By Titouan Berhaut-Streel & Charly Derave

On 8 September 2022, the European Court of Human Rights delivered its judgement in Drelon v. France. The case concerns Mr Drelon’s denied applications to donate blood because he refused to answer whether he had ever had sex with other men and therefore to disclose his alleged sexual orientation. Although the Court declared the claim inadmissible, we offer a prospective analysis of key conceptual elements that could direct the Court’s reasoning if it were to hear another case about (permanent or temporary) contraindication to blood donation imposed to men having sex with men.

Facts 

The applicant, Mr Drelon, was born in 1970 and currently lives in Paris. On 16 November 2004, he went to a collection site of the French blood donation service, the Établissement Français du Sang (“EFS”). During the pre-donation medical interview, Mr Drelon refused to say whether he had ever had sex with other men (“MSM”) and his application to donate blood was therefore rejected (§4). Personal data about him was collected and stored in a computer file specific to the establishment. It was recorded that the applicant was subject to a – then permanent – contraindication to donating blood (“FR08”) because of the presumed sexual intercourses he had had with other men (§5). This contraindication was valid until 2278. 

His next two attempts to donate blood, on 9 August 2006 and on 26 May 2016, were both rejected because he was listed under code FR08 and was excluded from giving blood in spite of a recent biological analysis attesting to his seronegativity – during his 2016 attempt (§§6-7). 

On 6 February 2007, the applicant lodged a criminal complaint denouncing, on the one hand, the discriminatory nature of the refusals from donating blood in 2004 and 2006 and, on the other hand, his referencing in the EFS databases for his alleged homosexual practices. This complaint was dismissed and then confirmed by the Court of Cassation in a ruling of 8 July 2015. The Court decided that the practice was justified in terms of the legitimate aim of protecting public health (§§8-21).

In parallel with these criminal proceedings, on two occasions, the applicant brought an administrative appeal before the Council of State on the grounds of misuse of power against the successive refusals of the Minister of Health to repeal his 12 January 2009 and 5 April 2016 decrees. Since 2009, the contraindications to blood donation have been legally defined. In a decision of 18 July 2016, the Council of State ruled that there was no need to rule on the first appeal, as the decree in question had been repealed during the proceedings. On 28 December 2017, it dismissed the second appeal, ruling that the temporary contraindication (then set at 12 months) was proportionate in light of the scientific data available (§§22-27). 

Applications to the ECtHR

Mr Drelon lodged a first application to the ECtHR on 8 January 2016, following the 2015 judgment of the Court of Cassation. On 8 June 2018, Mr Drelon lodged a second application, following the 2017 Council of State’s ruling.  In its judgment, the Court examines the two applications together and divides its reasoning into two parts (§69). The first relates to the collection and storage by the EFS of data reflecting the applicant’s alleged sexual orientation (1). The second, that treats claims supported only in the 2018 application, deals with the refusal of Mr Drelon’s applications to donate blood (2). 

1) Arguments and reasoning of the Court relating to the collection and storage of sensitive data

In both applications, Mr Drelon firstly argues that the collection and retention of personal data reflecting his alleged sexual orientation by the EFS infringes his right to respect for private life, guaranteed by Article 8 of the Convention, and constitutes discrimination on the grounds of his sexual orientation under Article 14 (§70). 

The Court finds that the case’s facts fall within the scope of Article 8 and constitute an interference with Mr Drelon’s right to respect for private life (§§79 and 86). It thus roots its reasoning in the negative obligation of States (§85). While the Court observes that the interference meets the condition of lawfulness and pursues a legitimate aim of protecting health (§§87-89), it nevertheless concludes that the national authorities have exceeded their margin of appreciation. Following a reinforced proportionality test justified by the sensitive nature of the processed data (relating to the applicant’s presumed sexual orientation – §95), the Court rules that the practice is disproportionate to the objective pursued. More specifically, it highlights the lack of accuracy of the personal data collected – the applicant having merely refused to answer a question – and the (over)excessive length of data storage (§§90-100). 

In the light of these developments, the Court does not consider it necessary to examine these complaints under Article 14 of the Convention (§102). 

2) Arguments and reasoning of the Court concerning the refusal of Mr Drelon’s applications to donate blood

In his 2018 application, the applicant argues that the refusal of his applications to donate blood amounts to a violation of Article 8, read alone or in conjunction with Article 14. He challenges the foreseeability and proportionality of the contraindication in that it has been targeting the male homosexual population indiscriminately, whereas it should instead have aimed at the individual sexual practices of blood donation candidates. The applicant also criticises the discriminatory nature of this contraindication based on his presumed sexual orientation (§§103-104).

These complaints are rejected by the Court as untimely in respect of the 2006 and 2009 refusals (§108) and manifestly ill-founded in respect of the 2016 refusal in that the complaint is essentially based on a ministerial decree which was not yet into force at the time of the refusal (§§109-113).

Analysis

Drelon v. France allowed the Court to clarify its position on the processing of personal data relating to one’s sexual orientation and life. However, because the Court rejected the complaints, it is at the same time a missed opportunity for the Court to rule on the discriminatory nature of contraindications to blood donation specifically targeting MSM.

Yet, this decision was long awaited, especially in light of recent debates on the issue of MSM’s access to blood donation in the Contracting Parties. Germany, France, Greece, Austria, the Netherlands and the United Kingdom have recently abolished the temporary deferral criterion for MSM, while other States, such as Belgium, Switzerland, Denmark and Luxembourg, maintain deferral periods. Croatia, Moldova and Turkey still deny access to blood donation for MSM. 

Considering this, one may wonder what position the Court could have taken if it had examined the case on the merits under Articles 14 and 8. In what follows, we offer a prospective analysis to highlight what elements of its case law the Court could rely on if it were confronted with a similar case in the future.. Our analysis is thus based on the traditional conceptual approach followed by the Court when assessing whether there is a discrimination within the meaning of the Convention (see Rasmussen v. Denmark, §§ 29-42 ; Beeler v. Switzerland, §§98-116).  

1) Could the complaint fall within the ambit of Article 8? 

Article 14 does not exist independently but complements other articles of the Convention. It requires that the alleged situation falls within the scope of at least one other ECHR normative clauses – in our case Article 8 on the right to respect for private life. The scope of this provision is interpreted very broadly by the Court (A. v. Norway, §§ 63 and 64, 9 April 2009; E.B. v. France, §43, 22 January 2008; Fretté v. France, §§27 to 33, 26 February 2002). Blood donation is not in itself a right protected under the Convention – as the French Government rightly argued. However, one could argue that there is a right, guaranteed by national law, to participate in a procedure (pre-donation interviews and questionnaires) aimed at admitting a candidate to donate blood by analogy with the Court’s reasoning in its E.B. and Fretté v. France rulings. Also, participation in this procedure constitutes an act of solidarity, making sense of an individual’s membership of the social body. In this respect, blood donation impacts various components of an individual’s private life as depicted by the Court in its case law, such as the right to self-determination, autonomy and personal development, the right to control one’s own body, and the right to shape and develop relationships with fellow human beings. Furthermore, the contraindication, which is based on the the sex life of blood donation candidates, falls within the realm of the personal sphere protected under Article 8 (Beizaras and Levickas v. Lithuania, 14 January 2020, §109). Therefore, there seems to be little or no difficulty in bringing the situation under this provision. 

2) Could there be a difference in treatment? 

Firstly, there is a difference in treatment insofar as MSM (to which supposedly Mr. Drelon belongs) are denied their application(s) to donate blood solely on the basis of their alleged sexual practices and orientation. By expressly targeting MSM, the contested contraindication introduces a difference in treatment based on the intersection of two grounds of discrimination, sex (since the measure targets men) and sexual orientation (since the measure targets homosexual practices). Secondly, despite higher HIV incidence and prevalence rates among the MSM population, it can be said that MSM candidates with a potentially stable, sexually protected relationship or a proof of seronegativity are in a similar situation to other candidates and yet the selection criterion is likely to exclude them from donating blood (§7). 

3) Could the difference in treatment be objectively and reasonably justified? 

A difference in treatment is not discriminatory if it meets the proportionality test (see Belgian linguistic case, §10 under “the law” section). This test aims to determine whether the difference in question pursues a legitimate aim by appropriate and strictly necessary means, while respecting the margin of appreciation left to States when they apply the Convention. The extent of this margin varies according to different parameters. In our case, three elements are likely to affect this margin of appreciation, or even restrict it, bearing in mind that the Court’s case law tends to defer to States when dealing with ethical and moral issues (A.P., Garçon et Nicot c. France, §121 ; Hämäläinen c. Finlande, §67). Firstly, sexual orientation and sex as protected grounds for differential treatment. Secondly, the Court’s case law on particularly vulnerable groups . Thirdly, the emergence, if not of a consensus, of a European and international trend . 

To the first point, contrary to the argument of the French Government, which assumes that the contraindication “is not based on sexual orientation, but on sexual behaviour” (§91), the Court meaningfully decides in its ruling not to dissociate the applicant’s “sexual practices and orientation” when assessing the justification for the collection of Mr Drelon’s personal data by the FBE (§94). In doing so, it agrees with the position of the Court of Justice of the European Union in its Léger judgment, which dismisses a similar argument by the French government (see Geoffrey Léger v French Public Health Minister, pt. 49). Sexual orientation is a “suspect” ground of discrimination. It involves a narrow margin of appreciation for the respondent State (see also L. and V. v. Austria, §45; Smith and Grady v. United Kingdom, §90). Indeed, the Court has held that the justification of a difference in treatment on this ground requires “particularly convincing and weighty reasons” (Beizaras and Levickas v. Lithuania, §114; Bayev and others v. Russia, §89). The same reasoning applies to the ground of sex (Abdulaziz, Cabales and Balkandali v. United Kingdom, §78; Konstantin Markin v. Russia, §127).

To the second point, in its Kiyutin v. Russia judgment, dealing with the refusal of a foreigner’s application for a residence permit on the basis of, inter alia, his HIV status, the Court recognises that where a “restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question” (§63). Like the applicant living with HIV in the Kiyutin case, the MSM blood donation candidates targeted by the contraindication have experienced “considerable discrimination in the past”. Since its discovery and until 1983, HIV has been referred to by the acronym GRID (Gay-related immune deficiency), or even as the “gay cancer”. HIV’s public representation is marked by the conflation of seropositivity and male homosexuality, which was for a time assumed as the main criterion for the diagnosis of immunodeficiency. Furthermore, the Court also notices in its judgment M.C. and A.C. v. Romania that “the LGBTI community in the respondent State is in a precarious situation, as it is subject to negative attitudes towards its members” (§§114 and 118). This finding has led to the conclusion that the protection afforded to particularly vulnerable groups could be extended to the whole LGBTI community.

Finally, the margin of appreciation of the national authorities also depends on whether there is a consensus at the level of the Member States considering the issue at stake (see Y. v. France, §73). While in the context of Drelon v. France, there was not a clear tendency in favour of abolishing the specific counterindication (this parameter being assessed retroactively at the time of the refusals of applications), this context is different today. Indeed, almost two thirds of the Contracting Parties allow MSM to donate blood without distinction related to their sex and sexual orientation. While this does not lead to the conclusion that there is an unequivocal consensus on this matter, it shows a trend in this direction, which can also be observed on the international scene (Argentina, South Africa, Brazil, Canada, United States).

Conclusion

In this (way too short) comment, we have tried to go beyond the Court’s decision to declare inadmissible the applicant’s claim because of the refusals to donate blood. We have suggested a prospective analysis of key conceptual elements that could guide the Court’s reasoning in a future analogue case. Amongst them, three could impact and consequently narrow the States’ political discretion when deciding on such ethical and moral issue. At the very minimum, they invite the Court to ground its ruling in MSM’s human dignity by recognising that the exclusion from blood donation locks these applicants in a category of undesirables and leaves them at the margins of a not so much pluralistic society. One could only hope the Court will go down this path.

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Christopher Roberts

Machalikashvili and Others v. Georgia concerned the killing of T.M. by members of the Counter-Terrorism Department of the State Security Service (‘SSS’) of Georgia on 26 December 2017. The precise circumstances in which this killing took place, as well as the integrity and comprehensiveness of the investigation subsequently conducted into the killing, were disputed. At central issue in the case were the issue of the distinction between the procedural and substantive obligations that flow from Article 2 of the European Convention on Human Rights, and the appropriate allocation of the burden of proof in cases involving killings conducted by government forces. While allocation of the burden of proof may sound like a relatively obscure technical procedural issue, in many cases, including this one, it is perhaps the most important part of human rights complaint adjudication.

Facts

Around 3:45 a.m. on 26 December 2017 members of an SSS Special Assignment Unit consisting of 32 officers entered the home of T.M. and his family. Shortly thereafter T.M. was shot in the head in his bedroom. According to the authorities, this was due to his refusal to show his hands and surrender, and his subsequent attempt to detonate a hand grenade. Following the shooting T.M. was transferred to a hospital, though there was no ambulance accompanying the SSS unit during the operation.

A criminal investigation was opened and an investigation commenced in light of the shooting. An investigator from the Kakheti Regional Prosecutor’s Office arrived and surveyed the scene at 4:00 p.m. the same day. A hand grenade had already been taken from the scene, and was subsequently destroyed during a forensic examination. Another forensics examination suggested ‘that T.M. had been in a lying down position with his head slightly elevated’ when he was shot (para 37).

Members of T.M.’s family, applicants in the case at the European Court of Human Rights (‘the Court’), requested victim status during the subsequent investigations, but their request was refused. They also lodged multiple complaints concerning the scope and nature of the investigations undertaken. Among other things, the applicants ‘criticised the fact that the initial investigative measures had been undertaken by the SSS in breach of the institutional independence requirement, thus prejudicing the whole investigation’; ‘alleged that the scope of the investigation was narrow, overlooking, despite their numerous requests, the planning stage of the special operation’; and ‘alleged that in view of the time of the applicant’s last mobile telephone communication, it was likely that he had been using his mobile telephone and the headphones at the time of the special operation, and, hence had not heard the SSS officers entering his bedroom’ (para 51). More broadly, the applicants ‘complained to the prosecution authority that the investigation was not being conducted thoroughly and impartially’ (para 53). The national criminal investigation was discontinued on 25 January 2020.

Summary of the Judgment

The Majority Opinion

The majority found that the investigation in question had violated the procedural requirements of Article 2, due to ‘the defective initial investigative response, including the way in which important evidence was gathered and handled’; ‘the superficial examination of the planning and control phase of the operation’; ‘the delay in interviewing the SSS officers’; and ‘the denial of victim status to the first applicant, which prevented the applicants from appealing against the decision of the prosecutor’s office’ (para 97).

However, the majority found no violation of the substantive requirements of Article 2. The Court noted ‘that the Government failed to submit any documents or files providing for the procedures that the SAU employed before, during, and after the operation in question’; that ‘[f]ormal reports concerning the manner in which the operation was prepared and/or in which it unfolded [we]re also missing from the investigation file’; and that ‘the Government provided no explanation’ for those absences (para 102). Despite these statements, the Court observed that ‘there is nothing to suggest that the SAU officers were not intending to carry out an arrest, as per the stated purpose of the operation’; accepted ‘the Government’s argument that the SSS were expecting armed resistance from T.M.’; indicated that the authorities had ‘provide[d] a plausible explanation for the events’ in question; and concluded that there was ‘insufficient evidence on which to conclude, beyond reasonable doubt, that T.M. died in circumstances engaging the responsibility of the State’ (paras 102, 105-6).

In justification of this holding, the Court stated that it ‘must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case,’ and that ‘errors of judgment or mistaken assessments, unfortunate in retrospect, will not per se entail responsibility under Article 2 of the Convention’ (para 105). Perhaps most essentially, the Court held that it had ‘no sound basis to find that T.M. was under the control of the SAU officers at the moment when they entered the room’ and that ‘the situation in the present case cannot be equated to a death in custody or to other situations where the authorities were in control, with the result that the burden of proof may be regarded as resting on the State’ (paras 105, 104). The majority also found a complaint under Article 3 inadmissible; held that there was no need to examine the complaint under Article 13; and awarded the applicants 10,000 EUR in just satisfaction and 15,000 EUR for costs and expenses.

The Partly Dissenting Opinion

Judge Gnatovskyy partially dissented in the case. While he agreed with the majority’s finding of a violation of the procedural dimension of Article 2, he would have found a violation of that article’s substantive requirements as well. His dissent directly confronted the majority’s reasoning as to the burden of proof. In the first place, in contrast to the majority, Judge Gnatovskyy noted the key question was whether the events at issue lay within the exclusive knowledge of the authorities, which, as he noted, they did (see dissent, paras 8-9). As he observed,

‘[t]here exists clear authority … for the proposition that strong presumptions of fact arise in respect of injuries and death that occur in situations where the events lie wholly or in large part within the exclusive knowledge of the authorities. In such cases, the burden of proof shifts and it is for the respondent Government to explain, in a satisfactory and convincing manner, the sequence of events and to provide solid evidence to refute the applicant’s allegations … In the absence of such explanation, the Court can draw inferences which may be adverse to the Government. In my view, the Court should have adhered to the same approach in the present case as none of the arguments presented by the Government amounted to a satisfactory and convincing explanation’ (dissent, para 10).

Judge Gnatovskyy also noted that his dispute with the majority was not merely academic—rather, as he put it, the approach of the majority ‘risks dangerously lowering the standard of protection of the right to life’ (dissent, para 10). In contrast to the approach adopted by the majority, Judge Gnatovskyy called on ‘the Court to be more demanding in situations where no effective investigation has been carried out and where the Government has failed to explain the sequence of events in a satisfactory and convincing manner and provide solid evidence to refute the applicant’s allegations’ (para 15).

Analysis

Identifying the core of the problem with the judgment in Machalikashvili is straightforward due to the fact the powerful, compelling dissent by Judge Gnatovskyy goes clearly and directly to the heart of the matter. As the language of the majority makes clear, everyone is uncertain exactly what happened—an unsurprising position for an international court to be in. In such circumstances, the approach adopted towards the burden and standard of proof is essential. In contrast to the majority, Judge Gnatovskyy gets this issue right: the burden of proof must be on the state in cases in which only they can access the information needed to clarify what transpired.

Some points above and beyond Judge Gnatovskyy’s reflections on the burden of proof will be helpful, in terms of more fully explicating the issues involved. In the first place, the majority at one point suggested it reached its finding because the case against the state had not been proven ‘beyond reasonable doubt’ (para 106). This statement of the majority’s is well-grounded in the language previously used by the European Court. It appears to disregard, and perhaps be ignorant of, the fact that multiple human rights bodies have noted the standard of ‘beyond a reasonable doubt’ is inappropriate in the human rights context (see, e.g., the Inter-American Court of Human Rights’ decision in Velásquez Rodríguez v. Honduras, para 134), however, and the fact that the European Court has indicated that while it utilizes the formula of ‘beyond a reasonable doubt,’ ‘it has never been [the Court’s] purpose to borrow the approach of the national legal systems that use that standard’ (El-Masri v. the former Yugoslav Republic of Macedonia, para 151). To the extent the majority is imposing on the claimants the burden of proof beyond a reasonable doubt, therefore, they are both adopting a standard directly opposed to precedent as well as a close to impossible standard for applicants to meet.

While other statements by the majority employ alternative language—questionable in itself, as the varying language employed suggests a lack of clarity relative to the essential issue of the standard of proof—all the language deployed suggests an overly demanding standard is required. At different points the majority suggests the state has provided a ‘plausible account,’ and elsewhere that the Court has ‘no sound basis’ to reach various holdings advanced by the applicants (paras 104-6). If taken seriously the language employed by the Court around ‘plausibility’ suggests that, in order to succeed, applicants would have to advance sufficient evidence to render the state’s case completely ‘implausible’—a standard hard to distinguish from that of proof beyond a reasonable doubt. Requiring ‘sound basis’ suggests a slightly diminished standard of proof, but still a high standard, similar perhaps to the intermediate standard of ‘clear and convincing evidence.’ This standard too would be challenging to meet in reality.

As both the majority and the dissent recognize, the outcome of the case in terms of the substantive requirements of Article 2 hinged most centrally on the approach adopted by the Court to the burden of proof. Should it lie on the applicants, no violation would presumably be found (though even here, it is ambiguous what would have happened had the claimants been required only to show their contentions were more likely than not); should it lie on the state, the Court would find a violation. The majority contended that the situation in question was not one in which the authorities were in control, and that therefore the burden should not be reversed.

Leaving aside whether or not the majority was correct on the question of control, that is, as Judge Gnatovskyy notes, the wrong issue to focus on. Rather, the key question the Court should ask in such situations is who has access to the relevant information. If the information is in the hands of applicants, it is appropriate to place the burden on applicants. If only the state can provide the relevant information, or the state is in a better position to provide that information, the burden must lie on the state. Any other approach would render it possible for a state to avoid liability by refusing to disclose information to the adjudicatory body in question, or perhaps by even failing to collect, or retain, the information in question in the first place.

Machalikashvili is a difficult judgment to read because the majority all but explicitly recognizes this at various points. The majority finds the state conducted an inadequate investigation; that the state failed to provide certain key pieces of information required; and, based on the language the Court utilizes, that the state failed to present a convincing account of what occurred. For all of this to be followed by a finding that the substantive aspect of Article 2 was not violated creates a roadmap states can follow in order to avoid accountability for extrajudicial killings and other serious violations: conduct an inadequate investigation, decline to share essential information with human rights review bodies, and liability will be escaped. To reiterate Judge Gnatovskyy’s powerful words in his dissent, the judgment ‘risks dangerously lowering the standard of protection of the right to life.’ To put it another way: by shaping its approach to the burden of proof the way it does, the Court supports impunity for human rights violations.

Conclusion

Exactly what took place when SSS members stormed into the bedroom of T.M. may never be known with certainty. Insofar as the Court confronted factual uncertainty in Machalikashvili, the case was not unique but rather well within the norm for adjudicatory bodies, which often confront cases in which the facts are uncertain. Questions pertaining to the burden and standard of proof are hence critical to the work of all adjudicatory bodies, even more so to international ones, given their greater distance from the factual situations in question. In Machalikashvili, the Court combines an unclear approach to the standard of proof with an approach to the burden of proof that would undermine human rights protection. It can only be hoped the jurisprudential and normative clarity offered by the dissent, with its clear recognition of the need to reverse the burden of proof in cases in which the state has superior access to the information in question, is followed in future cases.

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In February, we presented our readers with the 2022 Strasbourg Observers Best & Worst Poll, in which we asked you to vote for your preferred candidates as shortlisted for the categories of Best Judgment of 2022, Worst Judgment of 2022, and Best Separate Opinion of 2022. We would like to thank everyone who participated in this vote, and are happy to announce the results!

Best Judgment of 2022

In the category of best judgment, with a total number of 162 votes, the winner is… Safi and others v. Greece!

1^st place: Safi and others v. Greece – 28.4%

2^nd place: Elmazova and Others v. North Macedonia – 19.14%

3^rd place: G.M. and Others v. Moldova – 18.52%

Safi and Others v Greece concerns the sinking of a fishing vessel carrying 27 migrants who tried to enter Greece from Turkey. According to the applicants, the incident happened after the Greek coastguard vessel approached at a very high speed in order to push the fishing boat back to Turkish waters. The sinking led to the death of 11 passengers. In a unanimous judgment, the Court found multiple violations of the Convention. It found a violation of the procedural and substantive limbs of the right to life under art. 2 ECHR, since Greece has failed to properly investigate the incident and to undertake all measures that could reasonably be expected from state authorities to prevent the loss of life. Furthermore, the Court found a violation of art. 3 ECHR on the prohibition of inhuman and degrading treatment, as the survivors were subjected to body searches after the incident. According to the Court, such searches were not based on compelling security needs.

The result of this vote demonstrates the appreciation of our readership to the Court when it takes a stand against illegal pushbacks of migrants, which have caused the loss of lives in the treacherous Mediterranean waters and represent what Niamh Keady-Tabbal and Itamar Mann call “an erosion of refugee law, and a parallel license to inflict ever more extreme violence upon people on the move who are not bone fide refugees.” Nevertheless, the differences in votes between the five nominees are not stark. This indicates that as far as our readers are concerned, many of the Court’s judgments deserve appreciation.

Worst Judgment of 2022

In the category of worst judgment, with a total number of 165 votes, the winner (or, more aptly, loser) is… Y and Others v. Bulgaria!

1^st place: Y and Others v. Bulgaria – 40.00%

2^nd place: Muhammad v. Spain – 24.85%

3^rd place: Savickis and Others v. Latvia – 12.73%

Y and Others v. Bulgaria is a tragic case of domestic violence. V was a victim of abuse by her husband and had submitted various complaints to the Bulgarian authorities during the course of nine months. On 18 August 2017, she was shot and killed by her husband. The ECtHR eventually found no violation of the accessory right to non-discrimination under Article 14 ECHR. According to the Court, the applicants had failed to provide statistical evidence demonstrating general complacency of Bulgarian authorities towards domestic violence. This is despite the Court already finding that the failure of Bulgaria in keeping statistical evidence was a serious omission.

The result reveals that our readership is concerned about the Court’s approach to the burden of proof in domestic violence cases, which puts victims at a disadvantage as the state is in a (much) better position to collect and maintain statistical evidence. The second judgment in this category is Muhammad v Spain, which reveals a similar concern about the allocation of the burden of proof in (alleged) racial profiling cases. 

Best Separate Opinion of 2022

In the category of best separate opinion, with a total number of 165 votes, the winner is… Judge Krenc in Muhammad v. Spain!

