

The Court proceeded to affirm the existence of a general positive obligation on behalf of the respondent State to afford legal recognition to same-sex couples (‘as consolidated by a clear ongoing trend within the member States of the Council of Europe’, para. 73) and subsequently it examined whether the respondent State had put forward a plausible and acceptable justification for not having discharged this obligation. Since that was not the case, the Court found a violation of the Convention (on the ground of Article 8; an examination of the complaint under Article 14 is usually deemed as not necessary).

So far, the Court has rejected every possible justification from the respondent States: the protection of the traditional family and the institution of marriage (Fedotova v. Russia, para. 212); the protection of minors (ibid., para. 222-223); and the negative attitude of the national population (ibid., para. 219). In Buhuceanu, Romania was destined to the same fate, unsurprisingly, as it decided to rely mainly on the ‘pressing social need’ to respect the ‘unfavourable perception’ of society towards same-sex couples (the Government considered it was fair to present data showing that the majority of people disagreed with the idea that ‘gay, lesbian and bisexual people should have the same rights as heterosexual people’, para. 50).

On the other hand, the Court highlighted that the States enjoy a certain margin of appreciation in deciding the exact nature of the legal regime to be made available to same-sex couples, which may widen or narrow depending on the socio-cultural context and on the degree of European consensus (para. 82 in Buhuceanu).

A purely practical perspective on legal recognition?

What is more interesting, rather than how the Court came to find a violation of Article 8 in Buhuceanu, is how the Court substantiated why same-sex couples are deserving of legal recognition.

The main and only reason the Court chose to highlight is a practical one: with official recognition, there comes rights. These rights are very practical, such as the right to hospital visitation; the right to inherit the partner’s lease; the right to have a joint insurance (see the complete list made available by the applicants in para. 38). In absence of official recognition, those rights are not granted, and the couple is not protected in their private and family life. For this reason, in paragraph 78, the Court affirmed that ‘the applicants have a particular interest in obtaining the possibility of entering into a form of civil union or registered partnership’, the particular interest being a practical one, namely ‘to have their relationships legally recognised and protected – in the form of core rights relevant to any couple in a stable and committed relationship’. While this practical perspective is perfectly understandable (in the end, it is essential for partners to have their say in the financial, economic and legal affairs that affect the relationship) one cannot but remain perplexed that this is the only perspective adopted by the Court in this case, especially if one looks back at the previous case-law on the matter.

Legal recognition it is not (just) about rights, it is not (just) about protection. It is also a matter of inclusion, equality, and dignity, all things that go beyond the practical or legalistic benefits. Legal recognition is about… recognition, indeed, as the Court had the chance to emphasise numerous times in its case-law.

For example, in Vallianatos v. Greece (GC, 2013) the Court felt compelled to underline that entering into a civil partnership has ‘an intrinsic value’ for same-sex couples ‘irrespective of the legal effects, however narrow or extensive, that they would produce’ (para. 81), for it was the only way they could ‘[have] their relationship officially recognised by the State’ (ibid., emphasis added).

The idea that recognition is as important as protection was further reinforced in Fedotova v. Russia, where the Court referred to Vallianatos and Oliari in holding that ‘gaining official recognition for their relationship has an intrinsic value for the applicants. Such recognition forms part of the development of both their personal and their social identity as guaranteed by Article 8 of the Convention. […] Accordingly, official recognition of same-sex couples confers an existence and a legitimacy on them vis-à-vis the outside world’ (paras. 200-201).

Furthermore, in Fedotova, the Court affirmed for the first time in clear terms that, in seeking recognition, same-sex couples have a right to lead a ‘private social life’ (para. 143), which is close to the idea that same-sex couples should be entitled to live their life and their relationships as they wish, deciding how to present themselves to society and whether to register their partnership. In this respect, the Court recalled its ruling in Dadaouch v. Malta to highlight that ‘a person’s civil status (be it married, single, divorced or widowed) formed part of his or her personal and social identity’ (ibid.)

From the previous case-law, it is thus clear that legal recognition is central since not only it is a source of rights and protection, but also it constitutes a means to express the couples’ identity and to acquire legitimacy and visibility in the eyes of the State and society.