1^st place: Judge Krenc in Muhammad v. Spain – 35.15%

2^nd place: Judge Šimáčková in Bouton v. France – 23.03%

3^rd place: Judges O’Leary, Grozev and Lemmens in Savickis v. Latvia – 18.18%

It is perhaps not a coincidence that the winner of the ‘best separate opinion of 2022’ is Judge Krenc in Muhammad v. Spain, given that the majority judgment came second in the category of worst judgment. This case of alleged racial profiling involved a person of Pakistani nationality who was subjected to impromptu identity check in a crowded area of Barcelona, where pickpocketing is common. As mentioned above, the allocation of the burden of proof was a central aspect of the case.

In his dissenting opinion, Judge Krenc noted that “[t]he present judgment rightly emphasises the importance of combating racial discrimination, which ‘is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction’”. While he acknowledged that identity checks for security reasons pursue a legitimate aim under the Convention, Judge Krenc emphasised that people cannot be targeted solely based on their ethnicity. In the case at hand, he was unable to share the view of the majority, arguing that the Spanish authorities had failed to fulfil their obligation to carry out an effective investigation. Moreover, he emphasised that the majority should have addressed the positive obligation of the state to set up an adequate legal framework providing effective safeguards against racial profiling. Judge Krenc also tackled the issue of evidence by emphasizing that applicants are facing difficulties in proving discriminatory intent on the part of the authorities. 

The overlap between this result and the two ‘worst judgments of 2022’ confirms the reservations (some of) our readers have about the Court’s approach to the allocation of the burden of proof in discrimination cases, in which the victims are often in a vulnerable situation.

The post Results of the 2022 Strasbourg Observers Best & Worst Poll appeared first on Strasbourg Observers.

By Kelly Matheson, Anders Carlson and Paul Rink

All eyes will be on Strasbourg this spring when the Grand Chamber hears the first two in a trio of cases legally defining the relationship between human rights and climate change: KlimaSeniorinnen v. Switzerland, Carême v. France, and Duarte Agostinho v. Portugal and 31 Others. Courts around the world have already recognized that climate change “put[s] at risk the survival of man on Earth”, is coming dangerously close to “approaching ‘the point of no return’”, and that the “real threat of dangerous climate change” has a “direct negative effect on the daily lives of current and future generations”. As a Court mandated to confront human rights violations head on, the importance of the Grand Chamber’s judgments in these historic cases addressing the single greatest threat to human rights cannot be overstated: the impacts of judicial decisions always extend far beyond the parties but, rarely do they have the potential to influence the course of humanity for millennia to come. The judgments in these cases—for better or worse—most certainly could.

These are not the only climate change cases currently before the Court, but their prominence as the first to be heard in Strasbourg means that the Grand Chamber’s findings will be of great interest around the world and heavily analyzed by legal professionals, academics, media, and most importantly, other courts. And the stakes are high. Although the Court will be deciding each case on its individual merits, the judgments, as a whole, are likely to be viewed as an indicator of the Court’s broader approach to addressing the largest and most pervasive threat societies and the world have ever experienced at a crucial point in the trajectory of climate litigation.

Considering the weight the Court’s words will carry, this article focuses on an established truth: human rights—in the context of already dangerous climate change—can only be fully protected if States are required to act in accordance with the best available science.[1] It is vital that the Court’s decision-making in these cases is informed by the most up-to-date and complete scientific record. This importance of placing the best available scientific evidence at the heart of these cases begins with the threshold question of what target must be achieved in order to protect human life and health within the meaning of Articles 2 and 8 of the European Convention on Human Rights (“the Convention”) and extends all the way through to the nature and extent of appropriate remedies in these first climate cases to reach the Court.

A Distinction that Matters: Risk Reduction v. Violation Prevention

The politically negotiated targets set forth in Article 2(1)(a) of the Paris Agreement are that of “[h]olding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels” (“Paris temperature targets”). While the Paris Agreement is an important framework treaty signed by the States involved in the trio of cases at hand, it is not a human rights treaty and its temperature targets are framed in terms of reduction of risk rather than in terms of adherence to human rights standards. While it is uncontroversial that achievement of the Paris temperature targets would, as Article 2 states, “significantly reduce the risks and impacts of climate change” this assertion is true only by reference to the even greater devastation that temperatures of 3.0°C or 4.0°C would wreak upon humanity and the planet. By contrast, the requirements of applicable human rights standards cannot be met simply by risk reduction. Instead, the protection of human rights requires violation prevention.

This distinction matters because a focus on meeting the Paris temperature targets alone would not only be at odds with established human rights protections set forth in the Convention but, would also risk creating the erroneous impression that there is still time to spare for States to address their obligations. Such an approach would literally be fatal.

As will be discussed next, scientific evidence shows that the Paris temperature targets are insufficient to protect human life and health in a manner that is consistent with the Court’s own jurisprudence obliging states to take all steps within its powers to protect human life. ­­In fact, according to the best available scientific evidence, a 1.5°C warmer world condemns millions across Europe—and billions worldwide—to endure a litany of human rights violations, particularly harming children. Sanctioning 2.0°C of warming is even more reckless from a human rights perspective.

Endangering Human Rights: The Paris Temperature Target of 1.5°C

Scientists, including those who are part of the Intergovernmental Panel on Climate Change (IPCC), are clear that planetary heating of 1.5°C will have disastrous consequences for humanity. The 2018 IPCC Special Report on 1.5°C expressly stated with high confidence that allowing a temperature rise of 1.5°C “is not considered ‘safe’ for most nations, communities, ecosystems and sectors and poses significant risks to natural and human systems as compared to the current warming of 1°C.” The 600-plus page report summarizes a significant body of science projecting that warming of 1.5°C and above would be catastrophic. And, in the subsequent four years since the report’s publication, an ever-growing body of robust scientific research has continued to methodically demonstrate that the risks are even more serious than the IPCC initially concluded. The risks of 1.5°C are many. Looking solely at Europe, heatwaves will be more frequent and severe, causing more of those living in Council of Europe States to suffer heat-related illnesses and deaths. The fire season will be longer, resulting in increased threats to human health from smoke exposure and increased risk of property damage and loss. Up to 66.3 million Europeans will be exposed to drought in any given year. Tick-borne diseases as well as West Nile Fever, Dengue, Chikunga, Zika, Malaria, and Vibrio will become more common. European glaciers are poised to lose significant volumes of ice, compounding water scarcity. Agricultural yields will decline across the continent affecting food supplies. And, an estimated 3.5 million Europeans will be exposed to coastal flooding in any given year. Science often informs the law but rarely do courts have access to copious expert evidence establishing that negotiated targets set forth in an international agreement will spawn more frequent and severe disasters that threaten and take lives, jeopardize critical food and water supplies, and harm human health and livelihoods, especially for already at-risk individuals, especially for children and seniors.

Scientists also find that heating of up to 1.5°C or beyond for any length of time could drive our planet across climate tipping points that will fundamentally alter large portions of the globe. Climate tipping points—also known as points of no return—are critical thresholds that, if crossed, would lead to large and sometimes irreversible changes in components of the Earth’s climate system that contribute significantly to the well-being of humanity. These tipping points do not stand alone—if one tipping point is crossed, the likelihood that others may be crossed increases, risking a “tipping cascade” which would likely add more momentum to global warming.

In September 2022, researchers updated a comprehensive assessment of climate tipping points. At global warming of ~1.5°C, four large-scale tipping points in the global climate system are “likely” to be crossed, including the: i) collapse of the Greenland ice sheet; ii) collapse of West Antarctic ice sheet; iii) abrupt thaw of permafrost; and iv) die-off of 70-90% of tropical and subtropical coral reefs. Further, at ~1.6°C of warming, abrupt loss of sea ice over the Barents Sea north of Scandinavia is expected. The most clear-cut impacts on humanity will stem from the many centuries to millennia of ongoing sea-level rise that will occur as these ice sheets collapse resulting in stronger storm surges and increased coastal flooding. As the reefs die, fisheries will collapse depriving fisher people of income and threatening food security. And, as lands thaw, entire communities—particularly Indigenous communities—will be forced to migrate. 1.5°C is not a solution. It only worsens already occurring human rights violations.

An additional limitation of the Paris temperature targets is the absence of any clear framework to limit the amount of time States can allow the Earth to stay at a dangerous temperature. This too should be considered by courts because the magnitude and duration with which we overshoot a safe level of heating matters for human life and health. In an even more recent study on climate tipping points published in January 2023, scientists examined how much the risk of crossing critical tipping thresholds is amplified if we overshoot 1.5°C and 2.0°C. The analysis reveals that even temporary overshoots of low magnitudes can increase tipping risks by up to 72% compared with non-overshoot scenarios. Together, the September 2022 and January 2023 studies found that the only safe level of global warming is 1.0°C or less.[2]

To be clear, the Paris Agreement is undoubtedly a significant and important achievement of international negotiation and cooperation, as well as a milestone framework treaty. However, seven years have passed and the additional scientific evidence indicating the immense dangers of allowing global heating to continue up to—and then linger at—the Paris temperature targets has grown substantially. The inclusion, use, and reliance on inadequate outdated targets cuts against the very underpinnings of the Paris Agreement. In the Preamble, States recognized that the “need for an effective and progressive response to the urgent threat of climate change” must be based on “the best available scientific knowledge”. Yet, States—including Council of Europe Member States—have not updated their commitments in consideration of the updated science. Given the gravity of the rights at stake, courts should not make this same mistake and recognize that an abundance of trustworthy scientific evidence holds that the Paris temperature targets would be a flawed reference point for determining State compliance with their human rights obligations under the Convention. Ultimately, temperature targets do not address the heart of the issue: CO₂ pollution.

Protecting Human Rights: The 350 ppm Standard

To uphold human rights, instead of focusing on outdated, negotiated temperature targets, all courts should instead consider scientists’ findings as to what is necessary to stabilise the Earth’s current energy imbalance (EEI). The EEI concept, although rarely used in policy discussions, is what climate scientists describe as the “most critical” metric for determining “the prospects for continued global warming and climate change.”

EEI is driven by elevated atmospheric concentrations of greenhouse gases—mainly carbon dioxide (CO₂) as measured in parts per million (ppm)—that are produced by human activities, particularly fossil fuel combustion. Average atmospheric CO₂ levels were approximately 419 ppmin 2022, 139 ppm higher than the pre-industrial level of 280 ppm. This too matters.

Scientific consensus indicates that to restore the stability of Earth’s climate so as to protect human life and health, States must reduce atmospheric concentrations of CO₂ to an ecologically sustainable level of 350 ppm (“350 ppm standard”). To achieve this, emissions must be brought to zero, not net-zero, as quickly as possible through steep reductions within the next decades with richer countries moving fastest, and emissions phased out by 2050 at the latest. Removal of legacy CO_2, emissions will additionally need to be implemented in a manner that respects human rights to prevent worsening many of the climate disasters the world has experienced in the last few decades. The laws of physics make clear that restoring Earth’s energy balance is the only way to safeguard the Convention rights of people who will otherwise endure catastrophic climate harms.

Importantly, EEI also reflects the gravity and urgency of the current climate crisis much more accurately than the Paris temperature targets. Global average surface temperature has already reached 1.1°C–1.3°C above pre-industrial levels, which can give the erroneous impression that an unused ‘budget’ remains for States to continue safely emitting CO₂ before reaching the Paris temperature target of 1.5°C. By contrast, measurements of atmospheric CO₂ have already reached 419 ppm, overshooting the scientifically endorsed 350 ppm limit. In other words, States are literally and figurately in the red on their carbon emissions budget.

The consequence of this CO₂ overshoot is that today, humanity is immersed in a climate emergency that has implications for State obligations with regards to impacts that have already been sustained. An ever-increasing body of scientific evidence verifies the devastating outcomes: floods, fires, droughts, mega-storms, and heatwaves are all made more frequent and severe by climate change, resulting in death, injury, disease, loss of homes and livelihoods, forced migration, food and water shortages, poverty, and violence. Furthermore, ongoing melting of glaciers and ice sheets continues to raise sea level, inundating coastlines and exacerbating storm impacts, with glaciers and the Greenland ice sheet melting to continue for decades and centuries, respectively, even at the current level of global warming.

In Closing

We sit at a precipice where it is no longer enough to do our best. We must instead do what is required. And we know the solution. Scientists across the globe have fastidiously documented that the temperature targets set forth in the Paris Agreement not only fail to protect rights, but put the very rights Applicants seek to exercise at dire risk. They have also mapped out a science-based path to minimize the extreme dangers posed to human life, health, and well-being from the climate emergency: the 350 ppm standard. This year, the Grand Chamber will deliberate on the Court’s precise role in applying the laws of science to the rights protected by the Convention. Alone the Grand Chamber judgements will not solve the climate crisis. But together, in solidarity with other judgements, humanity just might have a chance.

[1] “Best available science” is the most up-to-date science that: i) maximizes the quality, objectivity, and integrity of information, including statistical information; ii) uses multiple peer-reviewed and publicly available data; and iii) clearly documents and communicates risks and uncertainties in the scientific basis for its conclusions.

[2] One of several key challenges with temperature targets is that they cannot be precisely equated to a corresponding level of atmospheric concentration of CO₂ discussed in the following section setting out the “350 ppm standard”. However, 350 ppm of atmospheric CO₂ on a multi-decadal to century timescale equates to an ~1.0°C increase above pre-industrial levels, meaning <1.0°C of additional heating is consistent with the 350 ppm standard.

The post <strong>Verein KlimaSeniorinnen, Carême, and Duarte Agostinho: How Science Can Save Humanity</strong> appeared first on Strasbourg Observers.

By Nadia Rusinova

The recent judgment in Veres v. Spain once more revolves around the time factor in proceedings related to child abduction.  It concerns the violation of the father’s right to respect for his family life under Article 8 of the ECHR (hereinafter: the Convention). It demonstrates the detrimental effect of judicial delays especially when it comes to an excessive length at the stage of recognition and enforcement in child-related proceedings.

Facts

The applicant is the father of Z, a girl born in 2006 in Budapest, Hungary. They all lived together until 2015, when the mother moved to her parents’ home with the child, then 9 years old, and applied to the Budapest Court for custody over Z.

Later in 2015, while custody proceedings were still pending in Hungary, the mother moved with Z. to Palma de Mallorca, Spain, without informing the father, who requested the Hungarian court hearing the custody dispute to adopt interim measures. In April 2016 the Budapest court adopted three interim measures, to be applied until the final judgment was given: the establishment of Z.’s residence at her mother’s home in Hungary; the obligation for the mother to bring the child back to Hungary within eight days; and the obligation for the mother to prove the registration of Z. in a school in Hungary within the same period.

On 1 July 2016 the applicant applied to the Palma de Mallorca Civil Court for recognition and enforcement in Spain of the interim decision of the Hungarian court, without being able to prove that it had become final and enforceable. The court dismissed the father’s application, ruling that the decision was not enforceable in Spain on two separate grounds: first, Article 23 (b) of Brussels IIa Regulation, requiring that Z. be given an opportunity to be heard before the Budapest Court, had not been complied with, and second – that such omission ran counter to the principle of the child’s best interests as recognised under the Spanish law.

The appellate court overturned the first-instance court’s judgment and declared the decision enforceable. On 19 July 2018 the Spanish Supreme Court, after the final appeal lodged by the mother, accepted the findings of the appellate court and the judgment became final with immediate effect.

One month later the father applied to the Spanish Court for the enforcement of the Hungarian Courts’ decision. The Court accepted the enforcement request and ordered the mother to take Z. back to Hungary within eight days, to establish Z.’s residence in Hungary and to register her in a school in Hungary. On 1 November 2018 the mother travelled to Hungary with Z, where the custody proceedings continued, resulting in custody over Z. being assigned to the mother and visiting rights to the father. The final decision mainly relied on the fact that the child had been living with the mother for several years and that her relationship with the mother was closer than that with the father.

Relying on Article 6 § 1 and Article 8 of the Convention, the father complained that the recognition and enforcement proceedings in Spain aimed at returning his daughter back to Hungary had not complied with the ‘reasonable time’ requirement, thus interfering with his right to respect for his family life, as his relationship with his daughter had been interrupted for a period of more than two years.

Judgment

The European Court of Human Rights (hereinafter: the Court) considered that the issues raised in the case should be examined solely from the perspective of Article 8 of the Convention. As Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8. It held that there has been a violation of Article 8 as the proceedings for the recognition of the Hungarian judgment lasted about two years – from 14 September 2016, when the application had been declared admissible, until 1 November 2018, when the enforcement phase was completed.

The Court found that the overall length of the proceedings was not justified in the circumstances of the case. It took the Spanish courts more than two years to enforce the decision of the Hungarian Court, even though it should have been recognised and enforced in Spain without delay in accordance with the Brussels IIa Regulation. Spain therefore failed to deal with the case in an expeditious manner as required by the Convention in this type of disputes, and awarded EUR 24,000 in respect of non-pecuniary damage to the applicant.

Comments

This ruling is not an anomaly in the Court’s corpus of cases concerning child abduction. However, it is interesting in two aspects. First, it is another illustration of how the Convention system can lend support to the obligation on EU Member States to comply with EU law, and second, it emphasises the importance of the fair and streamlined process at the stage of actual enforcement of decisions concerning children.

In regard to the first aspect, the Court reiterated on multiple occasions that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights (for example Show v. Hungary, § 68). Consequently, the positive obligations that Article 8 lays on the Contracting States in the matter of reuniting a parent with his or her children must be interpreted, in the present case, in the light of the general principles and aims of the Brussels IIa Regulation and the 1980 Hague Child Abduction Convention.

On the second point, this case portrays the typical sad picture of international child abduction, with a multitude of legal issues around it. Three main ones will be discussed here not only in light of Article 8 but also in light of the newly introduced rules of Brussels IIb Regulation and the improvements they are meant to bring in international family disputes. They concern the importance of the time factor in child abduction proceedings, the required swiftness and efficiency when the case concerns return proceedings under different legal grounds, and the provisional enforcement as a preventive remedy.

The importance of the time factor in child abduction proceedings

It is at the heart of the summary nature of the return proceedings that any unnecessary delay must be avoided in order not to compromise the child’s welfare. The courts must act swiftly and the available procedural framework should facilitate the expeditious and efficient conduct to ensure effective protection of the right to respect for family life. It is not enough for the available proceedings to follow the usual pattern of enforcement proceedings – they must contain specific rules or mechanisms to ensure particular speediness. In addition, the authorities must have appropriate means at their disposal to ensure that contact between the parent who has been left behind and the child (if broken) is re-established and maintained while the proceedings are pending. Finally, the officials involved must apply the most effective and, at the same time, the least restrictive enforcement measure, and should try to do everything possible to ensure the well-being of the child throughout the entire enforcement procedure. 

Without overlooking that the enforcement proceedings have to protect the rights of all those involved, with the interests of the child being of paramount importance, it must be noted that it is in the nature of such proceedings that the lapse of time risks to compromise the position of the non-resident parent irretrievably (for example, Lópes Guió v. Slovakia, § 109). Moreover, as already stated in X. v. Latvia (§§ 96-97), as long as the return decision remains in force, the presumption stands that return is also in the interests of the child.

Return decision in custody proceedings or return order under the Hague Convention – which one is faster?

In this case it is notable that the applicant did not bring proceedings before the Spanish courts under the 1980 Hague Child Abduction Convention or under Article 11 of the Brussels IIa Regulation, but under Articles 21 et seq. of the latter instead, with the aim of securing the recognition and enforcement of the Hungarian judgment. He did not initiate the classic ‘Hague return’ proceedings, since he already had the return of the child granted in the form of the interim measure within the custody dispute by the Hungarian court. Is it then the case that the distinction between the Hague child abduction proceedings and the enforcement application of the return order under the general rules of the Regulation decisive as to the required swiftness?Following the argumentation of the Court, the answer to this question should be to the negative.The Court points out that unlike the proceedings brought under the 1980 Hague Convention or Article 11 of the Brussels IIa Regulation, where domestic courts are required to rule on a case no later than six weeks after an application has been lodged, neither the Brussels IIa Regulation nor the domestic law sets out a specific time-limit for the national courts to rule on the recognition of a parental responsibility judgment given in another EU Member State (and this is still the case in the Brussels IIb Regulation). However, it still notes that Article 31 of the Brussels IIa Regulation clearly states that the court is to give its decision without delay. Accordingly, the domestic courts are expected to deal swiftly with return proceedings under that Regulation, regardless of the avenue chosen by the applicant, simply to serve the main purpose of a return decision.

This approach is in line with the earlier case law of the Court. As noted in M.A. v. Austria (§ 136), specific streamlined proceedings may be required for the enforcement of return orders – be it under the Hague Convention or under the Brussels IIa Regulation. This is necessary for a number of reasons, the main ones relating to the need to ensure the welfare of the child and the possibility of maintaining a relationship with both parents, which is particularly at stake in these cases. The interpretation of the applicable provisions takes into account not only their wording and the context of each provision, but also the objective of the rule as a whole and the compliance of the decisions with the fundamental rights at stake.

In line with the abovementioned arguments, the European legislator has recently made one big step further. It concerns the Brussels IIb Regulation and the major novelty introduced by it – the abolition of exequatur for all decisions concerning parental responsibility (not only for the ‘privileged’ ones as envisaged by Brussels IIa Regulation). A return decision (granted in a custody dispute), like the one that the applicant tried to enforce in Spain, is without doubt a ‘decision concerning parental responsibility’ within the meaning of Article 2(1) of this Regulation. Therefore, it does not require a declaration of enforceability. As mentioned in the Preamble (Recital 58), the aim of making cross-border litigation concerning children less time consuming and costly justifies the abolition of the declaration of enforceability or the registration for enforcement, as applicable, prior to enforcement in the Member State of enforcement.

It follows that enforcing the return of the child granted within a parental custody dispute might not be less effective in this new setting than a return order issued under the Hague Convention. If the applicant would have had to enforce the interim decision now, under the Brussels IIb Regulation, it would be automatically enforceable in Spain under Article 34 (1), as far as it is enforceable in Hungary as the state of origin, and perhaps the outcome would be much more favourable for the father but also for the child. The father would not have had to spend 2 years in costly and emotionally burdening litigation, with the passage of time ultimately settling the dispute itself – as mentioned above, the Hungarian Court granted the custody over the child Z. to the mother and visiting rights to him, in view of the fact that the child had been living with the mother for several years and that her relationship with the mother was closer than that with the father (emphasis added).

It is worth to note that this outcome of the custody proceedings again proves the irreversible consequences of judicial delays in child abduction cases. In the recent judgment of G.K. v. Cyprus, the Court stated that ‘the aim of the Hague Convention is to prevent the abducting parent from succeeding in obtaining legal recognition, by the passage of time, of a de facto situation that he or she unilaterally created. Hence, the abducting parent cannot benefit from his or her own wrongdoing’ (§ 53). However, even when the proceedings are not under the Hague Convention but still concern wrongful removal of the child, family courts should be alert and give proper consideration to the parties’ behaviour.

Does provisional enforcement constitute an effective preventive remedy?

Was it expected from the applicant to request provisional enforcement of the return decision? The Government argued that the applicant had not exhausted all available remedies as he should have brought provisional enforcement proceedings in order to expedite the return of his daughter to Hungary. The Court, however, is not convinced about the effectiveness of such a request, and rightfully notes that even when possible under the national law, Brussels IIa Regulation does not contain any provisions regarding the possibility of provisionally enforcing a judgment given in an EU Member State while the proceedings for a declaration of enforceability are still pending in the Member State of enforcement. Furthermore, the Court noted that not only is it questionable whether provisional enforcement could be seen as an effective remedy to be used to expedite the proceedings, but it additionally entails the risk that in the event that the enforced decision is subsequently overruled, it might be necessary to undo what had been provisionally enforced. Therefore, the applicant cannot be criticised for not attempting to use this remedy.

Would it be different if the applicable instrument was not Brussels IIa Regulation, but the Recast – Brussels IIb Regulation? No, to the extent that the applicant pursued the recognition and enforcement of the Hungarian judgment in the custody proceedings. A notable improvement has been introduced with the Brussels IIb Regulation in this regard. However, it only concerns return orders issued in the Hague Convention proceedings, which according to Article 27(6) may be declared provisionally enforceable, even when not final, given the return of the child before the appeal decision is required by the best interests of the child principle. Indeed, in terms of the concerns that the Court noted regarding such provisional enforcement and subsequent overruling of the return decision, the Regulation envisages appropriate safeguards in Article 56. The enforcement of the return order may be suspended if it exposes the child to a serious risk of physical or psychological harm due to temporary impediments that have arisen after the judgment has been rendered. Moreover, if a serious risk for the child is considered to be of a lasting nature, then the enforcement may be refused.

Finally, there is another question that the facts of the case are silent about: what would the evaluation be had the father requested visiting (access) rights as an interim measure, together with the three granted ones. It looks like such access rights were rather surprisingly not at all discussed and also not granted until the final custody decision of the first instance court in 2018. If he would have had visiting rights, it would have been indeed possible to apply for its provisional enforcement under Article 40 of the Brussels IIa Regulation, which could in turn influence to a high extent the outcome of the case.

Conclusion

The enforcement of return decisions and orders looks like a sort of jigsaw puzzle – how does one make it swift, effective, cost-efficient, and child-friendly at the same time? Are the Hague Convention, Brussels II regime and Article 8 ECHR working well together to serve this purpose? Many factors may play a role together here: unexplained delays and lack of communication on the side of the enforcement authorities, obstructive behaviour or the misuse of the appeal system by the abducting parent to delay enforcement, as well as others. This leads to irreversible damage to the relationship between the parent and the child. The message is clear, and it is not a new one for everyone involved in cross-border family litigation – obtaining a child return decision no matter under which legal ground is only half of the victory, as the enforcement traditionally remains a particularly challenging part of the proceedings.

It is worth noting in this context that the efficiency and swiftness at the enforcement stage of child abduction proceedings are back on the EU agenda as well. On 26 January 2023 the European Commission sent a letter of formal notice to Poland for failure to fulfil its obligations under the Brussels IIa Regulation. This infringement case concerns the non-conformity of the Polish law with the Brussels IIa Regulation, specifically the provisions relating to the enforcement of judgments or orders that require the return of abducted children to their place of habitual residence. The Commission considers that there is a systematic and persistent failure of Polish authorities to speedily and effectively enforce judgments ordering the return of abducted children to other EU Member States.

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Jonathan McCully

The European Court of Human Rights (‘the Court’) has acknowledged on a number of occasions that ‘racial discrimination is a particularly egregious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction’ (Sejdić and Finci v. Bosnia and Herzegovina, para. 43). Nonetheless, over the last few months, the European Court of Human Rights has handed down a number of disappointing decisions on racism in policing.

A recent example of this is M.B. and Others v. Slovakia (No. 2), a case which concerned the ill-treatment of six Roma boys at the hands of the Slovak police. Although the Court did find violations against the Slovak government on some grounds, its approach to racial discrimination in the case was cursory. It did not adopt the vigorous and vigilant approach that, as the Court itself acknowledges, should follow claims of racist policing. This piece will examine how the Court failed to confront the issue of structural and systemic racism in policing in the case and, in doing so, displayed its limitations in being an anti-racist court.

Facts

This case concerned six Roma boys, who were aged between ten and sixteen years old, who were arrested by the Slovak police after a woman had been ‘assaulted and robbed by six individuals’ near ‘a housing estate mainly inhabited by Roma.’ After their arrest, the boys were taken to a police station, where their identities were checked, they were searched, and their statements were recorded.

Whilst under arrest, the boys were held in common areas under the control of law enforcement and were forced to slap and then kiss each other in turn. Some of this treatment took place in the presence of barking dogs without muzzles, while an officer swore at them and called them a ‘Gypsy gang.’ Furthermore, they were made to strip naked and shake their clothes out in front of police officers.

This incident was followed by a long-drawn-out process before the Slovak courts. A few weeks after the incident, seven police officers were dismissed on the grounds of serious misconduct, but this decision was later quashed by the administrative courts. Criminal proceedings were then taken against ten police officers, who had been charged with ‘abuse of official authority and blackmail committed with a “specific motive” consisting of ethnic hatred.’ These proceedings lasted over five years and eventually ended in the officers’ acquittal. On the final occasion that the officers were acquitted, the District Court found that the boys’ evidence was contradictory and inconsistent, that nobody noticed any injuries and, based on a mobile phone recording of the incident, it could not determine whether the accused officers were involved.

The six boys would later take their case to the European Court of Human Rights, claiming violations of Articles 3 and 14 ECHR. They claimed they had been ill-treated by police and that the State had failed to protect them from such ill-treatment by conducting an effective investigation into it. They also claimed that their Roma ethnicity had been a decisive factor in their ill-treatment, and that in the ensuing investigation the authorities had failed to take all reasonable steps to unmask the racist motive behind it.

Judgment

The Court found violations of Article 3 ECHR, both in terms of the fact that the applicants were subjected to inhuman and degrading treatment at the hands of the police and because of the inefficiency of investigations that followed the incident. When it came to Article 14 ECHR, the Court only found a violation in relation to one of the claims. It found that the State did not take ‘all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events complained about.’ This is what is referred to as the ‘procedural aspect’ of Article 14 ECHR.

In finding that the applicants had been subjected to inhuman and degrading treatment under Article 3 ECHR, the Court reiterated that where an individual is deprived of their liberty by police, any recourse to physical force ‘which has not been made strictly necessary by the person’s conduct diminishes human dignity’ and is an infringement of Article 3 ECHR. In finding a procedural violation of Article 3 ECHR, the Court criticised the length of the criminal proceedings flowing from the incident, and observed that the passage of time ‘inherently limited’ the effectiveness of any potential further investigation into the ill-treatment.

In finding a procedural violation of Article 14 ECHR, the Court reaffirmed that authorities should not treat ‘racially induced violence and brutality on an equal footing with cases that have no racist overtones’ as, to do so, would be to ‘turn a blind eye to the specific nature of acts which are particularly destructive of fundamental rights.’ The Court, considering the description of the ill-treatment provided by the domestic courts and the reference to the applicants as a ‘Gypsy gang,’ found sufficient ‘plausible information’ to alert the authorities to the need to carry out an investigation into whether racism played a role in the ill-treatment. The Court was particularly critical of the fact that, instead of seeking to establish who was responsible for ‘possibly racially motivated ill-treatment,’ the domestic authorities satisfied themselves with the conclusion that the officers being tried had not been proven guilty of such an offence.

The Court refused to find a substantive violation of Article 14 ECHR. In other words, it did not find that there was indeed a racial motive behind the ill-treatment by police. It reasoned that there was a lack of ‘contextual evidence’ available to find that racist attitudes played a role in the ill-treatment, even though it did acknowledge that the boys were referred to as a ‘Gypsy gang’ during the arrest. It noted that the European Roma Rights Centre, in their intervention before the Court, presented evidence of institutional racism and ‘anti-Gypsyism’ in policing in Slovakia. However, it went on to state that its ‘sole concern’ was to ‘ascertain whether in the case at hand the applicant’s ill‑treatment was the result of racism.’ The Court concluded, on this basis, that it had not been established that racist attitudes played a role in this particular case of ill-treatment.

The need for an anti-racist approach

This judgment comes at a time when jurisdictions across Europe have shown an interest in trying to reckon with their colonial and racist legacies. Although the Court’s approach to racial discrimination cases has developed in recent years, including using the term ‘ethnic profiling’ about police action for the first time in 2019, there is still a lot of work it could be doing to push for racial justice in Europe.

The Court, like other international courts, has a bench on which white, male judges from privileged socioeconomic backgrounds have been historically over-represented. It has also been called out for ‘failing’ racialised communities in the past. More recently, the Court dealt with the question of racial profiling in police checks for the first time in Basu v. Germany and Muhammad v. Spain and their decisions in these cases have been referred to as ‘disappointing’ and leaving ‘room for improvement.’ As with M.B. and Others v. Slovakia (No. 2), these decisions deprived the applicants of judicial recognition that racism played a role in their cases by not finding a substantive violation of Article 14 ECHR.

An anti-racist approach to the Court’s work could address some of these shortcomings, as well as strengthen and better ground its decision-making in racial discrimination cases. As has been observed by Ibram X. Kendi, in How to be an Antiracist, ‘[t]he opposite of racist isn’t “not racist.” It is “anti-racist.” What’s the difference? One endorses either the idea of a racial hierarchy as a racist, or racial equality as an anti-racist. One either believes problems are rooted in groups of people, as a racist, or locates the roots of problems in power and policies, as an anti-racist. One either allows racial inequities to persevere, as a racist, or confronts racial inequities, as an anti-racist. There is no in-between safe space of “not racist.”’ [Emphasis own]

In M.B. and Others v. Slovakia (No. 2), the Court refused to locate the roots of the case in systemic and institutional racism. In fact, the Court summarily dismissed evidence of institutional racism and ‘anti-Gypsyism’ in policing in Slovakia and seemed to conclude that it had no bearing on whether racism was a motivating factor in the case at hand. In doing so, it ignored the impact institutional racism has on achieving justice in these types of cases. Take these two aspects of the decision in which the Court could have done more: evidence and language. 

Evidence: the trouble with proving racism

First, the Court failed to engage with the difficulties and complexities of proving racism in specific instances of police ill-treatment. The incident in the case took place in a location that was under the law enforcement authorities’ control. Contexts like this give rise to an information monopoly and asymmetry privileging the police. It is often the word of the person claiming ill-treatment against the word of police. This is an asymmetry that facilitates and sustains racist policing and makes it all the harder to challenge before the courts.

The impact of this information asymmetry on access to justice has been recognised by the Court itself, in D.H. and others v. the Czech Republic, where it noted that not all cases lend themselves to rigorous application of the principle ‘he who alleged something must prove that allegation.’ In that decision, the Court went on to reiterate the principle that ‘where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.’ This principle was conspicuously missing from the judgment in M.B. and Others v. Slovakia (No. 2).

Racism can be overt, and it can be covert. It can be conscious, and it can be unconscious. The racist motive behind ill-treatment can lie in the minds of the person or persons carrying out the conduct. It is, therefore, inherently difficult to prove. This is especially true where there is institutional racism, as organisational- or societal-level racism can take many subtle and concealed forms. It is contexts like the one in  M.B. and Others v. Slovakia (No. 2) which require an alternative approach to proof, as racist motives can rarely be established by direct evidence (see, for example, the Quebec Superior Court reasoning in Luamba v. Attorney General of Québec, para. 45; see also Stoica v. Romania, para. 119: ‘proving racial motivation will often be extremely difficult in practice’). Yet the Court, in this instance, determined that there was not enough ‘contextual evidence’ to conclude that racism was a causal factor in the ill-treatment and, for this reason, refused to shift the burden of proof onto the Government.

Language: the ‘gang’ as linguistic racism

Second, the Court failed to meaningfully reflect on the ‘contextual evidence’ of the language used by the police in referring to the boys as a ‘Gypsy gang.’ These two words carry a lot of relevant context, and embody the dynamics of collective punishment inflicted on Roma communities. In Europe, collective punishment is frequently deployed against racialised communities and it has its roots in colonialism and imperialism. One way in which collective punishment manifests itself in policing strategies today is in the racialised construct of the ‘gang.’ As has been observed by Adam Elliott-Cooper in Black Resistance to British Policing, policing policies and moral panics around ‘gangs’ reproduce ‘racist mythologies’ through the portrayal of groups of people as criminal. Quoting the work of Hortense Spilliers, he refers to the term ‘gang’ as ‘racist “grammar”’ that emanates ‘from the semantic and iconic folds buried deep in the collective past, that come to surround and signify the captive person.’

The Court seemingly did not consider the role that collective punishment, which has been described as lying at the heart of ‘anti-Gypsyism,’ played in the present case. Nor did it draw any inferences from the explicit use of language and stereotyping (i.e. ‘Gypsy gang’) by a police officer that is frequently used to legitimise racist policing practices.

Furthermore, the treatment of the boys as a collective or ‘gang’ can be starkly contrasted with how the domestic authorities viewed the police in the case. In the criminal proceedings, the courts acquitted the accused police officers because they were not satisfied that they were individually responsible for the ill-treatment. The Roma boys were treated as a ‘gang,’ yet the police were treated as individuals. Parallels can be drawn with the overused reference by authorities in the US and Europe to ‘a few bad apples’ when excusing racialised policing.

Conclusion

The ill-treatment in M.B. and Others v. Slovakia (No. 2) cannot be assessed in isolation from the context of structural racism in which they took place, and much more could have been done by the Court to draw inferences from the evidence presented to it. Applying too high a threshold of proof in claims of substantive violations of Article 14 ECHR will result in racism going unchecked and unacknowledged. Moreover, it will place significant limits on the Court’s ability to address structural racial inequities in policing and criminal justice. Ultimately, it will be a denial of racial justice.

The post <strong><em>M.B. and Others v. Slovakia (No. 2): </em>the need for an anti-racist approach in European Court of Human Rights’ decision</strong> appeared first on Strasbourg Observers.

by Jacob van de Kerkhof

On 15 December 2022, the European Court of Human Rights rendered its judgment in Peradze et al v Georgia, concerning 7 protestors who were arrested at a demonstration against a construction project for holding banners with lewd language (along the lines of ‘[construction project], my cock’). The applicants received a minor administrative sanction, which was upheld in appeal. They argued that interfering with their protest because of lewd language violated their right to peaceful assembly in conjunction with their right to freedom of expression. The Court had to decide whether the Georgian national authorities made the right balancing act in protecting public morals and ensuring the right to peaceful assembly ex Article 11 ECHR read in conjunction with the freedom of expression ex Article 10 ECHR. Even though this case does not constitute a revolutionary new precedent, it does confirm standing case law and the balancing of interests that national authorities need to make when addressing lewd speech in demonstrations. 

Facts

Since 2014, the Georgian capital of Tbilisi is home to a large construction project on Sololaki Hill, ‘Panorama Tbilisi’. The construction process of this vast multifunctional complex encountered vast resistance from architects and environmental activists alike, because of the irreparable damage it allegedly causes to Tbilisi’s Old Town landscape. In 2015, Tbilisi hosted the European Youth Summer Olympic Festival (EYOF), during which the Olympic Flame was stationed outside of Tbilisi city hall. During the EYOF, protestors gathered in front of the Tbilisi City Hall to protest the construction of Panorama Tbilisi. The seven applicants in this case were among these protestors. The first applicant, Ms Peradze, was instructed by the police to remain within the boundaries of peaceful and regular conduct. The second applicant, Mr Makarashvili, stood holding a banner likening Panorama Tbilisi to a penis, using Georgian colloquial language (‘პანორამაარა,ყლე!’). After standing at the protest for 50 minutes, he was removed by the police and arrested under Article 166 of the Code of Administrative Offences (CAO), holding that disorderly conduct such as swearing and cursing in public places, harassing people and disturbing public order can be fined or punished with up to fifteen days of detention. After his arrest, the six other applicants created banners with the same slogan and started flaunting these in front of the police, upon which they were also arrested under Article 166 CAO. One of the protestors was also charged under Article 173 CAO for disobeying police orders. Before the Tblisi City Court, the arresting police officers noted their concern for the applicants conduct, especially the lewd nature of the banner and the presence of children – it was the European Youth Olympic Festival, after all. They also argued that the applicants had been chanting the slogan. Applicants relied on exercising their rights to freedom of expression and freedom of peaceful assembly under Article 10 and 11 of the European Convention on Human Rights (ECHR), which had been interfered with by the police officers’ actions. They further denied shouting at the police officers. 

The Tbilisi City Court found the applicants guilty of disorderly conduct. They acknowledged the protestors exercise of their rights under Article 10 and 11 of the Convention, but argued that those could be limited within a proportionate manner in pursuit of a legitimate aim if that limitation is necessary in a democratic society. The applicant’s situation of swearing in public directly fell under Article 166 CAO, and interference with their protest was in pursuit of public order and public morals. The City Court found that the use of pejorative language constituted ‘sheer indecency, void of any political, cultural, educational or scientific value’. Under the Georgian Freedom of Expression Act section 9(1), indecency cannot contribute to the public debate in a civilized manner, and limiting such expressions is not a major limitation to the applicant’s right to freedom of expression. Because the pejorative language used by applicants is a particularly offensive insult in Georgian society, the expression could not convey any particular opinion and contribute to the public debate. Limiting that expression to preserve public order within the meaning of Article 166 was necessary in a democratic society to protect public morals, in particular that of the children standing close to the demonstration. In appeal, the appellate court upheld the lower court’s decision, and held that swearing was indeed covered by Article 166 CAO and that the lower court had made a thorough balancing act. Next to that, the protest as a whole was not disrupted by the police’s interference. 

Summary

The issue at hand was whether the applicant’s arrest during the protest amounted to a violation of their right to freedom of expression under Article 10 ECHR and right to peaceful assembly under Article 11 ECHR. Despite Georgia’s admissibility challenge, the Court found that domestic remedies have been exhausted to a sufficient extent, especially in light of the practical reality for the applicant (Adamski v Poland): when an applicant has used an effective and sufficient remedy, they cannot be expected to try others that are no more likely to be successful. 

The applicants complained that the interference of their rights under Article 10 and 11 of the Convention was not prescribed by law, since the City Court’s interpretation of Article 166 CAO was too broad and not foreseeable. They further argued that the interference did not have a legitimate aim nor was it necessary in a democratic society, because, whilst the slang uttered during the protest was offensive, limiting a contribution to the public debate to uphold an abstract notion of public morals was disproportional to their interest of contributing to the public debate. Georgia objected to their complaints, arguing that the interference was prescribed by Article 166 CAO, and the necessity in democratic society was safeguarded by the proceedings before the domestic courts, the tolerance of the display of slang at the protest before the police interfered, the position of national authorities to assess the peculiarities of public morals in Georgian society and the lenient nature of applicants’ sentencing.

In the context of Article 11, the Court had to assess whether the interference pursued a legitimate aim answering a pressing social need, and whether that interference is proportionate to the aim and justified with relevant and sufficient reasons. It had to decide whether these standards are applied by the national authorities. In that light, contracting states enjoy a wide discretion: demonstrations can disrupt ordinary life but national authorities enjoy a wide discretion when it comes to the degree of tolerance to that disruption. National authorities need to make an assessment on their permissibility on a case-by-case basis (Kudrevicius et al v Lithuania). In the context of Article 10, the Court reiterates that freedom of expression extends to offensive, shocking and disturbing content as well (Handyside v United Kingdom). There is especially little scope for limitation of freedom of expression in cases of political speech or questions of public interest (Bumbes v Romania). The form of that expression does matter: offensive language is not necessarily protected by the freedom of expression, when its sole intention is to insult particular individuals or institutions (Skalka v Poland); conversely, if vulgar language is used as a stylistic feature to convey a political message, it is protected (Uj v Hungary).

The Court found that the applicants could have foreseen that the interference was prescribed by law – their conduct could entail liability under Article 166 CAO. The Court further found that the interference pursued a legitimate aim. However, the interference was not necessary in a democratic society; because the building project was a topic of public interest, the scope for interference was limited (Bumbes). The Court considered that even though national authorities have discretion, it can assess whether the authorities have duly considered the extent of the ‘disruption to ordinary life’ in relation to the applicants’ protest. Because the applicants were calmly holding signs, the disruption to ordinary life of the demonstration was limited to the sheer indecency of the texts on the applicants’ banners. The indecency of that language is best tested by the national court, who is better acquainted with the linguistic features of the Georgian language. However, sheer indecency does not exclude an expression from protection; if it is used for stylistic purposes it may still not be limited. In this case, the Court found that the indecency of the language was incorrectly dissociated from its context and apparent goal. The obscene language was used by applicants as a stylistic tool to express disapproval with the construction project. The Court reiterated a number of cases in which vulgar and offensive language was protected under Article 10 (Vereinigung Bildender Künstler v. Austria; Mătăsaru v. the Republic of Moldova; and Patrício Monteiro Telo de Abreu v. Portugal), as long as it served a stylistic purpose contributing to a debate on topics of public interest. The interference with applicant’s freedom under Article 11 – in the context of Article 10 – was disproportional, because removal from protest may have a chilling effect on freedom of expression in further protests. The national court has failed to assess the abovementioned aspects of applicants’ protest. As such, the Court found that there has been a violation of Article 11 of the Convention, read in light of Article 10. 

Comment

In Peradze et al v Georgia, the Court decided on a case combining Article 11 on the right to peaceful assembly and Article 10 on the right to freedom of expression. Noteworthy about this case is that the right to freedom of expression informs the framework in determining whether the right to freedom of assembly was interfered with. In that context, the Court did not depart from standing caselaw, and relied predominantly on existing standards. Regardless, the Court clarified how the right to freedom of expression may inform the framework for testing interference with the right to freedom of assembly, and set out the criteria that national authorities need to take into account. 

The Court determined whether lewd language used in this case was protected under the freedom of expression, and if not, whether it caused a disruption to public life in a way that a normal exercise of the right to peaceful assembly would not. That assessment can be particularly sensitive because it requires the Court to decide whether a national court made a correct assessment of the lewd nature of the applicant’s banners in its own language (in casu Georgian). The Court mentioned this sensitivity in para 44. A further sensitivity lies in assessing whether the lewdness of the language would cause a disruption of public life, in which case the Court too acknowledged the wide discretion of the national authorities in that regard in para 42. 

The Court therefore did not address the lewdness of the statement on the banners (პანორამაარა,ყლე), but addressed whether the national court has made a proper impact assessment of the lewdness and the disturbance to public life. It addressed two points to that end. Firstly, the Court found that the national court did not assess the degree to which applicants’ protest disturbed public life. The limitation of the protest was part of the national authorities’ discretion, but that discretion does need to account for the proportionality of a limitation of the right to peaceful assembly. Indeed, even if the applicants were in violation of Article 166 CAO by using vulgar language on their banners, their actions still would need to be assessed from a proportionality standpoint. In this case, limiting the applicants’ protest was not proportional to the disturbance that they caused to public life by quietly holding their banners. Secondly, the Court confirmed that vulgarity is not necessarily excluded from protection under Article 10. InSkalka, the Court found that offensive language is excluded from protection if its sole intention is to insult. Further, if the banners were devoid of any political message, it is plausible that sanctioning applicants under Article 166 CAO together with Article 9(1) of the Georgian Free Speech Act was not an interference with their freedom of expression. However, in Vereinigung Bildender Künstler v Austria and other case law cited in para 45, vulgar language is not excluded from protection under Article 10 if it contributes to the public debate. In casu vulgar language was used as a stylistic feature (see Uj v Hungary) to express public dismay – and not to insult an individual or institution in particular (cf. Skalka). This in itself is not a sufficient reason to restrict speech in a public protest.

As such, the Court did not tread too much in the discretion of national authorities; it also did not close the door on national authorities seeking to interfere in protests to protect public morals in cases of vulgar language. However, when doing so, the national authorities need to account for (i) proportionality, being the degree of disturbance with public life caused by the protest and its vulgar language justifying interference with the protestors’ rights. In this case peacefully holding signs without being aggressive did not amount to a disturbance that was different from any other peaceful assembly. And (ii) the nature of the vulgar language used. Lewdness may be excluded from protection of Article 10 ECHR and therefore be limited, if it is used to offend or insult particular persons or institutions. However, if it is used as a stylistic feature to contribute to the public debate, the scope for interference with this expression is limited. In this sense, the Court did not develop a new line of caselaw that departs from the nuances of Skalka, Uj or VBK v Austria. It confirmed how these decisions inform the assessment whether the interference with the right to peaceful assembly was necessary in a democratic society (Bumbes). By doing so, it provided national authorities with a framework for assessment for future protests.

Conclusion

Peradze v Georgia clarifies the factors that national authorities need to take into account when deciding to interfere with protests using vulgar slurs. It establishes that, even though member states have a large discretion in defining the borders of their own public morals, they need to account for proportionality and democratic values in the process. In a time when protests are becoming increasingly polarized and aggressive, this is a helpful guidance. Vulgarity in its own right cannot be a reason to interfere with someone’s right to freedom of expression or right to peaceful assembly, but must assessed within its context and its impact in the public disturbance of the protest. Arguably, this case does not hold a new judicial precedent. However, it is a welcome clarification in protestors’ rights and national authorities’ responsibilities when it comes to dealing with public demonstrations.   

The post Peradze v Georgia: Vulgar Language, Public Morals and the Right to Peaceful Assembly appeared first on Strasbourg Observers.

Mathilde Hardt

Germain Haumont

Totopa v. Spain was struck out from the list on May 10, 2022. The case has not been judged. It was rather considered as “resolved” under Article 37(1)(b) ECHR. For once the application had been lodged, the Spanish Government finally gave the applicant what she had been asking for months: the custody of her four-year-old child. Yet the applicant was still complaining about the lack of any contact with her child during seven months and the complexity of the reunification procedure, while the Government did not recognise the alleged violation of Articles 8 and 13 ECHR. There was no agreement between them. Albeit not ruling on the merits, the Court blamed the applicant for the delay, overlooking the fact that domestic procedural constraints aggravated the “migratory vulnerabilities” she was facing – and caused the alleged violations of the Convention. Vulnerability was met with victim blaming. 

1. Facts

The applicant is an Ivorian woman and mother of a four-year-old child. She decided to migrate to Europe with her son and her sister. Arrived in Morocco, she temporarily entrusted her son to her sister so that they would reach Europe first. They departed on a makeshift boat in March 2017. After having been subjected to a pushback, they were taken to the Spanish enclave of Melilla, where the applicant’s child was placed in the protection of social services and separated from his aunt.

The applicant reached Spain a month later. The boat she was traveling on sank and two people drowned. She was rescued by the Spanish Coast Guard and placed in detention in Cadiz. She was finally released in May 2017. From then on, she started making several requests to the Spanish administrative authorities to get her child back, with the support of a Spanish NGO (Women’s Link Worldwide). After sending DNA tests to various laboratories, these tests were sent to the accredited laboratory on September 13, 2017.

Five months after they separated in Morocco, the applicant had still not been able to have any contact with her son, even by phone. She therefore initiated civil proceedings to obtain measures to allow her, at least, a meeting or a phone call with her son. She also lodged a complaint for administrative inaction and negligence with the Spanish Office of the Ombudsperson.

Having received no satisfaction from both administrative and civil proceedings, she lodged a request for interim measures with the ECtHR on October 17, 2017. The Court asked the State to submit information. On November 8, the results of the DNA test established the biological link between the applicant and her child. The reunification occurred a few days later, in Melilla.

2. Decision

We were provided the case file, which helps understand the legal discussion that took place in Strasbourg. The parties discussed at length the responsibility for the extensive duration of the proceedings that led to the seven-month separation between the applicant and her child. However, those arguments are only partially reflected in the Court’s decision.

The applicant claimed that she had been proactive during the whole reunification procedure. She filled three written complaints and had to wait until September 3 (i.e., five months after her arrival in Spain and three months after her third written request) before receiving the first information about the protocol for conducting a DNA test. She stressed that she filed documents attesting to her parentage, as well as to the steps she took to obtain a DNA test as soon as she made her second written request to the administration, in July 2017. She also argued that the Spanish authorities did not take prompt actions to enable her to have some contacts with her son for a long period, failed to comply with their own protocols, and burdened excessive legal formalism on her shoulders.

The Government rebutted that the reunification process was delayed because of the applicant’s procedural inability. It considered that, upon request, the authorities informed her on the best way to exercise her rights as well as on the evolution of the proceedings, and proactively took all necessary steps to verify the mother and son relationship. It concluded that the applicant had lost her status of victim, as she and her child were reunited in November 2017.