Strikingly, all this narrative is absent from the decision in Buhuceanu. There is not a reference to the ‘intrinsic value’ of legal recognition. Article 8 is invoked very briefly, only as it refers to both ‘private life’ and ‘family life’, but there is no mention of the right to lead a ‘private social life’ (see paras. 27-28). The Court did not even assert, as it often did in cases such as this one, that same-sex couples are ‘in a relevantly similar situation to a different-sex couple as regards their need for recognition and protection of their relationship’ (see, for example, Schalk and Kopf v. Austria, para. 99; Vallianatos v. Greece, paras. 78 and 81; and Oliari v. Italy, para. 165). All the arguments that in previous case-law were grounded, in one form or another, on equality considerations, disappeared in this decision. These omissions are even more surprising giving the fact that four judges that were sitting in this case (Judges Eicke, Wojtyczek, Lubarda, Harutyunyan) were also sitting in the Grand Chamber in Fedotova (Judge Wojtyczek was dissenting) and that Fedotova is very recent. Moreover, the applicants relied on the ‘intrinsic value’, since they pled ‘that the lack of legal recognition and protection of their families deprived them of their dignity as spouses, stigmatised them and harmed them – validating and even inviting prejudice towards them’ (para. 36). It is therefore puzzling that the Court decided not to pick up on any of the arguments related to equality considerations and ‘tailored’ the findings of Fedotova to privilege exclusively the practical nature of legal recognition.

The unwillingness of the Court to engage more directly and extensively with the symbolic dimension of recognition and with considerations of equality is further reinforced by the fact that the Court dismissed a separate examination of the complaint under Article 14 ECHR (paras. 85-86). In doing so, the Court relied on Fedotova, where it considered that discrimination was not a ‘fundamental aspect’ of the case (see Dudgeon v. the United Kingdom, 1981, para. 67) and that the finding of a violation under Article 8 ECHR alone was sufficient. Nevertheless, as the partly dissenting Judges Pavli and Motoc highlighted in Fedotova (and similarly Judge Guerra Martins in this case), ‘the applicants’ sexual orientation [is] the sole basis for denying them any form of legal recognition or protection’ (para. 4 of the dissenting opinion). Therefore, not only it seems artificial to maintain that discrimination is a collateral aspect of the case (see here on this point in Fedotova), but this conclusion in the specific context of Buhuceanu reinforces the idea that the Court was unwilling to engage with considerations of equality. The fact that discrimination is at play in this case is even more clear if one looks at the justification put forward by Romania, namely the fact that the national population disagreed with the idea that heterosexuals and homosexuals should have the same rights (para. 50).

Conclusion: mixed feelings

In Buhuceanu v. Romania, the Court has approached the question of legal recognition from a purely practical-legalistic point of view, and ignored the importance and significance of recognition per se. In this regard, it should be noted that same-sex couples look for recognition not only for rights, but also for validation and inclusion: they want to be considered equal to different-sex couples and have the possibility to register their union through the same form of legal partnership. This is a symbolic value that comes with recognition and that should not be diminished or overlooked by the Court.

A study conducted by IZA (Institute of Labor Economics) in 2018, collecting data from 2002 to 2016 from 325.000 people in thirty-two European countries, showed that introducing legal recognition for same-sex couples increased their social acceptance. Beyond practicability, it is clear that recognition serves an important social purpose in this regard and has an ‘intrinsic value’ not only for same-sex couples but also for the system of the ECHR, as it fosters inclusion, equality, democracy and the effectiveness of the Convention. This is why the Court should promote, rather than overlook, the ‘intrinsic value’ of legal recognition.

Moreover, an exclusively practical perspective, as the one adopted by the Court in Buhuceanu, could lead to dangerous results. Accordingly, States could focus on ways to effectively ensure the protection of rights without providing an official form of recognition or registration. Or they could design a legal framework that ensure a certain amount of protection, ‘equal’ to different-sex couples, that nevertheless keeps same-sex couples ‘separate’. This is noted by dissenting judges Wojtyczek and Harutyunyan, who argue that the approach of the Court ‘does not equate legal recognition with registration’ and ‘States may choose among several possible means of granting legal recognition to same-sex couples’, as long as ‘rights and protection are granted ex lege, without the necessity to apply to the domestic courts for protection’ (para. 7 of the jointly dissenting opinion). In this way, the risk is to empty legal recognition of all its significance and symbolic value.