The Court decided not to examine the victim status question (Article 34 of the Convention). It rather looked at the case through the lens of Article 37(1)(b) of the Convention. The latter provides that the Court may decide to strike out an application if it considers the matter resolved and unrelated to key or structural human right issues (Petrescu v. Portugal, §§ 62-68). Under the existing case-law, there are two conditions to strike out an application on that ground (§ 14). First, the facts that are complained about must have ceased. Second, the consequences of the potential breach of the Convention must have been deleted (Association SOS Attentats et De Boery v. France (G.C.), § 32).

The central legal issue pertained to this second condition: does a reunification between mother and son after seven months of separation suffice to consider a case resolved under Articles 8, 13, and 37(1)(b) of the Convention? With a view to answering this question, the Court tested the applicant’s procedural command, and hastily concluded that all procedural delays at domestic level were imputable to her (§§ 18-19).

Since the applicant and her child were eventually reunited and the procedural command of the applicant was judged insufficient, the case is deemed resolved under Article 37(1)(b) of the Convention.

3. Analysis

The strike-out of Totopa suggests that when the Court shifts from Article 34 (victim status) to Article 37(1)(b) ECHR (case resolved) on its own motion, it in fact shifts to benevolence towards national authorities, benevolence that here comes with victim blaming. This hypothesis would explain why neither the familial link between a mother and her young child, the consequences of a separation on that link (A), nor the intersectional – migratory, racial and gendered – vulnerability of the applicant were taken into consideration by the Court (B).

However, benevolence finds one legal limit in Article 37(2) of the Convention and Article 43(5) of the Rules of Court: exceptional circumstances may justify restoring the case to the list. And the withdrawal of the favourable domestic decision that resolved the case could qualify as such an exceptional circumstance (comp. Willems et Gorjon v. Belgium, § 66).

A. From Article 34 to Article 37(1)(b) ECHR: The victim must be adept at complex legal procedures…

Article 37(1)(b) ECHR allows the Court to strike out a case from the list even though the applicant has not formally lost the status of victim where the defending Government took steps to address the consequences of the alleged violation of the Convention. Strike-out decisions may be taken although the Government did not recognise the alleged violation (El Majjaoui et Stichting Touba Moskee v. Pays-Bas (G.C.), § 28).

Faced with this issue, the Court must verify whether the consequences of the potential breach of the Convention were deleted by the favourable decision taken by the Government. For instance, where the applicant received an exit order which execution could have breached her fundamental rights, the subsequent decision of the Government not to enforce this order justifies striking out the case (Yang Chun Jin Alias Yang Xiaolin v. Hungary, §§ 20-22; Syssoyeva and others v. Latvia (G.C.), §§ 98-100; E.G. v. Belgium (dec.), § 27; Gana v. Belgium, § 33).

However, when a long separation between a parent and his or her child occurred, the Court used to apply a more cautious analysis. Specially, in Tanda-Muzinga v. France, the Courtheld that consequences from a six-year family separation cannot be “deleted” by subsequent reunification where the applicants did not delay the proceeding with “a manifestly fraudulent attitude”, and where the applicants’ children are minors (§ 58).

In Totopa, the Court opted for another line of reasoning that exclusively focussed on the procedural attitude of the applicant. The consequences of the separation are silenced, as well as the complexity of the domestic procedure the applicant had to comply with (§ 18). By contrast, the applicant’s procedural conduct is described at length with a blaming tone overlooking the vulnerability of the applicant whose conduct did not prove fraudulent in any aspect (see below, section B).

How to reconcile these two precedents in their interpretation of Article 37(1)(b) ECHR in the event of a family separation involving young children? There are two paths. The first would be that the separation in Totopa being less long (7 months) than in Tanda-Muzinga (6 years), the consequences of the alleged violation were seen as easier to “delete”. A seven-month separation would be considered a “normal separation” (comp. Wampach v. Luxembourg, § 58). The second path would be that the consequences of the family separation are only considered by the Court where the applicant cannot be held responsible for procedural mistakes, be they fraudulent or not. This second path better fits with the decision’s wording that bluntly blames the applicant for all procedural delays regardless of the disputed procedural context and the nature of the alleged violation. Therefore, by contrast with Tanda-Muzinga, the Court did not question the reasons behind these delays: was the applicant voluntarily fraudulent or careless, or was she confused by over-complex procedures?

B. … Otherwise, she is blamed regardless of her vulnerability

Confusion could have been highlighted if the vulnerability component of the case had been considered. The concept of vulnerability is a polyvalent legal tool, a “chameleon concept”, that might influence judicial reasoning in various ways. It plays a “normative pivotal role” in the moral structure of human rights. This is especially true when multiple factors of vulnerability cumulate (Muskhadzhiyeva et al. v. Belgium, § 56; B.S. v. Spain, § 71), as in Totopa.

While certain categories of vulnerable persons are clearly defined, the Court has proved open to a gradual and cumulative analysis of different criteria, the sum of which may lead to the qualification of vulnerability (see M.S.S. v. Belgium and Greece (GC), §§ 232-233).

From a human right perspective, vulnerability implies both material and procedural effects.

The procedural dimension of vulnerability specially operates on the analysis ofadmissibility.  On several occasions, the Court has relied on the vulnerability of an applicant to facilitate its jurisdiction on the basis of Article 34 (e.g., on the examination of the victim status: IIhan v. Turkey, § 35) or Article 35(1) ECHR (e.g., on the exhaustion of domestic remedies: Aksoy v. Turkey, §§ 56-57 ; V.D. v. Romania, § 127; on the compliance with the four-month time-limit: Chiragov and others v. Armenia, § 146; and on the duty of diligence: Monacu and others v. Romania, § 265). Vulnerability may also constitute an obstacle to the effective exercise of the right of appeal within the meaning of Article 34, last sentence,ECHR (Akdivar and others. v. Turkey, § 105) or be considered when assessing the ability to lodge a complaint under Rules of Court 36(1) and 45(3) (Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, § 103 ; comp. G. J. v. Spain, § 52). The procedural dimension of vulnerability has also led the Court to lighten the burden of proof of a migrant applicant (M.S.S. v. Belgium and Greece, § 352).

By contrast, the Court barely seems to rely on vulnerability in strike-out decisions. Admittedly, this idea appears in the background of Tanda-Muzinga v. France, where it refers to a “difficult context after their flight from the Democratic Republic of Congo” as a factor that necessarily led to “serious consequences” that their subsequent reunion could not delete (§ 58). Other strike-out decisions are yet far less sensitive to the vulnerability component. For instance, in Hussun, the application of dozens of irregular migrants was struck out for want of details in the powers of attorney (§§ 49-50). The Court reached a similar outcome in V.M. and others v. Belgium.

In Totopa, the applicant was both inherently vulnerable, as a racialized woman, and contextually vulnerable, as a single mother, irregular migrant, previously detained and smuggled to Spain. Yet the Court did not draw any legal consequence from her alleged intersectional vulnerability. Instead, it proceeded to an abstract analysis of the case’s context and asserted that the domestic proceedings were only delayed because of her own procedural conduct (§ 18).

On top of the fact that its reasoning does not make intelligible why the Court preferred to support the Government’s argument regarding the contested factual background, such a bias shows benevolence towards national authorities and is phrased with an unnecessarily blaming tone (comp. V.M. and others v. Belgium, § 36).

Doing so, the Court missed an important opportunity to assert vulnerable migrant women’s fundamental rights when they meet unbending and complex procedural constraints at European borders. Totopa is indeed not isolated in Spain or at other European external borders, although these situations frequently go unnoticed because of multiple “migratory vulnerabilities”. Targeting practices by police and immigration authorities in public places and services, such as public transportation or hospitals, to apprehend irregular migrants are also a reality. And such realities have a severe impact on the exercise of irregular migrants’ human rights, prompting fears of detection and arrest, and complicating a range of administrative procedures. In this context, irregular migrants often lack means of communication and/or knowledge of procedural requirements.

Procedural and administrative obstacles faced by the applicant were substantiated in the Totopa case file. The procedure was indeed very complex. Ms Totopa lacked legal landmarks, did not speak Spanish, and was not allowed to move, even less to travel to Melilla, because of her irregular status. As for the fact that an NGO attempted to mitigate these obstacles by supporting the applicant before domestic courts, it should not allow Spain to circumvent the normative consequences flowing from a pre-existing intersectional and migratory vulnerability.

In light of these elements, the Court’s decision of striking out Totopa from the list could have included her specific situation of vulnerability and assessed whether the State had taken appropriate measures to reduce the effects of this situation on her. At least, the Court could have referred to it and motivated its decision as to why it decided to follow the polished factual background presented by the responding State. In sharp contrast, the Court chose to follow neither of these two lines of reasoning. As in other strike-out decisions, migratory vulnerabilities were thus overshadowed.

4. Concluding remarks

Together with inadmissibility decisions, strike-out decisions represent 32 961 of the total of 39 092 applications decided in 2021, namely 91% of last year ECtHR’s case law. Despite their importance in the Court’s legal impact, such decisions are relatively under-researched.

Totopa is one more missed opportunity to clarify the implication of procedural vulnerability when it arises in that context. It rather illustrates the Court’s reluctance to recognise normative effects to procedural vulnerability when assessing striking out criteria. This reluctance narrows the access to the ECtHR for vulnerable migrants, such as newly migrant mothers under complex domestic procedural constraints.

***

The authors would like to thank Gema Fernández Rodríguez de Liévana from Women’s Link Worldwide, and Prof. Sébastien Van Drooghenbroeck for their insightful comments and discussions. The authors are not members themselves of Women’s Link Worldwide and were not instructed what to write in this post.

The post <strong>Why was <em>Totopa v. Spain</em> struck out from the list? A case of silenced vulnerability of a migrant mother under complex procedural constraints</strong> appeared first on Strasbourg Observers.

By Maija Dahlberg

In Beeler v Switzerland the European Court of Human Rights (ECtHR) had to balance between its far-reaching human rights interpretations and the principle of state sovereignty. Concretely, the case concerned an interesting interpretative question whether to extend the scope of applicability of Article 8 ECHR to social welfare benefits.

Formally, the ECHR does not include economic and social rights, but instead a wide range of civil and political rights. In the Council of Europe (CoE) legal system, economic and social rights are protected through the European Social Charter. The aim has been to protect both civil rights and social rights, but in the separate CoE conventions. Despite this formal distinction, the ECtHR has long emphasized that the ECHR should be interpreted under ‘present day conditions’ and in a manner which protects the rights provided for under the ECHR ‘practically and effectively’. Through its dynamic methods of interpretation, the ECtHR has de facto included many economic and social rights in the interpretation of many ECHR provisions (for further information see here and here).

The ECtHR’s case-law shows that cases relating to social welfare benefits are usually handled under Article 1 of Protocol No. 1, which concerns the protection of property. The ECtHR has, however, on occasion also addressed issues relating to social welfare benefits under Article 8, which concerns the right to respect for private and family life. In Beeler v Switzerland the question arose as to whether it is justified to interpret social welfare benefits exceptionally under Article 8 instead of Article 1 of Protocol No. 1.

Short overview of the facts

The facts of the present case were introduced in an earlier blog post by Dr Alice Margaria where the case is analysed from the perspective of the interpretation of Article 14 in conjunction with Article 8. As regards the key facts, the applicant essentially stated that unlike a widow in a similar situation, he had ceased to be entitled to a widower’s pension on his younger daughter reaching the age of majority. The applicant claimed that he had been discriminated against and relied on Article 14 read in conjunction with Article 8. In essence, the interpretation of the applicability of Article 8 was crucial since it was decisive as to whether the ECtHR could evaluate the merits of the case at all.

It should be noted that Switzerland has not ratified either the Social Charter or Protocol No. 1. The ECtHR has regularly assessed issues relating to eligibility for social welfare benefits under Article 1 of Protocol No. 1 concerning the protection of property. The Swiss Government explained that it decided not to ratify Protocol No. 1 in order to keep questions relating to social rights and welfare benefits under its own command (para. 38).  Consequently, the key point at issue in the case is as follows: if it is not possible to evaluate a case concerning social welfare benefits under Article 1 of Protocol No. 1 and it was the clear aim of the sovereign state to ensure that questions relating to social rights and welfare benefits would not fall under the scope of the application of the ECHR, is it right to extend the scope of Article 8 and include social rights under that Article?

Assessment of social welfare benefits under Article 8

The Grand Chamber began by outlining its case-law practice concerning the question of whether social welfare benefits fall under the scope of Article 8 or under Article 1 of Protocol No. 1. The Grand Chamber noted that in the vast majority of cases where the ECtHR has ruled on alleged discrimination in the sphere of entitlement to social welfare benefits, its analysis has focused on Article 1 of Protocol No. 1, and not on Article 8. Generally, questions relating to social welfare benefits are analysed under Article 1 of Protocol No. 1.

Next, the Grand Chamber analysed its case-law and explained in which circumstances social welfare benefits are included under Article 8. At first, the Grand Chamber emphasized that the case-law praxis is not clear as regards the scope of Article 8 and social welfare benefits (para. 66). At the same time, it admitted that the ECtHR has sometimes examined claims concerning social welfare benefits under Article 8 (para. 60). In those cases, the ECtHR has highlighted that while Article 8 does not guarantee the right to a social welfare benefit, where a state decides to create such a right it cannot take discriminatory measures within the meaning of Article 14 (see Konstantin Markin v Russia and Aldeguer Tomás v Spain). Consequently, the Grand Chamber concluded that the scope of Article 14 read in conjunction with Article 8 may be more extensive than that of Article 8 read alone (para. 62).

The threshold and criteria for applying Article 8 to welfare benefits have not been clear as, according to the ECtHR’s previous case law, it could either be that parental leave and an allowance related to it ‘necessarily affected’ the way in which their family life was organized (see, e.g. Konstantin Markin v Russia) or the benefit is ‘liable to affect’ the way in which family life is organized (see, e.g. Di Trizio v Switzerland).

Against this backdrop, the Grand Chamber conceded that the interpretation of social welfare benefits under Article 8 in its case-law had not been consistent (para. 66). It also noted that all financial benefits have a certain effect on family life, which could lead to the conclusion that all social welfare benefit issues fall within the scope of Article 8. The Grand Chamber, however, rejected this conclusion since such an approach would be too excessive (para. 67). As a result, the Grand Chamber opted for ‘necessarily affect’ as the threshold for evaluating whether welfare benefits may fall under Article 8 (para. 72).

Importantly, besides setting interpretative standards relating to parental leave allowances and their applicability under the scope of Article 8 (para. 71), the Grand Chamber aimed to set up more general criteria to be able to assess when social welfare benefit may fall under Article 8. In this sense, for a social welfare benefit to be assessed as falling under the scope of Article 8 the nature of the benefit must be taken into account, paying attention to the following criteria: (1) the aim of the benefit; (2) the criteria for awarding, calculating and terminating the benefit as set forth in the relevant statutory provisions; (3) the effects on the way in which family life is organized; and (4) the practical repercussions of the benefit given the applicant’s individual circumstances and family life throughout the period during which the benefit is paid. (para. 72)

Next, the Grand Chamber applied the criteria to the present case. It emphasized that the criteria must be considered as a whole by taking into account the entire period (1997 to 2010 in the case at hand) during which the applicant received a widower’s pension. The Grand Chamber first evaluated the aim of this pension, emphasizing the conditions applicable to it, which clearly state that the surviving parent must have one child or more at the time of the spouse’s death and surviving spouse must be living together with the deceased spouse’s children. In this case, the applicant was entitled to a widower’s pension on its introduction in 1997 solely because he was the father of dependent children.

Second, the Grand Chamber pointed out that the termination of the widower’s pension was also the consequence of the applicant’s family circumstances, specifically the age of his children, since his entitlement to the pension lapsed when his younger daughter reached the age of 18. All in all, the pension in question seeks to promote family life for the surviving spouse by enabling the latter to look after his children full-time. Furthermore, the Grand Chamber took the view that receipt of the widower’s pension necessarily affected the way in which the applicant’s family was organized. Finally, the Grand Chamber concluded that the facts of the case meant that it fell within the ambit of Article 8.

Dissenting opinion

Five judges dissented from the majority decision (judges Kjølbro, Kucsko-Stadlmayer, Mourou-Vikström, Koskelo and Roosma) on the conclusion that social welfare benefits should be included within the scope of Article 8. The dissenting judges criticized the majority’s decision to broaden the applicability of Article 8 to the field of social welfare benefits. In essence, the dissenting judges called for the ECtHR to exercise judicial restraint in matters relating to social welfare policy. Questions relating to social policy include political deliberation on how to distribute scarce resources and how to balance the various kinds of benefits and advantages to be granted. From the dissenting judges’ point of view, matters relating to social welfare policy do not fall within the ECtHR’s supervision but should instead be addressed at domestic level by the democratically elected national decision-makers. Here, the dissenting judges are touching significant constitutional principles such as the principle of subsidiarity, the separation of powers, the principle of democracy and the role of courts in a democratic societies. Importantly, from the separation of powers point of view it is not a court’s task to decide political questions, as it should leave the political decision-making to the legislature.

In addition, the dissenting opinion points out that it was an explicit decision by a sovereign Swiss state not to ratify Protocol No. 1. The point was to avoid the application of the ECHR provisions in the field of social welfare claims. The dissenting judges took the view that the majority’s circumvention of the will of a sovereign state by applying Article 8 would also damage confidence in the ECHR system in the long run. Both the amendments of the ECHR and legal research have emphasised the principle of subsidiarity in the work of the ECtHR. In essence, the aim has been to strengthen the Court’s legitimacy by respecting the decisions of the sovereign states and by emphasising that the ECtHR’s role is only to supervise that national authorities have respected the standards of the ECHR provisions. Especially regarding questions which concern allocating resources and societally or culturally sensitive questions, the Court has left a wide discretion to national authorities. Against this background, the majority neglects the principle of subsidiarity and the principle of state sovereignty quite bluntly. In the present case, the exact will of the sovereign state has been to keep the decision-making relating to social welfare benefits at the national level. The majority does not give any reasons why it decided to ignore the explicit decision of the state to keep the distribution of social welfare benefits at the national level.

Lastly, the dissenting judges emphasized the circumstances of the case under consideration and the individual’s responsibility. The applicant’s decision to quit his job and to fully devote himself to the parenting role during the entire period until the children reached adulthood was his own. The applicant would have received the survivor’s pension regardless of the manner in which the care of the children was organized. In addition, the applicant knew from the outset that the duration of the pension was limited in time and would not continue beyond the point at which both his children had reached the age of majority. The dissenting judges criticized the majority’s argumentation which suggests that an individual is entitled to rely on the collective of contributors to the welfare system in any circumstances. They argued that the majority’s interpretation was steered by an ideological stance, which, I think, is a rather serious allegation since from the judicial independence point of view political ideologies should not steer the judicial deliberation. At the same time, legal research has questioned the possibility for a neutral and unbiased judicial decision-making. In addition,  tensions between law, politics and morals are inherently part of human rights adjudication.

Conclusions

Since at least the beginning of the 21st century, there has been debate on the ECtHR’s extensive and dynamic interpretations of ECHR rights and the role of the Court more generally. Some take the view that stretching interpretative boundaries risks irritating Contracting States and jeopardizing their faith in the ECHR system, while others laud the importance of the ECHR system and the bulk of the ECtHR’s decisions as being of significant human rights value (see discussion, for example, here; here and here). The debate intensifies when the question of including social rights within the ECHR provisions comes into play, in which context the classical question on the relationship between supranational human rights courts and national legal systems also comes to the fore.

In this era of constitutional populism, the debate over the legitimacy of the ECHR system intensifies even further. There is ever-growing mistrust towards supranational institutions and particularly towards far-reaching interpretations of international human rights obligations and standards. Against this background, supranational human rights courts must pay particular attention to the legal reasoning in their judgments. In-depth, comprehensive and coherent legal reasoning is the means by which the ECtHR can maintain its judicial legitimacy: even if one does not agree with the ECtHR, on the basis of the strength of its legal argumentation and reasoning one can accept its decisions.

In the present case, the majority extended the scope of Article 8 in the field of social welfare rights. As regards the argumentation, the majority, first, opted for the ‘necessarily affect’ threshold created in Konstantin Markin v Russia (para. 72) but then suddenly applied it differently so that the threshold is actually different from the one applied in that case. Frankly, the criteria established by the Grand Chamber are quite flexible in the sense that it is hard to see what kind of social welfare benefit available to families could not be included within the scope of Article 8. The broad interpretation by the majority contradicts also its own argument which highlighted that an interpretation which includes all welfare benefits under Article 8 would be a too excessive approach (para. 67). The acceptability of the ECtHR’s judgments can be gained through rational legal argumentation under which the acceptability of judicial decisions derives from the quality of the legal reasoning carried out. In this sense, acceptability is gained, in essence, by taking competing sides of the case into account, by expressing the values behind these competing interests, and lastly, by balancing the conflicting values openly against each other. The legal reasoning in this case leaves much to be desired. For example, there are well-founded reasons why in the ECHR system sovereignty-friendly interpretative approaches must usually step aside. These reasons should be openly stated by the ECtHR. In addition, there is a complete silence as regards balancing the conflicting principles against each other. Consequently, only coherent, consistent, and open human rights argumentation leads to acceptability.

Above all, the case touches on sensitive questions relating to respect for the will of a sovereign state and the role of the ECtHR. It appears that traditional questions as to the role of the ECtHR and the balance to be struck between far-reaching interpretations of ECHR provisions and respect for the will of sovereign states are topical and relevant again. At the same time, it is important to be able to take one step backwards in respect of the debates over whether to include social rights within the ECHR provisions and concentrate instead on the legal argumentation, which should take both sides of the coin into account and deliver decisions that most can accept even if they do not agree with them. In this present case, the majority should have argued more openly as to how it had taken into account the counter-arguments in the case, particularly the will of the sovereign state and where the limits to the extensive interpretative approach taken in respect of the ECHR lie.

The post More human rights at the cost of the state sovereignty? Clarifying the scope of applicability of Article 8 ECHR to social welfare benefits in Beeler v Switzerland appeared first on Strasbourg Observers.

by Dr. Rebecca Smyth

In S.F.K. v. Russia and G.M. and Others v. The Republic of Moldova , the European Court of Human Rights (the Court/ECtHR) found both States responsible for violations of Article 3 of the European Convention on Human Rights (ECHR) due to the applicants being forced to have an abortion against their will or without their informed consent. These cases represent an interesting development in the Court’s jurisprudence on abortion specifically and sexual and reproductive health and rights (SRHRs) more broadly. In terms of promising developments, these judgments contribute to jurisprudence on the reproductive autonomy of disabled women and people who can become pregnant, and they recognise the severity of someone being forced to undergo reproductive healthcare procedures without their informed consent and/or against their express wishes. Regarding potential pitfalls, these judgments represent the ongoing unwillingness or inability of the Court to draw upon the full range of international human rights standards regarding abortion and SRHRs. These rulings may also indicate the influence of conservative and even reactionary influences on the Court’s approach to abortion. As such, these two recent cases merit closer analysis within the wider context of abortion rights in international human rights law.

Facts

In S.F.K. v. Russia, the applicant’s parents and two medical professionals forced her to have an abortion at around five weeks’ gestation. At no point did she receive any information, undergo medical examination, or sign any documents. Investigating officers undertook three separate pre-investigation inquiries but decided each time that there were insufficient grounds to open a criminal investigation, despite irregularities including there being no record of S.F.K.’s admission to hospital or the procedure. S.F.K. contacted the local prosecutor’s office, which called on the hospital’s Chief Medical Officer to undertake disciplinary measures against those responsible. No such action was taken. S.F.K. also lodged a complaint against the hospital with the District Court. Following appeal, the federal state’s Supreme Court ruled that the healthcare professionals had breached national healthcare legislation and regulations. It also ruled that the medical professionals had violated S.F.K.’s right to respect for her private life and had caused her psychological suffering. She was awarded 20,000 roubles (approx. €500) in non-pecuniary damages.

In G.M. and Others v. Moldova, three applicants with ‘intellectual disabilities of varying levels of severity’ — G.M, T.M., and M.P. — alleged that they had been forced to have abortions without their consent and had been fitted with intrauterine devices (IUDs) without their knowledge while institutionalised in the Bălți neuropsychiatric residential facility. G.M. and M.P. had become pregnant after the head doctor of one of the facility’s units, F.S., raped them. From 2014 to 2017, the three applicants and their representatives attempted unsuccessfully to instigate criminal proceedings. They filed multiple requests and appeals with the prosecutor, a superior prosecutor, the Court of Appeal, and an investigating judge. Throughout, the prosecutor maintained that there were no grounds for opening a criminal investigation because the first and second applicants’ abortions had been carried out in accordance with the law (which included mental impairment as an ‘illness in respect of which pregnancy is contraindicated’) and/or with their consent; there were no medical records indicating that the third applicant had ever been pregnant; and none of the applicants had been sterilised. The doctor F.S. was convicted of raping sixteen female residents of the facility in November 2015, including all three applicants. The final judgment cited two witness statements mentioning the third applicant’s pregnancy and referral to the maternity hospital for an abortion.

Judgment

S.F.K. v. Russia

S.F.K. claimed that she had been subjected to treatment falling within the scope of Article 3, and that her rights to privacy (Article 8) and to an effective remedy (Article 13) had also been violated (§58, §91, §96). The Court found that there were violations of both the substantive and procedural limb of Article 3 (§82, §90), and that it was therefore unnecessary to examine the complaints’ merits separately under Article 8 or 13 (§95, §99). Regarding the substantive limb, the Court noted that the state bore no responsibility for S.F.K.’s parents’ acts as private individuals, but that it did bear direct responsibility for inhuman and degrading treatment involving medical personnel at the public hospital (§80). It described the forced abortion and breach of medical rules as ‘an egregious form of inhuman and degrading treatment’ that resulted in both immediate and long-term negative physical and psychological effects (§81). Regarding the procedural limb, the Court ruled that Russia failed to discharge its duty to investigate ill-treatment by failing to open a criminal investigation, take effective measures against S.F.K.’s parents or the two healthcare professionals, or ensure any kind of punishment (§84-89).

In their partly dissenting opinion, Judges Roosma and Lobov disagreed with the majority that there was a violation of the State’s negative obligation under the substantive limb of Article 3. They disagreed with classifying medical professionals employed by a public hospital as Stage agents, and they claimed that the medical personnel’s actions were ‘very far removed from the performance of their regular professional duties’ and did not indicate ‘any acquiescence or connivance’ on the part of hospital management or the public authorities (§7).

G.M. and Others v. Moldova

While the applicants relied on Article 8 to bring their claim, the Court decided that their complaints should be examined under Article 3 (§67-8). Regarding all three applicants, it found Moldova responsible for violating the procedural limb of Article 3 because the State failed to (a) include measures for obtaining intellectually disabled persons’ valid, free, and prior consent for medical interventions; (b) adopt adequate criminal legislation regarding non-consensual medical interventions on intellectually disabled people in general and women in particular; and (c) implement other mechanisms to prevent such abuse (§128). For carrying out abortions without the applicants’ consent, the Court found Moldova responsible for violations of the substantive limb of Article 3, specifically the positive obligation to protect the applicants’ physical integrity (§134, §141). For inserting an IUD without the first applicant’s knowledge or consent, the Court again found Moldova responsible for violating its positive obligation to protect her physical integrity under the substantive limb of Article 3 (§147). In the absence of clear evidence, the Court could not draw a similar conclusion regarding the second and third applicants, and so it did not find a violation (§150).

Analysis

Both judgments make some welcome contributions to the Court’s SRHRs jurisprudence. They represent the first time that the Court has ruled on forced abortion. By considering violations of reproductive autonomy under Article 3 rather than Article 8 (as has more often been the case with the Court’s reproductive rights jurisprudence), the Court is emphasising just how harmful interfering with reproductive autonomy can be. The Court also makes effective use of some UN standards in G.M. and Others to illustrate the severe and systemic nature of the issues highlighted by the facts of the case. Among others, it refers to CEDAW General Recommendation No. 35 that describes forced abortion and sterilisation as forms of gender-based violence that may amount to torture or cruel, inhuman or degrading treatment (§45, 46), and the CRPD’s 2017 Concluding Observations on Moldova that expressed concern with the widespread nature of ‘forced contraceptive measures, forced abortion…and sexual abuse, including by medical staff’ in institutions (§52).

Throughout its assessment of the merits, the Court emphasises the severity of the allegations due to ‘the applicants’ vulnerability — resulting from such elements as their gender, disability and institutionalisation’ (§89), and the ‘structural’ and ‘systemic’ nature of the violations of Article 3 (§90, §110). Notwithstanding the need for the Court to adopt a nuanced approach to vulnerability that avoids essentialising applicants, such an approach is largely in keeping with a gender-sensitive and disability rights approach to adjudication. So too are the Court’s framing of the case in terms of the ‘systemic denial of agency to institutionalised women with intellectual disabilities concerning their reproductive rights’ (§90) and its criticism of the ‘paternalistic tone’ of the 1994 ministerial order that indicated intellectual disability as a contraindication for pregnancy without any further assessment of medical risks (§123).

However, both judgments are also characterised by certain oversights and potentially concerning influences. There is no reference in either judgment to the 2018 joint CRPD/CEDAW statement Guaranteeing sexual and reproductive health and rights for all women, in particular women with disabilities which states that ‘gender equality and disability rights are mutually reinforcing concepts’, and that ‘women should neither be stigmatized for voluntarily undergoing abortion nor forced to undergo an abortion or sterilization against their will or without their informed consent.’ Referring to this statement would have enabled the Court to recognise that forced abortion and criminalising abortion are interrelated and equally harmful.

In S.F.K., there is no engagement with or reference to any international human rights standards, including those on abortion or forced abortion, even though many had already been developed by 2010 when the facts of the case occurred.[1] There is also no reference in either judgment to UN Committee on Economic, Social and Cultural Rights General Comment No. 22 on the right to sexual and reproductive health, nor to relevant thematic reports by the UN Special Rapporteur on the right to health including the thematic reports on the right to sexual and reproductive health, informed consent, and legal restrictions on sexual and reproductive health. This perhaps reflects the Court’s reticence to engage with economic, social, and cultural rights which are not explicitly included in the ECHR.

The ongoing dichotomy between civil and political rights on the one hand and economic and social rights on the other in the European human rights system, with the former being accorded higher priority than the latter, represents a considerable conceptual and structural impediment to the universality, indivisibility, and interdependence of human rights. This dichotomy has specific implications for historically oppressed and marginalised groups including women and people who can become pregnant, and disabled people. This dichotomy has long been critiqued by feminist legal scholars as failing to identify the specific spheres and manifestations of gendered human rights violations; failing to accord them the same importance as other forms of human rights violations; and forcing oppressed groups to twist their experiences to fit into an existing framework that cannot represent or respond to their lived realities. While the Court is making progress in taking a more gender-sensitive approach to legal reasoning, including in these two cases, the overarching structure of the European human rights system is not as conducive to progress as that of the other human rights systems.

In both S.F.K. and G.M and Others, the Court missed an opportunity to develop its Article 3 jurisprudence from a gender-sensitive and disability rights-sensitive perspective. The UN Committee Against Torture (UNCAT) and UN Special Rapporteur on torture (UN SR on torture) have dedicated increasing attention to torture and ill-treatment in healthcare settings and from a gendered and disability rights perspective since the mid-1990s. Although the Court did engage with some UN human rights standards in G.M and Others, it did not engage with any of those developed by UNCAT or UN SR torture.

The most concerning aspect of the reasoning in both judgments is the potential influence of anti-choice rhetoric and lobby groups. In S.F.K., the Court rightly noted that the forced abortion was ‘an egregious form’ of inhuman and degrading treatment, but it referred to ‘the loss of her unborn child’ as one of the main reasons for it being so egregious (§81). In conversation, people often refer to their pregnancy as their baby or their child, including people who have abortions. This is absolutely valid, and it is sensitively explored in this article by Jeannie Ludlow. However, it would be more appropriate for the Court to use correct medical terminology or refrain from potentially emotive and inaccurate language when discussing abortion in its judgments. The awfulness of forcing someone to end a wanted pregnancy can be acknowledged without using terms that can contribute to misconceptions about pregnancy and abortion, even unintentionally.

More concerning than this probably unconscious oversight are two of the three the third-party interventions in G.M. and Others. The European Centre for Law and Justice (ECLJ) and Ordo Iuris both provided third-party interventions. These two organisations, which are affiliated with each other, are highly conservative lobby groups that oppose abortion access and LGBTQ+ rights. Ordo Iuris describes itself as concerned with countering ‘radical ideologies that aggressively question the social order’ and ‘seek to destroy its very foundation.’ It has been actively involved in efforts to restrict abortion access, undermine LGBTQ+ people’s rights, and impede the introduction of comprehensive sexuality education in Poland. It is hard to believe that Ordo Iuris is sincerely concerned with disabled women’s reproductive autonomy when one of its bioethics centre members said that women planning to have abortions should be forcibly placed in mental health units. While these organisations are of course legally entitled to submit third party interventions, the Court should exercise circumspection in how much space and attention it affords to submissions by organisations with a clear track record of undermining the human rights and equality of minority groups.

Fortunately, it would seem that the Court drew more on the intervention by Validity — a Hungarian and UK-based disability rights NGO — than those by ECLJ and Ordo Iuris. In their intervention, Validity ‘emphasised the systemic dimension of forced abortions and sterilisations performed on women with intellectual or psychosocial disabilities’ and how they are ‘a form of structural gender-based and disability-based discrimination’ (G.M. and Others, §81). As mentioned above, the Court used similar language when it referred to the ‘systemic denial of agency to institutionalised women with intellectual disabilities concerning their reproductive rights’ (§90). Referring to the international human rights standards discussed above concerning abortion and SRHRs would have enabled the Court to develop this approach even further, and to contribute to a more coherent and assertive approach to reproductive autonomy in international human rights law.

Conclusion

S.F.K. and G.M. and Others represent a milestone in the Court’s SRHR jurisprudence. The judgments make some positive contributions to the growing body of international standards and case-law in this area, including recognising the severity of forced abortion, and an increasingly gender-sensitive and disability rights-sensitive approach to adjudication. However, these rulings also speak to the ongoing contradictions, tensions, and contestations surrounding SRHRs in international human rights law. Why is it that certain practices, such as forced abortion, are easier for the Court to recognise as human rights violations than others, such as criminalising abortion? To what extent can and should the Court engage with UN and regional human rights standards on SRHRs to ensure a coherent, gender-sensitive, and disability rights-sensitive approach? In what ways are different interests and their representatives shaping the Court’s approach to politicised issues?  Academics, activists, and advocates should continue to explore these questions as the Court develops its SRHR jurisprudence.

[1] See Annexes 1, 2, 3 in Rebecca Smyth, Contesting Citizenship: An intersectional feminist approach to abortion in international human rights law, with a focus on El Salvador and Ireland (unpublished doctoral thesis, available at https://era.ed.ac.uk/bitstream/handle/1842/37922/SmythR_2021.pdf?sequence=1&isAllowed=y)

The post <strong><em>S.F.K. v. Russia </em>and <em>G.M. and Others v. Moldova</em>: the promise and pitfalls of ECtHR forced abortion jurisprudence</strong> appeared first on Strasbourg Observers.

By Charly Derave and Hania Ouhnaoui

On 19 May 2022, the European Court of Human Rights communicated its admissibility decision in the case of M. v. France, which deals with “normalising” medical treatments of intersex persons (i.e. those who are born with sex characteristics that do not fit the typical definition of the female and male sex). We make comments on this decision as a follow-up to a blogpost published here a year and a half ago which elaborated on the third-party intervention the Equality Law Clinic (ULB) had submitted together with the Human Rights Centre (UGhent).

Facts of the case and the ECtHR’s decision

The applicant, M., is born in 1977. They[1] claim that between 1978 and 1993 they underwent five surgical operations and medical treatments. These were intended to make their sex characteristics “female”, even though their intersex “condition” did not put their health at risk.

The applicant argues that they had never been informed of the purpose of these treatments, nor of their intersex “condition”. They became aware of it at the age of 23 when they accidentally intercepted a letter in 2000. They only understood the meaning of it in 2014. According to their clinical psychologist, these treatments have caused them serious psychological and psychiatric harm. As a result of the feminising medical program imposed on them without their informed consent, M. has been recognised as a disabled worker and now lives on the disability benefits they receive and faces major socio-economic issues.

On 22 November 2015, the applicant lodged a criminal complaint, inter alia for violences materialised by several non-consensual treatments and surgeries resulting in both physical and moral damage. On 22 April 2016, the national judge rejected their claim because it was time-barred. The decision was upheld on appeal, as well as by the Court of Cassation in a judgment of 6 March 2018.

The applicant claimed before the Court of Cassation that the decision amounted to a violation of Article 6 of the European Convention on Human Rights. According to them, they had not been properly informed by the doctors treating them. They argued that this resulted in an “insurmountable obstacle to prosecution” until the 2000 letter was intercepted. Hence the limitation period should have been suspended and did not start to run until then. The Court of Cassation judged the claimant was, at their age of majority and after within the statute of limitation, perfectly aware of both the reality and the aim of the treatments they had undergone.

Before the ECtHR, the applicant argues that France has failed, on the one hand, to fulfil its positive obligation under Article 3 to take effective measures to protect vulnerable intersex individuals, such as intersex children, from ill-treatments perpetrated by other individuals and, on the other hand, to make an effective official investigation of the case’s facts. They also claim the refusal to investigate their case has amounted to a breach of their right to access to courts under Article 6.

In its decision, the Court unanimously declares the application inadmissible. It states the applicant did not previously raise Article 3 in their complaint, even in substance, before the Court of Cassation. As a result, national jurisdictions were not able to solve the alleged breach of Article 3 by themselves. Drawing from the principle of subsidiarity (which is now enacted in the Preamble of the Convention), the Court therefore decides the applicant did not exhaust all the domestic remedies available pursuant to Article 35 (§59; §§68-74). Under Article 6, the Court also holds that the application was manifestly ill-founded: despite the national jurisdictions’ decision not to proceed with a criminal investigation, the applicant could still file a claim for civil damages. There was consequently no deprivation of access to courts (§§78-85).

Comment

This case was the first opportunity for the Court to rule on “normalising” medical treatments of intersex persons. This “fresh field” partly explains why in our third-party intervention we prompted the Court to ground its reasoning in existing legal developments, i.e. the growing international and European human rights trend to prohibit these treatments and to qualify them as discriminatory ill-treatments against intersex people.

The Court chooses not to follow the points we made. By declaring the application inadmissible, it fails to send the States a strong and unequivocal signal requesting them to explicitly prohibit the impugned medical “normalisation” proceedings or take effective measures to protect vulnerable intersex individuals’ bodily integrity. Yet, it has done so, although in totally different context, for trans people’s rights (e.g. Y.Y. v. Turkey and A.P., Garçon and Nicot v. France).

We tackle the Court’s decision under four axes: qualification of ill-treatments (I.), right to access to courts (II.), prohibition of discrimination (III.) and children’s rights (IV.). We highlight some of its pitfalls and point at a few elements that deserve further consideration by the Court and other jurisdictions at large.

• Qualification of ill-treatments – Article 3

Even though the Court sets aside the argument made by the applicant (and other third-party interveners) under Article 3 for admissibility reasons, it leaves the door ajar as to whether the “normalising” medical treatments fall under the scope of this article (§63).

Starting with a bold and meaningful statement (§59: “Considering the nature of the issues at stake in the present case”; our emphasis), the Courts recalls some fundamental principles relating to this provision and states that a medical procedure carried out in the absence of any therapeutic necessity and without the free and informed consent of the patient could be qualified as ill-treatment (§61). It adds that sterilisation performed without satisfying these conditions is in principle incompatible with freedom and human dignity, which are two core values protected under the Convention, and therefore amounts to ill-treatment (see V.C. v. Slovakia, §§119-120, N.B V. Slovakia, §§80-81 and I.G. and others v. Slovakia, §§123-126). It further declares that this is the case, for example, of genital mutilations including those performed on a child (§62; see on this matter Izevbekhai v. Ireland, §73 and Sow v. Belgium, §§62-64).

We believe there is an implicit, albeit undisputable, statement given to the States. The Court seems to say it is ready to further scrutinise the medical practices at stake once the issue is brought again to Strasbourg in the future (insofar the case is declared admissible). This view is supported by the many international and European human rights actors’ decisions, reports and papers condemning these practices to which the Court explicitly refers in its decision (see §§39-48), but also by the logic of the reasoning: it is worth noticing that the Court deals with some of the substantial aspects of Article 3 (§§59-63) before treating those that are closely linked to the admissibility (§§68-74), leading to a significant prioritisation of arguments.

• Right to access to courts – Article 6 §1

Behind what looks like an excess of formalism, the Court alleges that the key question raised by the applicant is whether the refusal to proceed with criminal investigations on the grounds that the statutes of limitation expired on the day of their majority amounts to a violation of their right to access to courts (§80). The Court declares there would be no breach of this right if the applicant had another “accessible and effective remedy to assert her [sic] civil right to compensation” (§81). Applying this principle to facts of the case, the Court holds that they effectively had a “reasonable opportunity to bring a civil claim” (§72; §82; our emphasis). According to the decision, this is because a lawsuit could be brought before either a civil judge or administrative courts (if the defendant is the hospital) (§83). Three observations can be drawn from this.

Firstly, one could regret the Court’s reasoning does not examine the requirements and effects of a civil claim in comparison with those of a criminal one. Nor does it address the issue of the limitation period raised before the domestic judges in spite of the now long-lasting demand made by intersex associations to extend the length of the statutes of limitation.

Secondly, the Court does not elaborate on the “reasonableness standard” it refers to. Does it include the psychological burden of introducing another claim to another judge, particularly when the claimant is seriously depressed and mentally distressed, such as M., because of their physical sufferings and abuses? Whatever the answer might be, the benchmark set out by the Court seems too vague and unclear, and therefore low. Clues and indications should be given to avoid a sense of arbitrariness.

Lastly, by focusing on procedural arguments, the Court gives the impression to turn a blind eye to the very essence of the case which is about medical treatments that deeply affects intersex people’s human dignity. Before the national jurisdictions, the issue of the statutes of limitation was raised due to an argument (logically) made by the French public prosecutor. The judicial debate was diverted when it had been raised before the court of appeal and the Court of Cassation, but it did not mean the applicant had given up their claim substantially (see B. Moron-Puech, 19 May 2022). Impugned medical practices were the reason why the applicant complained under criminal law in the first place. If one considers the national judicial proceedings as a whole, both the questions of the alleged offences and the statutes of limitation were inextricably linked. Unfortunately, this is disregarded by the Court.

• Prohibition of discrimination – Article 14

Although “normalising” medical treatments are imposed on intersex persons’ bodies because of their “atypical” sex characteristics, the Court makes no reference in its decision to the principle of non-discrimination guaranteed by Article 14. This is due to the content of the application: there was no allegation made under this provision.

In our third-party intervention nevertheless, we encouraged the Court to rule on the case from the perspective of this principle. Indeed, intersex persons are treated differently from dyadic persons (i.e. persons whose sex characteristics fully fit the [medical] sex definition) because they undergo “normalising” medical treatments, despite the fact that the “variations” in their sex characteristics are the result of a natural and biological process, for which there is absolutely no reason to medically intervene (except in situations of medical emergency).

According to us, this difference in treatment is based on “sex characteristics”. Since Article 14 explicitly forbids discrimination on the basis of sex, and “sex characteristics” are part of the definition of “sex”, differences in treatment on the basis of sex characteristics are implicitly covered by said Article. We however pointed out that the Court could decide for various reasons to extend the list of grounds of discrimination – which is indicative and not exhaustive (Engel and Others v. the Netherlands, §72) – to include “sex characteristics”, as it did for sexual orientation in 1999 (Salgueiro Da Silva Mouta v. Portugal, §28) and for gender identity in 2015 (Identoba and Others v. Georgia, §96).

As for the margin of appreciation of the State, we thought the Court should restrict it under the label of vulnerability because intersex persons are a minority group, in most of the cases minors (see below) and subject to scathing stereotypes.

Considering the Court does not say a word in its decision about Article 14, it is difficult to predict whether the impugned medical practices we see as structural forms of discrimination will be considered as such by the Strasbourg judges in (a) potential future litigation(s). We cannot but encourage the Court to go down this path.

• Protection of children’s rights

Because the Court does not enter into the details of the case in its substance, it is not very sensitive to the fact that the applicant was under the age of 18 – therefore minor – at the time of some irreversible medical interventions. The Court only refers to children’s specific protection under law when it states that genital mutilation practiced on a minor is in principle incompatible with the Article 3 (see above).

As we explained in our third-party intervention, medical treatments have been, in most of the cases, imposed on the bodies of intersex children or teenagers who, according to the Court’s case-law, enjoy specific protection because of their age and vulnerability (Söderman v. Sweden, §81). Since the mid-20^th century, such treatments have been carried out in disregard of the child’s opinion or consent. International legal standards, such as the United Nations Convention on the Rights of the Child (A. v. United-Kingdom, §22; A.B. and others v. France, §150), have (in many instances, deliberately and repeatedly) been ignored. Yet, intersex minors can claim protection under different provisions of that Convention, such as the right to freely express their own views in all matters affecting them (Article 12), the right to privacy and family life (Article 16), the right to be protected from all forms of physical and mental violence (Article 19), the right to enjoy the highest attainable standard of health (Article 24), the prohibition of ill-treatments (Article 37), etc. At the heart of the UN Convention is the core principle according to which the best interests of the child shall be a primary consideration (Article 3). As stated by the UN Committee on the Rights of the Child, it undisputedly applies to intersex children (see the Concluding observations on the States’ periodic reports listed in the resources of OII-Europe). In the future, the Court may (and should) turn to its earlier case law that actually does rely on the UN Convention and other related principles (e.g. Youssef v. The Netherlands, §73) to set up a powerful benchmark to protect intersex children’s liberty and dignity in the Council of Europe.

Conclusion

Although it was demonstrated the Court has in its toolbox all it needs to protect the bodily integrity of intersex people, who have gained visibility throughout the years in society and in the media, the Court defers the issue by rejecting the application on admissibility (and procedural) grounds.

On a positive note, however, the Court does not dispute the very existence of intersex people and what they have gone through surgically and hormonally. The decision to reject the application on admissibility grounds should not conceal or diminish key elements that are outstanding from a legal, but also social, standpoint. The Court makes intersex people “apparent”, meaning that from now on they deserve serious consideration. This is also the first time that a supranational jurisdiction suggests that the principles arising from the prohibition of ill-treatments could be applicable to intersex individuals’ medical treatments, therefore paving the way for effective prohibition and/or protective measures at the domestic level.

One explanation for the Court’s deferral through the period of limitation argument is that, before going further, it might be willing to give States time to review their legislative statutes and reconsider their medical protocols. It appears this “politico-diplomatic soft strategy” is working – at least in France. Even before the Court’s decision, the French legislative authorities had already revised their Public Health Code by adopting the Bioethics Act in August 2021. Even though it does not prohibit medical interventions on intersex bodies, it now regulates intersex children’s medical care (Article L. 2131-6). The Code had to be completed by a governmental decree “setting out the rules of good practice for care” (Article L. 1110-5).  On 15 November 2022, such a decree was issued. In alignment with the high standards established by intersex associations, the decree states that “the sole purpose of conforming the child’s atypical genital organs to representations of the feminine and masculine does not constitute a medical necessity. It is appropriate to wait in this case until the minor is capable of participating in the decision” (Annex, II-3, Aims). If this makes theoretically victory for intersex persons’ bodily integrity and human dignity in France, it obviously remains to be seen how the decree will be implemented by medical practitioners on the ground.

[1] Because the applicant’s gender identity is “fluctuant”, this blogpost will use gender neutral language and the gender-neutral pronouns “they/them” to refer to the applicant.  

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By Marie-Hélène Peter-Spiess[1]

In its recent judgment A.L. v. France, the European Court of Human Rights (the “ECtHR” or the “Court”) looked into the issue of domestic surrogacy and legal fatherhood in a situation where two paternal figures are on the line. More specifically, the case featured a surrogacy-born child that the surrogate entrusted to third parties, one of whom was legally recognised as the child’s father. The Court had to examine whether, after several years of litigation during which the child lived with his social parents, the French courts’ refusal to legally establish the paternity of the genetic father amounted to a violation of his right to respect for his private life. While such refusal was considered justified by the Court, the latter found a violation of the genetic father’s right to respect for his private life due to lengthy proceedings. The years of litigation had indeed resulted in the child’s best interests being served by not separating him from his social parents. In this post, I argue that the present judgement, which combines (domestic) surrogacy and the contesting of an established legal fatherhood, stands in contrast with the ECtHR dominant transnational surrogacy case-law on the role of genetics in filiation. In the presence of competing fatherly figures, the ECtHR ruled on the basis of an already accomplished fact, despite condemning such an approach. Finally, while the fact that social parenthood is given weight can be welcomed, some questions on the Court’s reasoning remain.

Facts

A male same-sex couple in civil partnership entered into a domestic surrogacy agreement in France. The surrogate became pregnant with the sperm of one of the partners, the applicant. Yet, upon birth, instead of handing over the surrogacy-born child to the intended parents, the surrogate entrusted the child to another – opposite-sex and married – couple in exchange for a price. One of the partners of this couple was subsequently recognised as the child’s legal father, to the detriment of the same-sex couple.

The applicant contested the legally recognised father’s paternity before domestic courts, requiring his own paternity to be established. Four years later, the court of first instance declared the applicant to be the child’s father and granted him exclusive parental authority, relying on a biological analysis evidencing his genetic paternity. A gradual transfer of residence was organised for the child. However, upon appeal by the social father, the Court of Appeal dismissed the applicant’s paternity request due to its being based on an illegal surrogacy agreement. In addition, the Court of Appeal deemed that the genetic link between the applicant and the child did not carry enough weight since the best interests of the child would not necessarily speak in favour of a change in filiation. More precisely, according to a psychiatrist who had examined the child at the request of the couple taking care of him, a change in residence – even gradual – might cause the child major difficulties. This was confirmed by the person representing the child in the proceedings.

The applicant filed an appeal with the French Court of Cassation, which was however dismissed. At that time, more than six years had passed since the initiation of proceedings. The genetic father therefore lodged an application before the ECtHR, arguing that the dismissal of his paternity claim constituted a disproportionate interference with his right to respect for his private life guaranteed by Article 8 of the European Convention on Human Rights (the “ECHR”) (§34).

Judgment

In its judgment, the Court noted that the decision as to whether the genetic father should be allowed to contest a legally established paternity link to his child falls within the margin of appreciation of the States concerned. The Court added that the margin of appreciation is especially important when it comes to balancing competing fundamental rights of two individuals (§51). Yet the choices made by States are not beyond the ECtHR’s control. The Court must indeed consider whether a fair balance was struck between the interests involved. In doing so, it must have regard to the best interests of the child, which must always prevail (§52). As part of its review, the ECtHR must also ascertain whether the decision-making process afforded the applicant the necessary protection of his interests, particularly regarding the duration of the proceedings. Where one’s parental relationship is at stake, a duty of exceptional diligence arises since the passage of time might result in the matter being decided in virtue of a fait accompli (accomplished fact), i.e. the child having lived such a long time with the social parents that a separation would be harmful. (§54)

In this case, the ECtHR found that French courts had duly prioritised the best interests of the child. The Court looked into the balance struck between the applicant’s right to respect for his private life and his genetic son’s right to respect for his private and family life, requiring that the child’s best interests be prioritised. The ECtHR further noted that while biological reality undoubtedly carries weight in cases such as the present one, it is outweighed by the best interests of the child where the two do not coincide (§61). However, the Court approved the domestic courts’ view that the child might have an interest to learn the truth about his origins and to consider possible contacts with the applicant “when the time comes” (§64). Considering the above, the Court deemed the reasons given by domestic courts to justify the interference in the applicant’s rights as relevant and sufficient (Art. 8 § 2 ECHR) (§65).