Moreover, this approach runs the risk of being reminiscent of the ‘separate but equal’ doctrine (or ‘private but equal’ as some suggested), that perpetuated racial segregation in the US keeping people of colour ‘separate’ from white people while still affording the former ‘equal’ substantive protection. It is a tendency that is showing occasional symptoms in some of the member States of the Convention, where same-sex couples are distinguished from different-sex couples while it is affirmed that the latter are deserving of their own kind of protection (see for example the Italian Constitutional Court’s decision no. 138/2010, where it was held that same-sex couples enjoy the protection of Article 2 of the Italian Constitution as ‘social formations’ and not of Article 29 as ‘family’). It is a tendency that is contrary to the values of the Convention, and which the Court should avoid encouraging.

For the reasons set above, one cannot but have mixed feelings about Buhuceanu v. Romania. The judgment stands at odds with the previous case-law, in which the Court was mindful not only of the practical dimension of legal recognition, but moreover of its symbolic value. It might be worth noting that the Court will have another chance to retrace its steps and correct its narrative about legal recognition, as other similar applications are currently pending against Poland (for example Przybyszewska and Others v. Poland). All in all, it seems fair to reaffirm once again that legal recognition should be about protection as much as it should be about… recognition.

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Veronica Botticelli

On 20th April 2023, the European Court on Human Rights (‘the Court’ or ‘the ECtHR’) published its unanimous admissibility decision in the Georgia v. Russia (IV) case, adding another ‘brick’ to its ever-growing case law concerning inter-State proceedings. The present inter-State application stems from a set of facts and events whose (il)legality vis-à-vis the European Convention on Human Rights (ECHR or ‘the Convention’) has already been addressed by the Court in its much-criticized (see here, here and here) judgment on the merits issued in Georgia v. Russia (II). Nonetheless, the case at stake significantly differs from its ‘predecessor’, as it does not address the human rights implications of the hostilities that occurred during the Russo-Georgian armed conflict of 2008 but, rather, considers the human rights consequences of its aftermath.

The applicant Government alleged the existence of two administrative practices which violated several provisions of the Convention (Articles 2, 3, 5 and 8 ECHR; Articles 1 and 2 Protocol 1; Article 2 Protocol 4). Setting any future consideration of the merits to one side, with this decision the Court has further unravelled various admissibility questions, relating not only to the present case brought by Georgia but to inter-State applications more generally. In view of this, the following analysis will try to shed further light on questions such as the (extra)territorial jurisdiction of States under the Convention, the rule of prior exhaustion of domestic remedies and its application to inter-State cases, and the standard of proof of an administrative practice, among others.

Factual Background

On 22nd August 2018, the Government of Georgia filed an inter-State application pursuant to Article 33 ECHR, alleging a deterioration of the human rights situation along the ‘administrative boundary lines’ (ABLs) between Georgian-controlled territory and the breakaway regions of Abkhazia and South Ossetia. Both of these regions, while being formally part of the territory of Georgia, had been invaded by the Russian Federation’s armed forces during the 2008 war. After that, with the support of the Russian-backed separatists, Russia had recognized Abkhazia and South Ossetia as independent States, establishing several military bases therein and exercising effective control over the territories.

Georgia contended that Russia had engaged in a first administrative practice of harassing, unlawfully arresting and detaining, assaulting, torturing, murdering and intimidating ethnic Georgian civilians attempting to cross, or living next, to the ABLs. Moreover, Russia had engaged in another separate but closely related administrative practice by failing to conduct Convention-compliant investigations into the alleged violations.

Georgia also alleged that Archil Tatunashvili, a Georgian who was abducted while trying to enter South Ossetia, was unlawfully deprived of his liberty, tortured and murdered by persons for whom Russia bears responsibility and that Russia has failed to conduct proper investigations into his unlawful arrest and murders of Davit Basharuli and Giga Otkhozoria, two other ethnic Georgians civilians who were arrested and killed by the de facto authorities in separate circumstances.