The Court further noted that the domestic proceedings had lasted more than six years, which was incompatible with the duty of exceptional diligence required on the part of the respondent State. The child was four months old when the legal proceedings started, and six-and-a-half years old when these ended. Moreover, the Court of Appeal had taken into account in order to reach its conclusion that the relationship between the social parents and the child was already an accomplished fact (§70). The ECtHR therefore held that the applicant’s right to respect for his private life (Art. 8 ECHR) had been violated (§73). Yet the Court stressed that this finding of an ECHR violation could not be interpreted as calling into question the assessment by the previous instances of the child’s best interests and the dismissal of the applicant’s request.

Commentary

The present judgement is of substantial interest for a variety of reasons.

First, the facts of this case differ from most surrogacy cases decided by the ECtHR. For a change, the case does not feature cross-border, but domestic surrogacy, the latter even leading to criminal convictions. Moreover, the applicant does not only struggle against authorities to get his filial link recognised, but also against another couple and the surrogate. As a result, the case involves two competing paternal figures. Finally, the judgement does not concern gestational, but traditional surrogacy, i.e. where the egg of the surrogate herself was fertilised.

Second, in contrast to the dominant ECtHR case-law on cross-border surrogacy, the present judgment departs from a certain supremacy of genetics in determining parenthood, and especially fatherhood. In a conflict involving two fathers, de facto family ties can indeed carry more weight if these are aligned with the child’s best interests. In its previous jurisprudence on transnational surrogacy, the ECtHR has tended to favour fathers who were genetically linked to surrogacy-born children. In fact, such fathers were repeatedly granted immediate legal recognition despite having resorted to surrogacy abroad, at least when the child’s right to respect for private life was concerned (see Mennesson v. France, Labassee v. France, Foulon and Bouvet v. France). In the famous Mennesson judgment particularly, the importance of biological parentage was seen as a “component of identity”, and its non-recognition was deemed contrary to the child’s best interests. Conversely, intended social fathers with no genetic connection to the child could be refused legal recognition (see Paradiso and Campanelli v. Italy). As Mélanie Levy rightfully pointed out, the ECtHR therefore seems to be stuck in a certain form of “genetic essentialism” in its case-law on the recognition of filiation following cross-border surrogacy, especially when fathers are concerned.[2] However, when it comes to paternity proceedings that do not involve surrogacy, such a tendency cannot be observed. According to Alice Margaria, who notes a clear relevance of biology in the Court’s case-law on surrogacy-created fatherhood, the role of genetics when two paternal figures are competing is less straightforward. The claim of the “more caring” father seems to often prevail over that of the genetic one, as for instance in cases like Ahrens v. Germany. In the latter, to which the ECtHR refers in the present judgment, a genetic father was precluded from contesting the paternity of the social father who was living with the legal mother. Yet the Court held in another paternity case that biological filiation took precedence over social filiation (Mandet v. France). In this case, to which the present judgment also points, the Court deemed that the child’s best interests do not necessarily lie where the child perceives them (i.e. in maintaining the established filiation and preserving emotional stability), but rather in establishing his “real” (i.e. genetic) paternity.

Pursuant to the ECtHR, the child’s best interests – residing in staying with his social parents – were duly considered by the French courts, which also took the “biological truth” into account. Accordingly, certain boundaries to DNA reality are being set when these cannot be reconciled with the best interests of the child. This results in more importance being given to the caring father, despite the presence of a genetic one. A certain contrast to the “genetic essentialism” prevailing in the transnational surrogacy case-law can thus be observed. In this respect, the present judgment further illustrates Margaria’s assertions that, in the presence of two rivalling fathers, care can play a greater role than genetics, especially when – as in the present case – such care is provided in a marital context. In other words, the genetics criterion in determining legal fatherhood carries different weight depending on the circumstances.

While the fact that de facto family ties are given weight can be welcomed, some questions on the rationale remain. In particular, one may question whether the reasons provided by French courts to justify the interference at stake are really “relevant and sufficient” for the purposes of Art. 8 § 2 ECHR. The ECtHR’s corresponding reasoning is essentially based on the necessity to accommodate the best interests of the child. However, the reason for which such interests would lie in staying with his social parents is the passage of time. The child indeed had no connection with these individuals other than having been in their care. Had the case been decided earlier, the best interests of the child might have been just as well served by living with his genetic father.

In line with the above, one could also wonder why alternative solutions were not considered. These include, among others, letting the genetic father recognise his son but have the latter grow up with his social parents, or at least providing visiting rights to the genetic father. This would have been particularly important for the following reasons. First, the considerations provided in the domestic proceedings – that the best interests of the child required him to remain with his current social family – do not seem to be based on independently made reports. Rather, the Court of Appeal refers to the report of a psychiatrist who had been hired by the child’s social parents. Even though the child’s representative was of the same view, one could call the report into question. While courts cannot supplant the expertise of a professional, further examination by independent experts could have been asked for. This would have guaranteed an objective assessment of the situation. Second, the ECtHR mostly bases its review of the domestic courts’ dismissal of the claim on the assessment of the child’s best interests. Yet, by doing so, the Court largely ignores the fact that the primary argument of the national courts for such dismissal lied in the illegal recourse to surrogacy. It seems illogical that the domestic courts would put so much emphasis on it, since the social parenthood they support also stemmed from illegal behaviour. The French courts then mentioned that the biological truth did not appear to be a sufficient reason to admit the claim (§§ 21, 25), and that the child’s best interests would not necessarily (§§ 21, 58), respectively do not (§25) lie in having his current filiation modified. Despite that wording, the Court took the assessment of the child’s best interests by the domestic courts for duly justified.

Another interesting aspect of the present judgment is that the ECtHR ruled based on a fait accompli, despite condemning such approach. The fact that a violation of the applicant’s rights was found due to the lengthy procedure can be welcomed. Yet, it does not change the fact that the Court still seems to have conveniently relied on the fact that the child’s parentage was a fait accompli. By doing so, the Court could indeed avoid interfering in the consequences of domestic surrogacy where traditional family values were at stake. In this case, the factual reality of a traditional nuclear family (with an opposite-sex married couple as parents) was indeed opposing a non-traditional one (with a male same-sex couple in civil partnership as parents). As a result, a social father with no genetic connection to the child whatsoever got to keep his parental status due to the passing of time, despite having “purchased” the child, leaving the genetic father behind. In line with Margaria’s observations that the Court shows persistent attachment to certain fatherhood features, is the Court hanging on to traditional nuclear family settings? This appears to be especially relevant in a domestic context. Finally, another question remains: would the outcome have been different if the legal recognition of the parent-child relationship had been ruled on with regard to the child’s right to respect for his private life?

Concluding Remarks

In addition to raising important child welfare issues, the present judgment leads to a fundamental questioning on which elements should prevail in the establishment of legal parenthood, especially fatherhood. While genetics is the ECtHR’s long favoured criterion for attributing legal fatherhood following cross-border surrogacy, the situation differs in case of domestic surrogacy. The Court indeed places a large importance on care when two paternal figures are competing, as noted by Margaria in the context of paternity proceeding cases. The best interests of the child – which in this particular case reside in staying with his social parents – must always prevail, even when it means securing the legal parenthood of a social father with no genetic connection to the child. This appears to be especially relevant in the context of domestic surrogacy, where the Court refrains even more from interfering. Finally, as the Court seems to grant varying weight to genetic parentage depending on the circumstances, the following question arises: how much importance does the Court attach to traditional family values? It remains to be seen which tendencies will be confirmed in future judgments on the topic.

[1] This work was supported by the University Research Priority Program “Human Reproduction Reloaded” of the University of Zurich. The author would like to thank Dr Elena Brodeala and Dr Alice Margaria for their useful comments, Prof. Sarah Franklin and Dr Edmée Ballif for a fruitful discussion on some of the ideas developed in this post, and Sarah Schoentjes for editing this post.

[2] Moreover, even if the Court is moving towards better legal recognition of social fathers, the latter cannot benefit from the same immediate recognition as genetic fathers. Rather, a social father whose partner – the genetic father – has been recognised under domestic law can be entitled to recognition via “other means” such as adoption. See the recent judgment D.B. and Others v. Switzerland, which features a male same-sex couple and which was rendered a few months after the present one.

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Merel Vrancken

In the recent case of Elmazova and Others v. North Macedonia, the European Court of Human Rights (ECtHR or the Court) received another opportunity to speak out against (Roma) segregation in education. It rose wonderfully to the occasion. In a unanimous and well-reasoned judgment, the Court condemns the existing segregation and clarifies that States have a positive obligation to implement desegregation measures that will ‘ensure the end of the segregation’ (§ 89).

In the past, commentators have compared the ECtHR case law on Roma segregation to that of the United States Supreme Court on racial segregation in education, having its origin in the seminal judgment of Brown v. Board of Education. Brown marked the beginning of an important shift in the US legal landscape and an incredible move towards desegregation. It has been argued that the ECtHR, in delivering its judgment in D.H. and Others v. the Czech Republic, was at a Brown v. Board of Education moment. However, the Court’s case law has never really risen up to the challenge of combatting segregation. Similarly, where the US Supreme Court’s judgments provided a very promising start, with later rulings the Supreme Court has undermined much of the realised progression by increasingly limiting avenues for desegregation. I argue that, with its most recent judgments on Roma segregation in education, the Court is surpassing Brown’s achievements and proving that it can take a clear stance in condemning segregation and requiring desegregation.

Facts

The case of Elmazova concerns the segregation of Roma pupils in two primary schools, G.S. and G.D. In the first school, G.S, 83.5% of pupils were Roma. In another school in the same catchment area, T.A., 95.1% of pupils were ethnic Macedonians. In the preceding few years, 58 requests for transfers to T.A. had been made – of which three were submitted by Roma – which had all been granted. In assessing the complaint of segregation made before it, the majority of the Constitutional Court held that, although the children attended two ethnically divided schools, the statistical information regarding the ethnic composition of classes in both schools was insufficient to establish segregation. The Court was not competent to assess the overall social context and the applicants had not presented any facts or evidence to support their alleged inability to enrol in T.A.

In the second school, G.D., 64-67% of all first-grade pupils were Roma. Of the three first-grade classes, two were mixed and one was Roma-only. The Constitutional Court established that two contextual factors contributed to the high presence of Roma pupils in the school: on the one hand, a large Roma community resided in G.D.’s catchment area, and on the other, many pupils of Macedonian ethnic origin enrolled in out-of-catchment-area schools. This situation prevented G.D. from ensuring a balanced placement of pupils in terms of their ethnicity, sex and social status. The school did try to take measures to ensure this balance, such as attempting to convince majority parents to enrol their children or asking the municipality for stricter implementation of decisions regarding school catchment areas, but this was to no avail. The Constitutional Court concluded that ‘there was no evidence that Roma pupils in the “segregated” classes had been treated differently in comparison with pupils in the mixed classes, namely that they had obtained an inferior education’ (§ 13).

After the date of application to the ECtHR, in both cases, the European Roma Rights Centre lodged a complaint of segregation before the Commission for Prevention and Protection against Discrimination. In both cases, the Commission issued an opinion condemning the ethnic segregation as indirect discrimination and pointing to the fact that this was a systemic problem in the educational process.

Judgment

After reiterating the general principles applicable to cases of Roma segregation, the ECtHR begins by establishing that both schools offered a programme that was the same as, or at least similar to, that of other public primary schools (contrary to the situations in the earlier cases of D.H. and Others v. the Czech Republic (GC), Sampanis and Others v. Greece, Oršuš and Others v. Croatia (GC),Sampani and Others v. Greece and Horváth and Kiss v. Hungary).

Concerning G.S., the Court observed that this school was predominantly attended by Roma children (83.5%), while T.A. was almost exclusively attended by ethnic Macedonians (95.1%). It highlighted that there was a large disproportion between Roma and non-Roma placements in G.S. It moreover accepted that the main reason for this was the manner in which the regulatory framework on the admission and transfer of pupils was applied in practice, owing to the opposition of non-Roma parents to enrolling their children in G.S. (§ 72). Refuting the government’s arguments, the Court held that the residential ethnic composition of the catchment area could not, in the circumstances, be sufficient to objectively justify the segregation of Roma in G.S., as the ethnic composition of T.A. (located 600 metres from G.S.) was totally different (§ 73). Contrary to the Constitutional Court’s findings, the Court did not consider that the applicants’ failure to seek a transfer to other schools pointed to a lack of victim status. G.S. had been these pupils’ school of compulsory admission and the State had been required to

‘take positive effective measures to correct the applicants’ factual inequality and avoid the perpetuation of the discrimination that resulted from their over-representation in G.S., thereby breaking the circle of marginalisation and allowing them to live as equal citizens from the early stages of their life.’ (§ 74, with reference to X and Others v. Albania, § 84 and Horváth and Kiss, § 116)

It noted that the government had provided no explanation as to

‘why no measure had been taken to correct the imbalance in the ethnic composition of the two schools in question, or to redistrict the school district map, or why no other appropriate desegregating measure has been taken’ (§ 74, emphasis added).

Turning to the second school, G.D., the Court noted that Roma pupils represented 64 to 67% of all first-grade pupils and that in the 2018/2019 academic year, of the three first-grade classes, two were mixed and one was Roma-only. From this information, it concluded that there was no ‘general policy to automatically place Roma pupils in separate classes in the school at issue’ (§ 75). At the same time, in the 2017-2018 academic year, the Roma-only class had comprised of only 18 pupils (compared to 31 and 32 in the mixed classes), which was below the minimum threshold of class size set by law (§ 76). The school acknowledged the existence of segregation and took certain measures to tackle the problem. These measures failed mainly because of opposition by the parents of non-Roma children (§ 77).

The Court unanimously concluded that the segregation of Roma children in G.S (overrepresentation). and G.D. (Roma-only class) had amounted to discrimination, due to the state’s failure to implement the required positive (desegregation) measures. Under Article 46 of the ECHR, it held that ‘the coexistence of members of society free from racial segregation is a fundamental value of democratic societies and that inclusive education is the most appropriate means of guaranteeing the fundamental principles of universality and non-discrimination in the exercise of the right to education’ (§ 89, with reference to Çam v. Turkey § 64). Therefore, measures need to be taken in order to ensure the end of the segregation of Roma pupils in G.S. and G.D., as recommended by the European Commission against Racism and Intolerance, the National Commission for Prevention and Protection against Discrimination, and the Ombudsman (§ 89).

Comments

The current judgment lives up to the expectations set by the previous judgment of X and Others v. Albania, which marked a promising evolution in the Court’s case law on Roma segregation in education. In my analysis of that case, I reminded readers of the previous Roma segregation cases and put that judgment into the context of these cases. Together, X and Others and Elmazova mark a turn in the Court’s assessment of segregation in education, both in terms of what is required in order to find a situation of segregation discriminatory and in terms of its focus on desegregation measures. In the current commentary, I will take a positive approach, by focusing on all the laudable elements of the judgment – leaving the (limited opportunities for) criticism for elsewhere.

Segregation as mere overrepresentation

In the current judgment, the Court held that the overrepresentation of 83.5% Roma pupils in G.S. amounted to segregation, in violation of the prohibition of discrimination. The mere fact of overrepresentation was sufficient to find a violation of Article 14. This finding crystallises the shift towards lowering the threshold that needs to be reached in order to prove that a situation of segregation is discriminatory under the Convention.

In addition, the Court can be applauded for its realism in assessing the existence of segregation: the fact that there is a clear overrepresentation of pupils of a certain background indeed points to segregation, even where there is no ‘full’ segregation. This reasoning could also be extended to the composition of different classes within a school. This is an approach which the Court has not (yet) taken, as the findings on the second school of G.D. show. In the cases on class composition, the Court holds on to its reasoning developed in Oršuš and Others v. Croatia, where it investigated whether a general policy existed to automatically place Roma pupils in separate classes in the school at issue (Elmazova, § 75, with reference to Oršuš, § 152). Instead of also considering class composition in terms of overrepresentation, the Court applies this criterion for deciding whether classes in the school in general were segregated. If this criterion is not met, the Court looks at individual classes, where segregation may still exist – as was the case in both Oršuš and Elmazova.

In its assessment of whether segregation existed, the Court can also be cheered upon for making an explicit comparison to the ethnic composition of the majority school, T.A., in assessing whether G.S. was segregated. It is indeed extremely relevant that there is another segregated school in the same catchment area, one which is ‘almost exclusively’ attended by ethnic Macedonians (§ 71). In the past, attention has mostly been geared towards the disadvantaged schools and how segregation should be solved in these schools. However, segregation can and should not be solved by focusing only on these schools. This approach can be compared to solving a problem (e.g. bullying or sexual harassment) by focusing on changing the behaviour of the victim instead of that of the perpetrator. Concerning segregation, changes need to be made in both minority- and majority-segregated schools in order to solve the issue of inequality. In the current example, the acceptance policies of T.A. are part of the reason why G.S. is segregated. Solving the issue of segregation in G.S. will require other schools in the area to take on additional Roma pupils and will require a coordinated approach among them, one that includes engagement with the majority parents who may be opposed to the desegregation out of a fear that it would lower the educational quality. By explicitly shining its light also on T.A., the Court seems to embrace this.

Lastly, in accepting that the mere fact of overrepresentation gives rise to segregation, the Court clearly distances itself from the limiting case law of the US Supreme Court, in which a ‘racial imbalance’ (i.e. overrepresentation) cannot lead to the adoption of desegregation measures – be they voluntary or otherwise. In the Supreme Court’s view, this racial isolation is the result of societal discrimination, economic characteristics and/or innocent private choices, with which the Court has no business. This approach has been widely criticised as unfit to tackle the issue of segregation as a social reality. The ECtHR is thus moving to surpass what has ultimately been achieved in the US in the wake of Brown by engaging with social reality. It accepts, contradicting also the Macedonian Constitutional Court (§ 8), that the ‘overall social context’, including the practical application of the regulatory framework, the opposition of non-Roma parents and residential segregation, is legally relevant.

Focus on desegregation

Aside from the Court’s assessment of the existence of segregation, its focus on desegregation measures is also significant. In its assessment under article 46 of the Convention, concerning the measures necessary for the implementation of the judgment, the Court holds that ‘measures to be taken in the context of the present case must ensure the end of the segregation of the Roma pupils in G.S. and G.D.’ (§ 89, emphasis added). This is very clear and explicit guidance on what is needed for compliance with the judgment – guidance that is usually not present in the Court’s judgments. The Court hereby sends a strong message to the state in question – and, one may imagine, all the other states that still have high Roma segregation rates in education, often despite earlier condemnations by the Court – that actual, positive measures will need to be taken. The message reminds of the requirement in X and Others v. Albania that desegregation measures need to be swift and effective, which doubtless will also be applicable to the current situation.

In my analysis of X and Others v. Albania, I criticised the Court for suggesting two desegregation measures which the Government had proposed, although it was quite unclear whether the suggestions were evidence-based or would be effective. Moreover, I questioned whether the Court would be able to assess the appropriateness of the measures suggested. Of course, where the aim is to actually solve the problem of segregation in education, it is necessary to reflect on these issues. In the current judgment, the Court cleverly refers to recommendations by specialised international and national institutions for the question of how to ensure the end of the existing segregation. The European Commission against Racism and Intolerance (ECRI), the National Commission for Prevention and Protection against Discrimination and the Ombudsman all have certain expertise on how to combat segregation and/or insight into the complexity of the problem at the national level. Combining these institutions’ expert knowledge will ensure the quality and effectiveness of future desegregation measures by the state.

Both X and Others v. Albania and the current judgment in Elmazova and Others v. North Macedonia show a shift by the Court from a focus on the assessment of whether situations of segregation in education are discriminatory under the Convention to a focus on positive obligations stemming from segregation and desegregation measures. The question that now remains, is, when will the goal of putting an end to segregation be achieved? This question has also been put before the US Supreme Court for assessment, which has elaborate case law on when a school district can be considered ‘unitary’ and when desegregation measures should thus be lifted. Through years and years of implementation of desegregation and declarations of unitary status, it has become clear what the benefits and the pitfalls of the Supreme Court’s approach are. In many instances the applied measures have clearly led to decreasing segregation rates, although the declaration of unitary status and the ensuing obligation to lift all desegregation measures have resulted in a new rise of segregation. In the future, the ECtHR may be required to give further guidance on the question of when segregation has been ‘ended’. It might be wise to look at the US Supreme Court for inspiration on what approach towards this question to adopt – and on what approach to evade.

Conclusion

The unanimous judgment in Elmazova and Others v. North Macedonia marks another tremendous step forward in prohibiting segregation and guaranteeing equality of all pupils in education. Together with the recent case of X and Others v. Albania, it shows a shift in the ECtHR’s approach from a focus on an assessment of whether situations of segregation in education are discriminatory under the Convention to a focus on positive obligations stemming from segregation and desegregation measures. These judgments have made proving segregation easier, by accepting that merely showing overrepresentation is sufficient for shifting the burden of proof. Elmazova itself can moreover be applauded for its realism in assessing the existence of segregation, contrasting the overrepresentation of Roma pupils in one school to the very homogeneous ethnic composition of the majority school in the same catchment area. By engaging with social reality, in this ruling, the ECtHR is moving to surpass what has ultimately been achieved in the US in the wake of Brown. Lastly, the judgment clearly orders the government to ensure the end of the existing segregation while pointing the member state to specialised international and national institutions for guidance on how to achieve this result. This judgment shows that the Court has genuinely understood the harms of segregation and will take a strong stance in combatting it, while guiding the member states struggling with this complex issue. It has the potential to create (more) equal opportunities for countless children.

The post <strong>Beating Brown v. Board of Education? Overrepresentation and desegregation measures in Elmazova and Others v. North Macedonia</strong> appeared first on Strasbourg Observers.

Dear readers,

The year 2022 has been tempestuous for the Council of Europe and the European Court of Human Rights. Most notably, of course, was the Russian invasion of Ukraine. The return of war on the European continent and the human suffering associated with it highlight the importance of defending human rights, democracy and the rule of law. Russia’s subsequent expulsion from the Council of Europe raises challenges that both the Court and the academic community around it will be dealing with for the foreseeable future. 

This upheaval – a dark period for Europe, as President O’Leary calls it in the Court’s annual report – took place in the midst of the aftershocks of a global pandemic and led to an energy crisis, all while the rule of law continues to backslide in a number of other CoE Member States. In those challenging circumstances, not to even mention the climate crisis, the Court continues to be an essential bulwark for the protection of human rights.

According to the Court’s annual report, it ruled on 39,570 applications throughout 2022,  4,168 of which gave rise to a judgment on the merits. The high number of new applications means the backlog of the Court has nevertheless increased: from 70,150 pending applications in late 2021 to around 74,650 by the end of 2022. In its report, the Court stresses the fact that, of the pending cases, 74% concern five countries: Turkey (20,100 applications), Russia (6,750); Ukraine (10,400); Romania (4,800); and Italy (3,500).

Here at Strasbourg Observers, we too have spent the year working hard to provide you with contributions on ECtHR cases that we and our authors judged to be particularly impactful, important or legally interesting. We are, as ever, extremely grateful to our contributing authors, to our readers, to the Court and to the scholarly community in general for making this dialogue on the Court’s case law possible. 

As is tradition, we like to encourage this dialogue through an annual ‘Best and Worst’ voting poll, in which we ask our readers to vote for the Best Judgment of the year, Worst Judgment of the year, and, since last year, Best Separate Opinion of the year. We have arrived at a shortlist after an internal nominating and voting process, and we now invite you to make your position known by voting for your number 1 candidate in each category. 

In which case did the Court have a particularly important impact on human rights and did it employ particularly clear and accurate legal reasoning? In which case, in contrast, did the Court’s reasoning leave something to be desired or was more far-reaching protection of human rights necessary? Lastly, which judges demonstrated compelling legal reasoning, detailed knowledge of the context of a case, or particular dedication to the cause of human rights? We look forward to you sharing your views on these topics!

In case you disagree with the results of our internal process, we have added a sixth option to each category: the ‘Other’ option. You can fill in this field with your suggestion and are welcome to share your reasons for this vote in the comments section below. In order to remind you – or make you aware – of the key aspects of the nominated judgments and opinions, we have included brief summaries of each judgment and opinion below the polls, as well as links to the relevant judgments and blog posts. 

The results will be announced in early March.

[The order of judgments in all polls is automatically randomised on each page visit.]

Best Judgment

(in alphabetical order)

Advance Pharma Sp. Z O.O v. Poland

This case is a classic case concerning the independence of the judiciary in Poland, in which the applicant company complained that the Civil Chamber of the Supreme Court that had dealt with its case had not been an ‘independent and impartial tribunal established by law.’ The Court found that the procedure for appointing judges to the Civil Chamber of the Supreme Court had been unduly influenced by the legislative and executive powers. Particularly notable in this case is that the Court applied art. 46 ECHR, stating that rapid action was required on the part of the Polish State to remedy the violations, which might lead to further aggravation of the rule of law crisis in Poland. 

From the case: ‘[I]t is an inescapable conclusion that the continued operation of the NCJ as constituted by the 2017 Amending Act and its involvement in the judicial appointments procedure perpetuates the systemic dysfunction as established above by the Court and may in the future result in potentially multiple violations of the right to an “independent and impartial tribunal established by law”, thus leading to further aggravation of the rule of law crisis in Poland. […]. That being said, in accordance with its obligations under Article 46 of the Convention, it will fall upon the respondent State to draw the necessary conclusions from the present judgment and to take any individual or general measures as appropriate in order to resolve the problems at the root of the violation found by the Court and to prevent similar violations from taking place in the future.’