Summary of the Decision

The ECtHR has unanimously declared the present application admissible. First, it established that it had jurisdiction to deal with the case, as the facts giving rise to the alleged violations of the Convention took place before Russia ceased to be a party to the ECHR. As for the existence of the respondent State’s (extra)territorial jurisdiction under Article 1 ECHR, the Court had held that the strong Russian presence and the survival dependency of the separatist authorities on the Russian Federation were unmistakable indications of the existence of Russia’s ‘effective control’ over the victims of the alleged violations.

As concerns the admissibility of the application, the ECtHR noted that the prior exhaustion domestic remedies rule does not apply insofar as the administrative practices alleged by the applicant State are corroborated by sufficient prima facie evidence. At this stage of the proceedings, the evidence submitted by Georgia was sufficient to satisfy the Court that the ‘repetition of acts’ and the ‘official tolerance’ requirements necessary to illustrate the existence of an administrative practice (see France, Norway, Denmark, Sweden and the Netherlands v. Turkey, Commission Decision, paras. 19-22) were present.

Analysis of the Decision

Albeit less thorough than some of the ‘mega-admissibility’ decisions issued by the ECtHR in recent inter-State cases (see for example Ukraine v. Russia (Re Crimea), Ukraine and The Netherlands v. Russia), the present ruling reasserts and further clarifies the Court’s reasoning on fundamental points of law. The following analysis will focus on several admissibility questions addressed by the Court in the present case in light of its recent case law.

Preliminary Issues

a) The Court’s ‘New Normal’ in Dealing with Russian Cases

Since the Russian Federation ceased to be a Party to the Convention from 16th September 2022, the Court applied what has become its routine approach in cases against Russia and first determined whether it had jurisdiction to examine the complaints raised by Georgia, concerning facts which allegedly occurred prior to Russia’s withdrawal from the Convention system. The ECtHR observed that Georgia’s complaints related to alleged violations arising from the ‘borderization’ process which started in 2009 and continued until 2013 at least. As the alleged administrative practices occurred before Russia’s ‘departure’ from the Council of Europe and its denunciation of the ECHR, the Court declared that it had jurisdiction ratione temporis to deal with the case (paras. 22-23).

b) ‘The Smoke Comes from a Fire’: Individual Applications as Evidence of the Existence of an Administrative Practice Alleged in an Inter-State Case

Georgia then asked the Court to consider the above-mentioned individual cases concerning the abduction and murder of three people not only as ‘case studies’ of the administrative practices, but also as individual violations of the Convention. The ECtHR observed that these incidents had already been the subject of three pending individual applications, one of which had already been communicated to the respondent State (Matkava and Others v. Russia, no. 3963/18; Tatunashvili v. Russia, no. 41776/18; N.G. and N.B. v, Russia, no. 44677/21). To avoid examining them twice, the Court found it appropriate to follow an approach it had already developed in Georgia v. Russia (I) and consider these cases only as evidence of a possible practice (para. 21), without ruling on the merits of the claims.

c) Judicial Complaints v. Political Complaints before the ECtHR: Two Sides of the Same (Inter-State) Coin

Russia raised a preliminary objection, alleging that Georgia’s application did not concern issues relating to the protection of human rights under the ECHR. They suggested that the case was lodged to obtain a decision on general questions of international law instead, on issues such as territorial sovereignty and the legitimacy of armed conflicts (para. 24). Recalling its case law on the admissibility requirements for inter-State cases, the Court first noted that there is no ‘good faith’ requirement in relation to their admissibility. This is because the ‘abuse of right’ provision under Article 35(3)(a) ECHR applies only to individual applications. As for the admissibility of inter-State complaints, the only general criterion provided for in the Court’s case law is that they have to be based on a ‘genuine application’ (para. 26).

In the present case, the ECtHR found that this criterion was fulfilled. Indeed, it had been asked to rule on the human rights consequences of the ‘borderisation’ process on the ethnic Georgian civilians’ rights and freedoms. To do so, it would need to verify whether the individuals concerned were under the ‘effective control’ of Russian authorities so as to determine the existence of the respondent State’s extraterritorial jurisdiction vis-à-vis Article 1 ECHR (para. 27). Moreover, while acknowledging the (unavoidable) political implications of the submitted claims, the Court observed that it cannot, for this reason alone, refuse to exercise its adjudicatory functions, also in the light of the actual legal questions raised by Georgia (para. 28). Accordingly, the Court dismissed any objections raised by the respondent Government.

(Extra)Territorial Jurisdiction v. Rules of Attribution and State Responsibility

The Court had to verify whether the alleged violations fell within the jurisdiction of the respondent State. Article 1 ECHR provides that the engagement undertaken by a High Contracting State to secure rights and freedoms enshrined in the Convention is confined to persons within its own territory. Therefore, as a general rule and as also highlighted by the Russian Federation in the present proceeding, the State’s jurisdiction under the ECHR should be primarily conceived as limited to the national territory of a State party. However, the Court has progressively recognized exceptions capable of giving rise to the exercise of jurisdiction outside States’ sovereign borders. In these situations, a State’s extraterritorial jurisdiction can be established: a) on the basis of the power or ‘effective’ control it exercises over the person of the applicant (personal model); or b) on the basis of the effective control exercised over a foreign territory (spatial model) (Al-Skeini and Others v. The United Kingdom [GC], paras. 133-139).

As for the existence of the respondent State’s extraterritorial jurisdiction over Abkhazia and South Ossetia, the Court, recalling its dictum in the Jaloud case, noted that the test for establishing jurisdiction pursuant to Article 1 ECHR has never been equated to the test for assessing State responsibility for internationally wrongful acts. Moreover, as regards the present situation, the Court had already held in its merits judgment in Georgia v. Russia (II) that the strong Russian military presence and the Abkhazian and South Ossetian authorities’ dependence on the Russian Federation indicated that there had been ‘effective control’ over the two breakaway regions, at least until 23 May 2018 (para. 44). As a consequence, the victims of the alleged Convention violations fell within the respondent State’s jurisdiction.

Admissibility Issues: The Rule of the Prior Exhaustion of Domestic Remedies as (Not) Applied to Inter-State Cases Concerning Administrative Practices

Moving on to the analysis of the requirement of prior exhaustion of domestic (or local) remedies in accordance with Article 35(1) ECHR, the Court considered it appropriate not to depart from its established case law as regards its applicability, albeit with significant exceptions, to inter-State applications.

Indeed, in accordance with a basic typology first suggested in 2014, two distinct categories of inter-State complaints can be envisaged, even though they can converge or overlap, resulting in ‘mixed’ claims. The first category concerns those complaints where the applicant State pursues an interest of its own, acting on behalf of the direct victims of a human rights violation. These types of cases are referred to as a ‘surrogate’ of diplomatic protection (see, e.g., Austria v. Italy and Liechtenstein v. The Czech Republic). A second, less common, category covers claims implying une action désintéressée, lodged by one or more States seeking to uphold human rights within the framework of collective responsibility under the Convention (see, e.g., Greece v. The United Kingdom (I) and Denmark, Norway, Sweden and The Netherlands v. Greece). According to the then-in-force-European Commission on Human Rights and the ECtHR, the rule of the prior exhaustion of domestic remedies applies to inter-State complaints only if they fall into the first category. As regards inter-State cases classified among the second category, the requirement of the prior exhaustion of domestic remedies does not apply, since in these proceedings the applicant State denounces a systemic pattern of violations, referred to as ‘administrative practices’, with the main aim of preventing their continuation or recurrence and without asking the Court to give a ruling on each of the individual cases alleged as evidence of those practices (see Ireland v. United Kingdom, Judgment of the Merits, para. 159; Cyprus v. Turkey (IV), Report of the Commission, paras. 83-86; Denmark v. Turkey, Admissibility Decision, p. 34).