Darboe and Camara v. Italy 

This case concerns age assessment and legal safeguards for asylum seekers. The Court’s reasoning in this judgment is very clear. Refraining from speculating on the applicant’s age, it establishes that the principle of the presumption of minor age is an inherent element of the protection of a foreign unaccompanied individual declaring to be a child. This presumption triggers procedural guarantees that must accompany the age assessment procedure, which the Court borrows from EU and domestic law standards: the appointment of a legal guardian and the right to information. The absence of those safeguards triggered a violation of art. 8 ECHR. With this judgment, the Court also aligns itself with previous rulings of the Committee on the Rights of the Child.

From our blog post by Daniel Simon and Mark Klaassen: ‘Important lessons can be distilled from the Court’s ruling in the present judgment. First and foremost, the presumption of minor age implies that the safeguards for minors apply to asylum seekers during the age assessment process. A lack of respect for these safeguards amounts to a violation of the ECHR. Not appointing a legal guardian and not informing the applicant properly of the age assessment process is at odds with the right to respect for private life and results in a violation of Article 8 ECHR. Placing an asylum seeker in a reception centre unsuitable for children violates the prohibition of inhuman and degrading treatment protected by Article 3 ECHR. And last, not granting the right to an effective remedy against the alleged violation of these provisions violates Article 13 ECHR. The procedural, and for that matter, the principled approach of the Court means that this all applies even if the applicant, in the end, is found to be an adult.’

Elmazova and others v. North Macedonia

The case of Elmazova concerns the segregation of Roma pupils in two primary schools in North Macedonia. In the first school, Roma pupils represent 83.5% of the total number of pupils. In the second school, a number of Roma pupils are put into Roma-only classes. Mentioning that both schools offered a program that was the same as, or at least similar to, that of other public primary schools, the Court established that both instances violate the prohibition of discrimination. It held that the state was required to ‘take positive effective measures to correct the applicants’ factual inequality and avoid the perpetuation of the discrimination that resulted from their over-representation in [one of the schools], thereby breaking the circle of marginalisation and allowing them to live as equal citizens from the early stages of their life’ (§74). The Court ordered the State to take measures in order to ensure the end of the segregation of Roma pupils in both schools.

From our forthcoming blog post by Merel Vrancken: ‘The unanimous judgment in Elmazova and Others v. North Macedonia marks another tremendous step forward in prohibiting segregation and guaranteeing equality of all pupils in education. Together with the recent case of X and Others v. Albania, it shows a shift in the ECtHR’s approach from a focus on an assessment of whether situations of segregation in education are discriminatory under the Convention to a focus on positive obligations stemming from segregation and desegregation measures. […] Elmazova itself can moreover be applauded for its realism in assessing the existence of segregation, contrasting the overrepresentation of Roma pupils in one school to the very homogeneous ethnic composition of the majority school in the same catchment area.’

G.M. and others v. Moldova

This case concerns the imposition of abortions and contraceptive measures upon women with intellectual disabilities, which the Court declared to be a violation of art. 3 ECHR. In its legal reasoning, the Court makes a detailed analysis of the importance of reproductive rights, as well as of supporting the autonomy of people with intellectual disabilities. In contrast with much of its previous case law on disability rights, the Court embraces a rights- and agency-based approach in addressing reproductive rights of women with intellectual disabilities. It stresses the importance of systemically empowering women with intellectual disabilities to give their informed consent about their reproductive decisions, and explicitly engages with the systemic oppression and paternalistic stereotypes that governed the authorities’ decisions about the applicants. Furthermore, it performs a detailed examination of the applicants’ vulnerabilities as women with intellectual disabilities who had been the victim of rape in the neuropsychiatric institution they resided it, and thus expands not only its case law on vulnerability, but also its implicit recognition of vulnerability. 

From our blog post by Eva Sevrin and Emma Varnágy: ‘In conclusion, G.M. and others has centralized the autonomy of intellectually disabled women. Through targeting a broader context, the Court has addressed a more complete legislative reality that can lead to severe human rights abuses of intellectually disabled women. Unlike other disability-related case law, the Court seems to have aligned itself with other international human rights instruments and their enforcement mechanisms, most notably the CRPD.’

Safi and others v. Greece

This case originated from the sinking of a fishing vessel in the Aegean Sea, aboard which were 27 migrants who sought to enter Greece from Turkey. As a result of the sinking, 11 of the vessel’s passengers died, in the presence of a coast guard vessel. The Court found a violation of art. 2 ECHR in both its procedural and substantive aspects, condemning the State’s failure to adequately respond to the risk to the passengers’ lives and to properly investigate the fatal sinking of the vessel, as well as of art. 3 ECHR, due to the imposition of body searches to persons in such vulnerable circumstances.

From our blog post by Spyridoula (Sissy) Katsoni: ‘Regarding the alleged violation of the substantive aspect of Article 2, the Court observed that upon its arrival to the scene, the crew of the Greek Coast Guard’s boat had undoubtedly became aware of the adverse weather conditions and the fishing vessel’s condition (para. 159). It further noted that there was no explanation as to how the crew intended to rescue the persons with a speedboat that lacked the necessary rescue equipment and as to why they requested no additional assistance (e.g. a more suitable boat) from the competent authorities (para. 160). Regarding the Government’s allegation that the capsizing of the fishing vessel had occurred as a result of the passengers’ panic, after the anchor point at the bow of the vessel was torn off following the Coast Guard’s first attempt of towing, the Court found that this panic was expected and could not explain the Coast Guard’s second attempt to tow the vessel under these circumstances (para. 161).’

Worst Judgment

(In alphabetical order)

Muhammad v. Spain

In this ‘racial profiling’ case, the Third Section of the Court found no violation of Article 14 in conjunction with Article 8. The applicant was subjected to an impromptu identity check by the police in a touristic area of Barcelona where pickpocketing is common. The Court ruled that the burden of proof could only be shifted from the applicant to the government once the applicant could substantiate his allegation. This led to the outcome that victims of racial profiling will bear a disproportionate burden in proving the existence of a racial motivation on the part of the authorities, despite the state being better placed to do so (see also the nomination for Y and Others v. Bulgaria below, as well as the nomination of the separate opinion of Judge Krenc in the category of best separate opinion).

From our blog post by Mathias Möschel: ‘Especially problematic is the extension of the criminal law standard of proof beyond reasonable doubt to individual applicants in a human rights court. At the national level, rightly so, it is supposed to protect individual criminal defendants from state prosecutors who have all the information and power, but applicants before the Court are in a vastly different position. Overall, a careful and equal application of shifting the burden of proof in all cases involving (race) discrimination once the applicant has made a prima facie case of racism, whether direct or indirect discrimination or arising from criminal, civil or administrative law cases, should be the way forward.’

Otite v. the United Kingdom

Otite concerns the deportation of a settled migrant as a result of his conviction for a serious fraud offence. At the domestic level, the UK courts conducted the balancing exercise without reference to the ECtHR’s case law, but solely based on the domestic Immigration Rules. Regardless, the Fourth Section of the ECtHR still found no violation of Article 8 on procedural grounds, thus bringing into question the Court’s procedural approach that is typically applied for expulsion cases.

From our blog post by Harriet Ní Chinnéide: ‘[I]t is somewhat surprising that despite identifying failings at the domestic level the Court continued to reach a finding of no violation in Otite. The literature suggests that one of the key merits of process-based review is increased engagement with the Convention at the national level – a benefit that Otite arguably serves to undermine.  Arguably, regardless of the outcome which should have been reached based on a substantive assessment of the applicant’s conduct and personal circumstances, from a procedural perspective, the flaws in the domestic balancing process identified by the Court, should have led to a finding of a violation. Such a result would have reinforced the importance of proper consideration of Article 8 requirements at the domestic level and incentivised greater engagement with the Convention in future cases.’

Savickis and Others v. Latvia

The case concerns the rights of non-citizens (a majority of whom are ethnic Russians) in Latvia. They are denied recognition of their period of work outside Latvia in the calculation of their pension, while such a recognition is accorded to Latvian citizens. The Grand Chamber found no violation of Article 14 in conjunction with Article 1 of Protocol No. 1. The Court accepted protection of constitutional identity as a legitimate aim. While differential treatment must have ‘very weighty reasons’, the majority ruled that this criterion must be read in light of a wide margin of appreciation. In this regard, the Court’s reasoning in finding a wide margin can be seen as unsystematic and confusing. Furthermore, the Court essentially put the blame on the applicants for not having sought to acquire Latvian citizenship. This appears to constitute an unexplained departure from Andrejeva v. Latvia, in which the Court ruled that the applicant could not be expected to change their status to avoid discrimination (see also the nomination of the separate opinion of Judges O’Leary, Grozev and Lemmens in the category of best separate opinion).

From our blog post by Sarah Ganty and Dimitry Kochenov: ‘The decision of the ECtHR Grand Chamber in Savickis will be remembered for its dissents, since the majority played a dangerous game by directly engaging in victim blaming and overturning a settled precedent against the spirit and the letter of the Convention. This was done in a manner which also contradicts the idea of non-discrimination as such. In order not to be discriminated against, according to the Grand Chamber, it is now necessary to naturalize in the state directly discriminating against you, however difficult this could be and whatever the victims of direct discrimination think about the procedure. Most crucially, the reasons for saying goodbye to foundations of non-discrimination law in Savickis are entirely unclear: the twists and turns of good old guilt by association are incapable of helping us make sense of this blow to the Court’s reputation.’

Vegotex International S.A. v. Belgium

The Grand Chamber in this case went against its own case law in accommodating the Belgian legislator’s retrospective regularisation of an administrative practice which had been found to be unlawful by the Court of Cassation. In doing so, the Court could be seen to have undermined the Court of Cassation’s authority and, more importantly, revived an already expired limitation period (see also the nomination of the separate opinion of Judges Spano, Kjølbro, Turković, Yudkivska, Pejchal, Mourou-Vikström and Felici in the category of best separate opinion).

From our blog post by Tobias Mortier: ‘Instead of raising its scrutiny level regarding the compelling nature of the interests adduced by the government, the ECtHR actually displayed an excessive amount of deference and even went so far as to contradict its own case law on the matter. Admittedly, determining how compelling a certain interest is, is a heavily context-specific task, which makes it nearly impossible for the ECtHR to apply a one-size-fits-all approach. However, it behooves the ECtHR to at least adhere to its own standards in doing so; otherwise, the compelling aim of preserving legal certainty might not only be impeded within the Belgian legal order, but across all Contracting Parties to the Convention as well.’

Y and Others v. Bulgaria

On 18 August 2017, V was fatally shot by her husband. In the preceding nine months, she had submitted various complaints concerning domestic violence. The Fourth Section of the ECtHR found no violation of Article 14 because the applicants had failed to supply statistical evidence demonstrating general complacency of authorities towards domestic violence. While the failure of Bulgaria in keeping statistical evidence was considered a serious omission, the Court still shifted the burden of proof to the applicants. This requirement was then adopted in Landi v. Italy as well, which also concerns domestic violence. 

From our blog post by Stella Christoforidou: ‘The rulings in Landi v. Italy and Y and Others v. Bulgaria mark a U-turn in the Court’s approach in domestic violence cases when compared with Opuz v. Turkey, the cornerstone of the Court’s domestic violence case law up until now. Despite the fact that victims of domestic violence should be considered by definition as a vulnerable group, especially in light of the Istanbul Convention, in these two cases the Court placed a disproportionate burden on the applicants, vis-à-vis their status, by obliging them to provide statistical evidence to prove that authorities treated them in a way that violated Article 14 in conjunction with Article 2.’

Best Separate Opinion

(In alphabetical order of the judgments)

Concurring opinion of Judge Šimáčková in Bouton v. France

The case concerns the imposition of a suspended prison sentence on a Femen activist who conducted a topless protest in a church. She was convicted under Article 222-32 of the French Criminal Code, which prohibits ‘indecent sexual exposure imposed on the view of others in a public place’. The Fifth Section of the ECtHR found a violation of Article 10, since the sentence was disproportionate. In her concurring opinion, Judge Šimáčková disagreed with the majority’s finding that the criminal conviction was prescribed by law. In reference to the content of national decisions, she identified the real reason behind the conviction, which was the protection of believers and their freedom of religion. Since France does not criminalise blasphemy, the criminal sanction was unlawful. She then made a reference to French culture and art, in which women are frequently bare-chested, and pinpointed the sexism inherent in cases like these, asserting that ‘[s]ociety accepts and even demands that the legislator discipline women as to what they can or cannot exhibit and even use the tools of criminal law to do so. Indeed, women do not have the right to be dressed too much or too little. Everyone is free, but women have to be careful what they reveal and what they hide.’

Partly dissenting opinion of Judge Pavli in D.B. and others v. Switzerland 

See our blog post here.

In his partly dissenting opinion, Judge Pavli considers that the majority was wrong to consider that, having found a violation of art. 8, it was unnecessary to examine the case separately under art. 14. He argues that, while it is already hard enough for children when the State does not legally recognise their relationship with one of their de facto parents, it is even worse when that treatment is reserved to children of homosexual couples. Indeed, the best interests of the child should not depend solely on their parents’ sexual orientation. He argues that laws have a moral dimension, and that a discriminatory law thus creates a discrete form of harm, beyond the violation of children’s rights under art. 8. Consequently, the majority is wrong to argue that art. 14 does not raise a distinct issue in this case. Judge Pavli is convinced that in time, equality reasoning will be applied in all cases concerning a discrimination based on sexual orientation. 

Dissenting opinion of Judge Krenc in Muhammad v. Spain

See our blog post here. 

In his dissenting opinion, Judge Krenc provides a thorough analysis of the state’s positive obligations in the case of racial profiling. He argues that the Spanish authorities failed to fulfill their positive obligation to carry out an effective investigation. Moreover, Judge Krenc insists that the majority should have addressed the state’s positive obligation to set up an adequate legal framework providing effective safeguards against racial profiling, which it did not, despite the applicant having raised this argument. Furthermore, regarding evidence, Judge Krenc highlights that  ‘[a]pplicants are often faced with difficulties in proving discriminatory treatment (…)’, though the issue is ‘particularly tricky’ (para. 14).

Dissenting opinion of Judges O’Leary, Grozev and Lemmens in Savickis v. Latvia

See our blog post here. 

The three judges rebuke the way the majority applied the ‘very weighty reasons’ criterion. They point out that by requiring ‘very weighty reasons’ to be read in light of a wide margin of appreciation, the majority undermined this criterion. The three judges also question the legitimate aims invoked by Latvia. Finally, they strongly disagree with the majority’s statement that the decision to acquire citizenship of a given State is purely a matter of ‘personal choice’. In their words: ‘As regards discrimination cases generally, we find it very troublesome that the Andrejeva logic is abandoned in the present case. The majority’s reasoning risks undermining the very essence of the prohibition of discrimination. This case is about nationality. We wonder to what other non-immutable prohibited grounds the majority would be prepared to extend this reasoning. It appears to us to be a dangerous and slippery slope.’ (para. 18)

Partly dissenting opinion of Judges Spano, Kjølbro, Turković, Yudkivska, Pejchal, Mourou-Vikström and Felici in Vegotex International S.A. v. Belgium

See our blog post here. 

The partly dissenting judges criticise the majority for not adhering to the Court’s own standards under art. 7. They point to the several potential negative consequences of the majority’s reasoning, in particular concerning the legitimacy of the applicant’s expectations and the revival of an already expired limitation period. They argue that the majority did not in fact put an end to a situation of legal uncertainty and instead did the opposite, since the Court of Cassation, as the highest Belgian court competent for the present matter, actually provided legal certainty with its judgment, which the present ECtHR judgment undoes. They conclude that in not finding a violation of art. 6, the majority applies art. 6 in a manner that is inconsistent with art. 7, since the outcome is that a legislative intervention with retrospective effect is allowed to restore criminal liability for offences that have become time-barred. In their words: ‘The Court’s reliance on the “compelling grounds” test and the argument that tax surcharges differ from “the hard core of criminal law”, invoked in order to justify the finding of no violation of Article 6, lead to the unfortunate outcome that a legislative intervention with retrospective effect restoring criminal liability for offences that have become time-barred – something that would amount to a violation of Article 7 of the Convention – can, nevertheless, be in conformity with Article 6 of the Convention. Article 6 is thereby interpreted in a manner that renders it inconsistent with Article 7 of the Convention.’

The post Poll: Best and Worst ECtHR Judgment and Best Separate Opinion of 2022 appeared first on Strasbourg Observers.

By Dr Elif Askin

The prohibition of discrimination in Article 14 of the European Convention on Human Rights (ECHR) has been criticised for being a ‘parasitic’ right of marginal impact and ‘a kind of a Cinderella provision that has not been given an opportunity to shine’. Over the past decade, however, the European Court of Human Rights (ECtHR or the Court) has started to engage more actively with discrimination claims brought before the Court. In general, the ECtHR has taken a more coherent approach to the interpretation of Article 14 ECHR than in its early jurisprudence. In many recent cases, the ECtHR has developed and further expanded the constituent parts of the right and the standard of review for establishing a discrimination under the Convention system. Nevertheless, gaps and inconsistencies in the juridical practice on Article 14 ECHR are still apparent.

On 13 July 2022, the ECtHR issued an advisory opinion on the difference in treatment between landowners’ associations “having a recognised existence on the date of the creation of an approved municipal hunters’ association” and landowners’ associations set up after that date (P16-2021-002). In the advisory opinion, the Court elaborates on the legal test to be applied when assessing an alleged violation of Article 14 ECHR in conjunction with Article 1 of Protocol No. 1 (protection of property), in the context of a legal provision on hunting in France. Relying on pertinent case law on Article 14 ECHR, the ECtHR provides detailed guidance to national courts on how to examine discrimination claims in line with the Convention system. This blogpost discusses the findings of the ECtHR by analysing how the Court interprets and applies the existing standards of Article 14 ECHR to the question at hand. As I will show below, the advisory opinion contains several loopholes that remain to be addressed and clarified by the Court in future cases relating to the prohibition of discrimination.

Background, Facts and Question Asked to the Strasbourg Court

On 19 April 2021, the Conseil d’État asked the ECtHR to give an advisory opinion under Protocol No. 16. The request relates to a case pending before the French court in which the federation of owners of private forest land (forestiers privés de France) filed an application following an amendment to Article L. 422-18 of the French Environment Code introduced in 2019 (AO, § 12).

The dispute has arisen in the context of the ‘Loi Verdeille’, a French law of 1964 that introduces the establishment of hunting co-operatives known as the municipal hunters’associations (associations communale de chasse agréée (‘ACCAs’)) in the French municipalities. The ACCAs were enacted to curb ‘public hunting’ on land belonging to others, which was causing serious environmental damage, and to ensure the balanced management of hunting and game stocks by regulating this practice on French territory (AO, § 25-28).

Under that law, landowners are required to become members of the local ACCA and transfer their land and hunting rights to it in order to create hunting grounds governed by common rules in the French municipalities. The Environment Code regulates the conditions under which individual landowners and landowners’ associations can withdraw their hunting grounds from an ACCA to which they are affiliated.

First, Article L. 422-10 of the Environment Code stipulates that once an ACCA has been established in a municipality, landowners and landowners’ associations holding hunting rights over areas larger than the minimum area referred to in the legislation are entitled to object to the compulsory transfer of their land to the ACCA (AO, § 38). Second, Article L. 422-18 of the Environment Code, which has been challenged before the Conseil d’État, provides thatwhileindividual landowners are entitled to withdraw from an ACCA at any time if their land attains the minimum area, only those landowners’ associations which had a recognised existence prior to the date of creation of the АССА are entitled to withdraw from the ACCA if their land pooled together reaches the minimum area referred to in that provision. However, the same provision excludes this option of withdrawal for landowners’ associations set up after the creation of an ACCA, even if their combined land reaches the minimum area required by law. As a result, landowners’ associations formed after the establishment of an ACCA cannot regain exclusive hunting rights over their land that they lost when the land was transferred to the respective ACCA, whereas the right to withdraw is granted to associations that existed at the time of the creation of an ACCA (AO, § 37-47, 54).

Before the Conseil d’État, the applicant federation claimed that the temporal distinction introduced by Article L. 422-18 of the Environment Code between landowners’ associations formed prior to, or after the creation of, an ACCA is discriminatory and constitutes a violation of Article 14 ECHR and Article 1 of Protocol No. 1. The applicant argued that the public interest objective pursued by the creation of the ACCAs could have been achieved by other means, without the need for a differential treatment between landowners’ associations based on the possibility of opting out from their local ACCAs (AO, § 15).

The Conseil d’État requested an advisory opinion from the ECtHR on the following question:

The Court’s Advisory Opinion

The advisory opinion addresses the legal criteriaenabling domestic courts, in this case the Conseil d’État,to assess whether the differential treatment between various landowners’ associations resulting from Article L. 422-18 of the French Environment Code is compatible with Article 14 ECHR in conjunction with Article 1 of Protocol No. 1 (AO, § 56). In general, the Court’s findings are in line with its jurisprudence on Article 14 ECHR, particularly as far as the structure of the examination of the right is concerned. However, the advisory opinion provides domestic courts with a detailed and well-structured roadmap for examining the discrimination tests of Article 14 ECHR. The ECtHR gives a solid overview of the criteria applicable to these tests, as derived from its case law.

As in previous cases, the Court reiterates that the rough structure of examination is a two-step test of assessing whether there has been a violation of the prohibition of discrimination. The first step is to review, on the one hand, whether the difference in treatment falls within the scope of Article 14 ECHR in conjunction with Article 1 of Protocol No. 1 (protected grounds test), and, on the other hand, whether the treatment in question concerns persons in ‘analogous’ or ‘relatively similar’ situations (comparability test). The second step is then the examination of the justification for the differential treatment (justification test) (AO, § 57).

The Test for Discrimination under Article 14 ECHR

1. The Protected Grounds Test

The prohibition of discrimination of Article 14 ECHR requires the differential treatment to be based on a protected ground against discrimination (see e.g. here). The ECtHR rightly points out that a difference in treatment based on a temporal distinction cannot a priori be excluded from the scope of Article 14 ECHR and Article 1 of Protocol No. 1 (AO, § 62). In this context, the Court invokes two potential grounds of discrimination enumerated in Article 14 ECHR, namely ‘other status’ and ‘property’, both of which could be applicable to the present case (AO, § 60-61). So far, both discrimination grounds have only played a marginal role in the Court’s case law on Article 14 ECHR.

This is the first time that the ECtHR addresses the question of whether a differential treatment based on a temporal criterion is covered by the ground of ‘other status’ within the meaning of Article 14 ECHR (AO, § 60). As in previous judgments, the ECtHR notes that this ground has a broad meaning and is not limited to personal characteristics (AO, § 60). Thus, the Court reaffirms that a differentiation which is not personal but merely factual and which leads to a differential treatment as in the present case may – at least potentially – fall within the scope of Article 14 ECHR. Unfortunately, that is all the Strasbourg Court has to say about this ground of discrimination, which is becoming increasingly important in relation to current discrimination cases.

Furthermore, it is also interesting to see how the ECtHR develops another potential ground of discrimination based on ‘property’ in this case. In the Court’s view, the temporal distinction between landowners’ associations in the French Environment Code indirectly refers to the size of landholding and thus to immovable property. The ground of property is therefore applicable to the present case (AO § 61).

My first critical point relates to the Court’s identification of the ground of discrimination in this case. According to the ECtHR, both grounds of discrimination could be applicable to the case at hand, but the legal reasoning to be expected from the ECtHR in the context of an advisory opinion is obviously missing here. It would certainly have been beneficial for future cases under Article 14 ECHR if the Court had elaborated on the application of the discrimination ground of other status to the differential treatment in question, rather than ‘indirectly’ constructing a discrimination ground on the basis of property. This is problematic because the differential treatment between the landowners’ associations introduced by the French Environment Code is based on a temporal distinction, namely the date on which these associations were formed in relation to date of the creation of an ACCA. Instead, the Court constructs the discrimination ground of property from the rationale underlying the creation of the ACCAs. While Article L. 422-18 of the French Environment Code inevitably raises questions relating to the enjoyment of property, the link with the differential treatment in question here is only ‘indirect’, as the Court itself admits (AO, § 57, 60).

In general, the applicability of a discrimination ground to a differential treatment raises the larger question of whether extending the scope of a protected ground is in fact preferable. As far as the Court’s finding on the ground of property is concerned, I think the better arguments speak against such an ‘indirect’ extension, not least in order to avoid the risk of a boundless application of the prohibition of discrimination. But this is of course a fundamental question that concerns not only the ground of property but also that of other status, the contours of which remain unclear. Unfortunately, the ECtHR missed the opportunity here to clarify the long-awaited definition of this ground of discrimination.

2. The Comparability Test

The comparability test under Article 14 ECHR requires an assessment of whether the differential treatment concerns persons in ‘analogous’ or ‘relatively similar situations’ (AO, § 64). As noted by the Court, Article L. 422-18 of the Environment Code distinguishes between two categories of persons and legal entities, namely landowners and landowners’ associations having a recognised existence prior to the date of creation of the АССА, and associations set up after that date (AO, § 63).

The advisory opinion provides an overview of the criteria developed in the Court’s case law for assessing the comparability of situations under Article 14 ECHR. According to the ECtHR, the factual and legal elements applicable to the comparability of a situation must be assessed on the basis of the subject-matter and purpose of the (legislative) measure which made the distinction. Furthermore, the assessment needs to take into account the context in which the measure is imposed. It should be based on objective elements that consider the comparable situation in its entirety rather than only its individual aspects (AO, § 67-69).

The ECtHR stresses that the existence of an analogous situation does not necessarily require that the persons or groups being compared are identical. In fact, the Court holds that the two categories of associations in the present case are in different situations. The Conseil d’État will therefore have to examine whether the two groups of associations ‘bear similarities which would outweigh their differences’ (AO, § 70).