An administrative practice is characterized by two constitutive elements. The first objective element is described as a ‘repetition of acts’, i.e. an accumulation of identical breaches which are sufficiently numerous and inter-connected, not to amount to merely isolated incidents of exceptions, but to a pattern or system of violations. The second subjective element is represented by the ‘official tolerance’, meaning that the illegal acts are tolerated insofar as the higher authority of those immediately responsible, albeit cognisant of such acts, takes no action to punish them or to prevent their repetition, or refuses any adequate investigations of their truth or falsity, or that in judicial proceedings a fair hearing of such complaints is denied (see Ireland v. United Kingdom, cited above, para. 159; France, Norway, Denmark, Sweden and The Netherlands v. Turkey, cited above, Decision of the Commission, para. 19; Cyprus v. Turkey (IV), cited above, Judgment on the Merits, para. 99)

In the case at hand, Georgia alleged the existence of two administrative practices with the aim of preventing their continuation or recurrence, without asking the Court to deliver a ruling on individual violations of rights. Rather, these cases have been brought to its attention as proof or illustrations of those practices. Thus, dismissing any objection raised by Russia on this point, the ECtHR found that the exhaustion rule does not apply to the present case (paras. 49-50).

Finally, in order to exclude the application of the rule of the prior exhaustion of local remedies, the Court had to verify if the administrative practices alleged by the applicant State were supported by the necessary evidence. According to the general principles of international adjudication, ‘onus probandi actori incumbit’: it is for the claimant (State) to bear the initial burden of proof. Nonetheless, in demonstrating the existence of an administrative practice, the Court prefers not to give weight to the concept that the burden of proof is borne by one or other of the two Governments concerned. Rather, it will study the material before it, from whatever source it originates. In addition, the conduct of the parties vis-à-vis the general duty to cooperate set out in Article 38(1) ECHR may constitute an important element to be considered. The applicable standard of proof in the admissibility phase of inter-State complaints alleging the existence of an administrative practice, as recently restated in Ukraine and the Netherlands v. Russia, is that of ‘sufficiently prima facie evidence’, which must be applied to both constituent elements of an administrative practice.

In the present case, Georgia had submitted a comprehensive list of the alleged victims provided by the Governmental State Security Service, reporting several human rights incidents. Moreover, the evidentiary materials submitted by the applicant State, as well as that obtained proprio motu by the Court, proved that a ‘repetition of acts’ had occurred since the onset of the borderisation process (para. 69). Moreover, the Court was satisfied that the available evidence established that there was an ‘official tolerance’ for the impugned acts at the level of supervisors of the breakaway regions. Thus, Russian border guards secured the ABLs by means of regulatory measures generally applied to all people concerned in Abkhazia and South Ossetia, resulting from the de facto transformation of the ABLs into State borders (para. 70). Therefore, the ECtHR concluded that the applicant State had provided sufficient prima facie evidence as to the existence of both ‘repetition of acts’ and ‘official tolerance’, and unanimously declared the inter-State application admissible.

Conclusion

The decision issued by the ECtHR in the Georgia v. Russia (IV) case represents an important confirmation of the Court’s developing case law on the admissibility of a particular sub-category of inter-State applications: i.e., those cases that, together with ‘ordinary’ human rights violations, also touch upon, inter alia, questions of public international law such as State’s sovereignty over disputed or separatist territories. It is also interesting to observe that, in the case under consideration, the Court, for the first time in the context of an inter-State application lodged against Russia, decided on the admissibility of the complaint unanimously. This is relevant as the complaints raised by the applicant state share the same factual background of those adjudicated by the ECtHR in Georgia v. Russia (II). Thus, the unanimous decision shows a progressively more consistent approach towards key issues such as the treatment of evidence and the non-applicability of the exhaustion of domestic remedies rule to administrative practices. As for the (extra)territorial jurisdiction of the respondent State pursuant to Article 1 ECHR, it remains to be seen how, in the merits phase of the proceeding, the Court will conceptualize its approach to the relationship between the State’s exercise of spatial jurisdiction and the attribution rules of State responsibility. In any case, the final outcome of Georgia v. Russia (IV) will certainly have important implications not only for the future of inter-State cases before the ECtHR but also for its significant contribution to the development of general issues of international law.

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