Another critical point in this context is the Court’s remarks on the burden of proof in discrimination cases. The ECtHR emphasises that the applicant must demonstrate that he or she has been subjected to discriminatory treatment and is in a comparable situation to other persons but is treated differently. The applicant should gather the relevant factual and legal information and make it available to the domestic court (AO, § 66). The burden of proof is therefore on the applicant, also because of the wide margin of appreciation that States have in discrimination cases involving economic and social policy, as I will show below. This rule remains problematic, particularly with regard to its practical implications. Most discrimination cases are complex and pose a challenge for applicants to prove that they belong to a comparator group but are treated differently.

3. The Justification Test

A differential treatment is discriminatory and in breach of Article 14 ECHR if there is no ‘objective and reasonable justification’ for it (AO, § 72). In accordance with the Court’s case law on Article 14 ECHR, the justification test requires that the treatment in question pursues a ‘legitimate aim’ and has ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’ (AO, § 72).

Considering the justification test in detail, the ECtHR holds that the standard of justification will vary depending on the ground and context of the alleged discrimination. An important aspect is the margin of appreciation of national authorities in assessing the justification of a differential treatment. The Court notes that France has a wide margin of appreciation concerning the question at hand and recognises that this is closely linked to the nature of the discrimination ground on which the differential treatment is based (AO, § 100). According to the ECtHR, the discrimination ground of property justifies a wider margin of appreciation of States due to the involvement of economic and social policies at the national level than a differential treatment based on discrimination grounds like racial or ethnic origin, which the ECtHR deems to be unacceptable (AO, § 100, see also Chabauty v. France, § 50).

The Court thus assumes that certain types of differential treatment are prima facie discriminatory, but this is obviously not the case here. In its assessment, the Court appears to link the ground of discrimination to the margin of appreciation of States when assessing the justification for the differential treatment. Such treatments, arising from social and economic policies of States (based on protected grounds of property or other status), grant national authorities a wide margin of appreciation and, in turn, seem to restrict the extent of the scope of the Court’s scrutiny in examining the alleged discrimination. This would imply that a violation of Article 14 ECHR can be found as a result of certain grounds of discrimination (e.g., race or ethnic origin), but not for grounds relating to social and economic policy. Consequently, certain forms of differential treatments, such as those based on property, would be automatically excluded from the scope of Article 14 ECHR. It can be left open at this point whether the Court has deliberately engaged in such a vicious circle. Rather, it seems to me that the Court derived its reasonings here from the case of Chabauty v. France, which also concerned hunting issues in France and where the difference in treatment was based on the discrimination ground of property. As mentioned above, the present question could arguably be examined under the discrimination ground of other status rather than property. However, it is doubtful whether the ECtHR would have ruled differently when considering the justification for the differential treatment.

Conclusion

The Court leaves it to the Conseil d’État to determine whether the differential treatment of the landowners’ associations is in accordance with Article 14 ECHR and Article 1 of Protocol No. 1. In general, the advisory opinion provides a roadmap for the assessment of the discrimination test and is a useful compilation of the legal standards that the ECtHR has developed over the years in relation to Article 14 ECHR. Nevertheless, the advisory opinion also reveals that loopholes still exist within the framework of Article 14 ECHR. These concern not only the definition of the discrimination grounds of Article 14 ECHR and the rules on the burden of proof, but also the role of States’ margin of appreciation in discrimination cases. The advisory opinion reveals once again that the clarification of the issue of the States’ margin of appreciation is critical for establishing a violation of Article 14 ECHR. It remains to be seen how this will evolve in the Court’s practice in the future.

The post Guidance for Assessing Discrimination under Article 14 ECHR: Advisory Opinion on the Difference in Treatment between Landowners’ Associations “having a recognised Existence on the Date of the Creation of an approved Municipal Hunters’ Association” and Landowners’ Associations set up after that Date appeared first on Strasbourg Observers.

Harriet Kennedy

Introduction

Otite v the United Kingdom revolves around the expulsion of a settled migrant from the United Kingdom following his conviction for two counts of conspiracy to make or supply articles for use in fraud. In its ruling, the European Court of Human Rights (ECtHR) found that the balancing exercise carried out by the UK courts had taken place solely within the framework of the domestic Immigration Rules and not with reference to the Court’s case law. This led the Court to stray from the procedural approach which it typically applies in Article 8 expulsion cases, and conduct its own substantive review of the case. Nevertheless, it ultimately found that no violation of Article 8 had taken place.

The Court’s finding of no violation despite its clear acknowledgement of flaws in domestic procedure is very interesting in light of the ‘procedural turn’ in the Court’s jurisprudence in recent years. Where the procedural approach is adopted, the Court has begun to demonstrate a willingness to defer to the decisions of domestic authorities who show fidelity to their obligations under the European Convention on Human Rights (the ECHR; Convention). This approach is intended to incentivise domestic authorities to engage more actively with the Convention and relevant caselaw in their adjudication of cases, as when they do so, they stand to benefit from a more lenient style of review.

Could it be said that a ruling such as this one, where the Court find no violation of Article 8 despite identifying clear flaws in domestic processes, could serve to undermine this incentivising function? In this post I will first set out the facts of the case and the contents of the Court’s judgment before reflecting on why I believe that this may be so.  

Facts

The applicant, Junior Otite, is a Nigerian national who entered the UK as the spouse of a settled person when he was 31 years old.  His wife is a British citizen and three children are British citizens.

In 2013, Mr. Otite’s application for naturalisation as a British citizen was refused because he had a criminal record for tendering a false statement. In 2015, he was served with notice of his liability for deportation, having been convicted the previous year on two counts of conspiracy to make or supply articles for use in fraud. These convictions had resulted in a four-year-and-eight-month prison sentence. According to the judge’s sentencing remarks, between 2010 and 2014 the applicant had operated a document factory, producing documents to facilitate fraudulent acts. The judge was satisfied that the full extent of the losses suffered by others as a result of the fraudulent documents was “well over £100,000 if not several hundred thousand pounds.” (para 9)

The applicant appealed his deportation, invoking Article 8 ECHR. His appeal was first considered and refused by the Secretary of State of the Home Office. The Secretary of State found that the domestic Immigration Rules provided a complete code for considering Article 8 claims and set out the situations in which a foreign criminals private and/or family life would be deemed to outweigh the public interest in his deportation. Pursuant to the provisions of domestic law, in the case of offenders who were sentenced to four or more years imprisonment, the public interest in their deportation would only be outweighed by their interests under Article 8 where there were “very compelling circumstances” over and above the existence of a genuine and subsisting relationship with a partner and/or minor children settled in the UK and for whom the effect of the offender’s deportation would be “unduly harsh.” (para 11) The Secretary of State found that this threshold was not met in Mr. Otite’s case. Although this decision was initially overturned on appeal before the First-tier Tribunal, it was later upheld by the Upper Tribunal and the applicant was refused permission to lodge a further appeal before the Court of Appeal.

In reaching its decision, the Upper Tribunal noted reports showing that there was a ‘noticeable risk’ that the applicant would reoffend on his release from prison. They also considered his family situation and the impact his deportation would have on his wife and children. They concluded that Mr. Otite’s family ‘was an ordinary family which, like any other family, would be affected by the applicant’s deportation.’ (para 20) However, they held that the ‘evidence was such that it would be extremely difficult to establish that his deportation would be “unduly harsh” on his wife or children, let alone that there existed additional “very compelling circumstances”’ precluding his deportation. (para 20)

Judgment

The Court found that the applicant’s deportation would constitute an interference with his rights under Article 8.1. There was a legal basis for this interference and it had the legitimate aim of preventing disorder and crime. The principal issue to be determined was whether a fair balance had been struck between Mr. Otite’s Convention rights and the community’s interests.

The Court noted that in determining this, it was not its task to ‘substitute its own assessment of the merits for that of an independent and impartial domestic court or tribunal which has examined the facts carefully, applied the relevant human rights standards consistently with the Convention and the Court’s case-law, and balanced the interests of the applicant against those of the general public’ unless there were strong reasons for doing so. (See Ndidi v. the United Kingdom, Hamesevic v. Denmark, Alam v. Denmark) The Court also noted however, that in the absence of such an assessment, it remains empowered to give the final ruling on whether an expulsion measure can be reconciled with the Convention. (para 42) Taken together, these statements amount to a reiteration of the principles of process-based review and an affirmation of the principle of subsidiarity, the broader doctrine upon which this approach is grounded.

Mr. Otite’s complaint was directed primarily towards the Upper Tribunal’s decision-making process and its alleged failure to conduct an Article 8 compliant proportionality assessment. The Court reiterated its previous finding (see Unuane v. the United Kingdom, para 83), that the domestic framework did not necessarily preclude the striking of a fair balance on the facts of an individual case. It found that the Upper Tribunal had given detailed consideration to the particulars of the applicant’s situation, balancing the seriousness of his offence against the likely impact the deportation order would have on his private and family life with regard to many of the relevant criteria set out in the Court’s previous case law. It did not consider the difficulties that the applicant’s wife and children would face in Nigeria if they returned with him as they did not think that this was a likely outcome (para 44).

Nonetheless, the Upper Tribunal did not conduct this balancing exercise by reference to the case-law of the Court. Instead, it reached its decision solely within the framework provided by the domestic Immigration Rules, with a view to determining whether the impact of Mr Otite’s deportation on his family would be ‘unduly harsh’ and whether there were any ‘very compelling circumstances’ capable of outweighing the public interest in his deportation. In light of this, the Court found that the balancing exercise had not been conducted as the case-law required and that it fell to the Court ‘in exercise of its supervisory jurisdiction, to give the final ruling on whether the applicant’s expulsion would be reconcilable’ with the Convention. (para 45)

Having conducted this balancing exercise itself, the Court found that the Mr. Otite’s expulsion could be reconciled with Article 8. The Court agreed with the Upper Tribunal that the fraud offence committed by the applicant was sufficiently serious to outweigh the interests of a long-term resident alien who had arrived in the UK as an adult and who had not recognised the severity of his offence nor the impact and consequences it had had on the victims and who was, therefore, likely to reoffend.

The Court noted the submission of the third-party interveners (the AIRE Centre and the Joint Council for the Welfare of Immigrants), who suggested that in cases such as this one, the best interests of the children should be the primary situation. While it recognised that in all decisions involving children, their best interests should be afforded ‘significant weight,’ it held that when an offender is being deported as a consequence of a criminal offence, the deportation decision first and foremost concerns him. The family’s interest may be outweighed by other factors. In this case, while the applicant’s deportation would be certainly be difficult for his wife and children, there was nothing to suggest that they were in absolute need of his support. Furthermore, there was no evidence to suggest that his family could not return to Nigeria with him or that they could not remain in the UK and visit him in Nigeria and keep in contact via telephone and internet. Ultimately, the Court concluded that the strength of the applicant’s family and private life in the UK was not such as to outweigh the public interest in his expulsion and held, by five votes to two, that his deportation would not violate Article 8 of the Convention.

In a joint dissenting opinion, Judge Guerra Martins and Judge Motoc disagreed with the majority and found that despite the seriousness of the offence committed by the applicant, his deportation would violate Article 8 of the Convention. In reaching this conclusion, they noted that the Upper Tribunal ‘failed to strike an appropriate balance between the public and private interests by underestimating, without sufficient justification, one of the most relevant criteria established by the Court, namely the best interests and well-being of the children.’ (dissenting opinion, para 7)  

Comment

Having set out the facts of the case and the arguments advanced by the Court in its judgment, I would like to return to the question posed at the outset of this post: does this ruling undermine the prior efforts of the Court to incentivise domestic authorities to actively engage with the Convention by properly applying the criteria set out by the Court when assessing the proportionality or otherwise of an expulsion order? To answer this question I will first revisit what is meant by the procedural approach (something which I have written about in a previous post on this blog) and the purported incentivising function thereof, before returning to the reflect on the judgment at hand.

In recent years, numerous scholars have identified a so-called ‘procedural turn’ in the jurisprudence of the Court. This development is closely linked to the principle of subsidiarity and the doctrine of the margin of appreciation as the Court demonstrates a willingness to ‘defer to the reasoned and thoughtful assessment by national authorities of the Convention obligations.’ Following the case-load crisis that threatened the Court subsequent to its geographic and jurisdictional expansion during the 1990s as well as the backlash against it during the 2000s for its interventionist role, both of these concepts have been subject to significant attention – and to very tangible effect! Indeed, the adoption of the Brighton Declaration in 2012 (entered into force in 2021) introduced an explicit reference to subsidiarity and the margin of appreciation into the text of the ECHR for the first time.

This procedural turn can be understood to encompass two closely related developments: (a) the Court’s practice of reading self-standing positive obligations into the scope of substantive convention rights and (2) its burgeoning tendency, to rely on the quality of national decision-making procedures when reviewing the proportionality of an impugned measure. A strong supporter of the procedural turn, the former President of the Court, Róbert Ragnar Spanó, has dubbed the latter element of this typology ‘process-based review.’ Arguing that the Court is moving into a new ‘age of subsidiarity,’ he asserts that the Court is beginning to take on a more ‘framework-oriented role when reviewing domestic decision-making.’  This review is process-based as the Court is increasingly ‘examining whether Convention principles have been adequately embedded into the domestic legal order and if so, whether certain material elements allow it to grant deference to national authorities so they can fulfil their duties as the primary guarantors of Convention rights.’ In other words, we are seeing a shift in the Court’s focus from evaluating the substantive impact of alleged violations on individual applicants to a amore process-orientated examination of how the law was applied and interpreted by national authorities.

The application of process-based review can be seen very clearly in a string of recent cases under Article 8 dealing with the expulsion of settled migrants. (See for example, Ndidi v the United Kingdom, Levakovic v Denmark, Munir Johana v Denmark, Khan v Denmark, Avci v Denmark) In these cases, the Court relies on the quality of domestic decision-making processes when reviewing the proportionality or reasonableness of the contested measures, placing an emphasis on the procedural question of whether national authorities have carefully applied the case-law of the Court and sufficiently identified and balanced the relevant interests in deciding whether the expulsion measure in question was proportionate to the aim pursued – and thus meeting the requirements of Article 8.2. Where national authorities show that they have done so, the Court defers to their substantive judgment in the specific case.

Commentators have identified both significant risks and significant advantages which can be associated with this process-based approach. On the one hand, it can be argued that it could lead to a diminishing of legal accountability for human rights in Europe by creating check-box style approach to rights protection. Furthermore, it could pose a particular risk to the rights of minorities whose voices may be underrepresented in democratic processes at the domestic level – as seen for example, in the much criticised in S.A.S. v France ruling. Here, the Court’s adoption of a process-based approach led it to accept the compatibility of a ban on face coverings with the ECHR – despite convincing submissions from several third-party interveners, as well as the applicant, who highlighted that certain Islamophobic remarks marked the debate prior to the adoption of the law (para 149) and cited research showing that it led to the social exclusion of Muslim women who wore the full-face veil, rather than promoting greater integration.

Returning to the case at hand, the issue is not that Mr. Otite or the voices of settled migrants (another minority group) were not taken into consideration during the domestic processes within which the Immigration Rules were developed – although this may well have been the case. Rather, my criticism of the Court’s approach is rooted in the fact that it serves to undermine one of the key purported benefits of procedural review: namely, that it could serve to improve the human rights protection available at the domestic level by empowering domestic authorities to take on a more decisive role in the adjudication of human rights cases and rewarding those who properly engage with the Convention and its case law with a more lenient style of review. Thus, individuals would not be forced to pursue a case at the international level in order to seek redress, making the search for justice much more accessible.

In Otite, the Court identified and emphasised certain flaws in the balancing exercise conducted at the domestic level. It found that the balancing exercise was conducted with reference to national law rather than the requirements of Article 8 and the associated case law, which is necessary to show proper engagement with the Convention at the domestic level. For example, the Upper Tribunal did not consider the difficulties the applicant’s family would face if they moved to Nigeria with him (para 44). Furthermore, insofar as it considered the factors identified in Boultif v. Switzerland and Üner v. the Netherlands, it did so without explicit reference to those judgments and with a view to determining whether Mr. Otite’s expulsion would be ‘unduly harsh’ on his family and whether there existed any ‘very compelling circumstances’ based on which his appeal should succeed. (para 45)

The inadequacies the Court identified at the national level led it to conduct its own substantive assessment of the case, ultimately finding in favour of the state. While from one perspective this is understandable – Mr. Otite had committed serious crimes and presumably did have the requisite ties with his country of origin to set up a life there – it does not align with the incentivising function of process-based review. If the Court wishes to send a message to domestic authorities encouraging greater engagement with the Convention (as it appears to have done in past expulsion cases) then perhaps it should have simply found a violation of Mr. Otite’s rights under Article 8 given that the proportionality of his expulsion was not properly assessed at the domestic level. Such a finding may not necessarily have precluded his eventual deportation but it would have required the domestic authorities to at least review the case afresh in a manner compliant with Convention standards. This would have sent a much stronger signal as to the importance of proper and Convention complaint procedures, while simultaneously allowing the Court to continue to acknowledge and maintain the ‘fundamentally subsidiarity’ role it regularly states it holds within the Convention system. (See for example Thorn v. Sweden, para 48;  Vavřička and Others v. the Czech Republic, para 273; Q and R v. Slovenia, para 104)

Conclusion

It is clear from the case law that a ‘procedural turn’ has emerged in the jurisprudence of the ECtHR and that a more procedural or process-based style of review is regularly being applied in Article 8 cases on the expulsion of settled migrants. In general, this has been seen to lead to greater deference to domestic authorities who are seen to comply with the requirements of the Convention and the caselaw. The expected flipside to this, is that flaws in domestic proceeding would lead to stricter review and findings of a violation. Thus, it is somewhat surprising that despite identifying failings at the domestic level the Court continued to reach a finding of no violation in Otite. The literature suggests that one of the key merits of process-based review is increased engagement with the Convention at the national level – a benefit that Otite arguably serves to undermine.  Arguably, regardless of the outcome which should have been reached based on a substantive assessment of the applicant’s conduct and personal circumstances, from a procedural perspective, the flaws in the domestic balancing process identified by the Court, should have led to a finding of a violation. Such a result would have reinforced the importance of proper consideration of Article 8 requirements at the domestic level and incentivised greater engagement with Convention in future cases.

The post <em>Otite v the United Kingdom: What about the incentivising function of process-based review?</em> appeared first on Strasbourg Observers.

By Dr Alice Margaria

What is the role of and what is expected of a (legal) father? From a legal perspective, this question that goes well beyond the scope of family law, and the recent judgment in Beeler v Switzerland, decided by the Grand Chamber on 11 October 2022, is a case in point. In this case, the Court was called upon to decide whether terminating the payment of a widower’s pension when the youngest child turned 18, whilst the same pension remains payable to a widow, amounts to discrimination on the grounds of sex in breach of Article 14 taken in conjunction with Article 8. In the footsteps of the Chamber, the Grand Chamber ruled in favour of Mr Beeler, an active father who had left paid employment to raise his young children after their mother’s death. This case foregrounds the structural pervasiveness of gender stereotyping in relation to parenting and care, and invites broadening conversations about legal fatherhood to the realm of social law as a channel through which images of fathers are shaped, and therefore can also be reshaped. The Grand Chamber’s reasoning highlights the by now uncontested unacceptability of gender stereotypes as justifications for differential treatment between men and women. At the same time, it draws our attention to less straightforward matters of gender justice, such as the timing of formal equality measures and the thin line between beneficial positive discrimination, on the one hand, and harmful differential treatment based on stereotyping, on the other hand.

Facts

In 1994, following the death of his wife, Mr Beeler decided to leave his job to raise their two children, who were 21 months and four years old. In 1997, following a revision of the Swiss pension system, Mr Beeler was granted a widower’s pension (before then only widows were entitled to a survivor’s pension). According to the relevant law, however, the payment was terminated when his younger daughter reached the age of 18 (Article 24(2), Federal Law on Pension Insurance and Survivors). At that time, Mr Beeler was 57 years old and had not been in paid employment for over sixteen years. He was not yet eligible for an old‑age pension and, he submitted, no longer able to find a job.

The applicant challenged the termination of his widower’s pension as being discriminatory, arguing that he had been treated less favourably than a widow with children above the age of 18, who remained eligible for a widow’s pension. The Cantonal Court noted that the conditions for entitlement to a pension applicable to widows and widowers were indeed different, and prima facie incompatible with the principle of gender equality enshrined in the Swiss Constitution (para. 15). Yet, only the legislature could change the state of affairs and, during the tenth revision of the old-age and survivor insurance system in 1997, Parliament had decided against amending Article 24(2) on the ground that, since there were still relatively few stay-at-home husbands, they could be expected to resume paid employment once their child-raising duties ended (para. 15). Mr Beeler lodged an appeal before the Federal Court of Justice, alleging a violation of Article 14 in conjunction with Article 8 ECHR. The Federal Court noted that Article 24(2) made a distinction on the grounds of sex which was not necessary for either biological or functional reasons and, therefore, was not justified (para. 17). Nonetheless, following the failed reform attempts, Article 24(2) remained in force and had to be applied to the case at hand. Mr Beeler’s complaint was subsequently heard by the third section of the European Court of Human Rights, which found a violation of Article 14 taken together with Article 8. In 2021, the case was referred to the Grand Chamber at the Government’s request.

Decision

The Grand Chamber found that the applicant had suffered a violation of Article 8 taken in conjunction with Article 14. Before delving into the merits, the Court had to clarify whether Mr Beeler could avail himself of the protection of Article 8. This part of the judgment will be discussed in a forthcoming blog post by Dr Maija Dahlberg. For now, it suffices to say that, given the purpose of a widow’s or widower’s pension and the tangible repercussions it had had on the applicant’s family life, the Court considered the benefit at stake to be closely linked to the applicant’s family life and, accordingly, declared Article 8, taken in conjunction with Article 14, applicable.

Moving on to the merits of the case, the Court held that the applicant stopped receiving the widower’s pension ‘simply because he was a man’ (para. 101). His pension was indeed terminated when his younger child reached the age of 18, whilst – according to domestic law – widows retain their entitlement also after that moment. Even though he was in an analogous position to a woman in terms of his subsistence needs, therefore, he was not treated equally to a woman/widow (para. 102).

This difference in treatment – so the Grand Chamber continued – was not objectively and reasonably justified. According to its own established case-law, very weighty reasons have to be put forward to justify a difference of treatment based exclusively on sex (para. 95). Even if states are usually granted a wide margin of appreciation in the field of social welfare, therefore, where a difference in treatment is based on sex, the margin is narrow. Referring to earlier case-law concerning parental leave entitlements (Petrovic v Austria and Markin v Russia), the Grand Chamber observed that European societies have moved towards a more equal share of childcare responsibilities between men and women, and the role of men as childcarers has gained increasing recognition (para. 108). Moreover, the Court recalled, the advancement of gender equality remains a major goal in the Council of Europe. It follows that references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justifications for a difference in treatment based on sex (para. 95). In this specific case, therefore, the Government could not rely on the breadwinner model to justify a legislative provision that places widowers in a less favourable position than widows (para. 110).

The Grand Chamber placed particular emphasis on the remarks made by the Federal Supreme Court, in particular on the fact that it had considered the rules in question to breach the constitutional principle of gender equality. The Federal Court’s assessment as well as the multiple attempts to reform the law showed – in the Court’s view – that ‘the old “factual inequalities” between men and women ha[d] become less marked in Swiss society’ (para. 113). The contested legislation, the Court added, contributes to ‘perpetuating prejudices and stereotypes regarding the nature or role of women in society and is disadvantageous both to women’s careers and to men’s family life’ (para. 113). Looking at the specific situation of the applicant, the Court noted that, given his age and extended absence from paid employment, he would not have had less difficulty in returning to work than a woman in a similar position and the termination of the pension would not have had less impact on him than on a widow in comparable circumstances. Hence, the unequal treatment he had suffered was not considered to have been reasonably and objectively justified, and a violation of Article 8 in conjunction with Article 14 was found. 

It’s an Article 8 case: challenging the public-private divide

A significant part of the judgment is concerned with defining the ambit of Article 8 and, whether and according to which factors, that provision can be considered applicable in the context of social welfare benefits. This question is also at the core of the joint dissenting opinion of Judges Kjølbro, Kucsko-Stadlmayer, Mourou-Vikström, Koskelo and Roosma, who expressed concern as to the majority’s expansion of the applicability of Article 8 and the broader ‘risk of creating an increasingly dysfunctional court through the pursuit of overreaching ambitions of substantive omnipotence’ (para. 19).

While waiting to read Dr Maja Dahlberg’s thoughts on this aspect of the case, a brief remark from a purely gender perspective will be made. Qualifying the termination of a widower’s pension as pertaining to the right to respect for family life contributes to challenging the public-private divide, which runs through liberal thought and practice and has been central to centuries of critical feminist writings (see e.g. here). According to this dichotomy – which rests upon and supports a gender division of labour – unpaid care and paid employment constitute two separate and opposite spheres which, in turn, are inhabited by women and men respectively. By considering Mr Beeler’s complaint to fall within the ambit of Article 8, the Court acknowledges that, contrary to the public-private dichotomy, the organisation of paid employment and unpaid care are two sides of the same coin, which mutually influence one another. It follows that how a state deals with pensions inevitably restricts and more generally affects how childcare is organised and practiced – whether in a couple or after the death of a spouse, as Mr Beeler’s experience shows.

Fathers as carers

As anticipated above, this decision is about legal fatherhood. Fitting into a growing case-law under Article 8 alone or in conjunction with Article 14 where the Court tells us what is to be expected of (legal) fathers in today’s societies, this decision is emblematic of an increasing, yet slow, re-orientation of legal systems towards ‘active fatherhood’.

By finding a violation, the Court unties fatherhood from breadwinning. The Grand Chamber is of the view that providing for different entitlements to survivor’s pension depending on whether the beneficiary is a widow or a widower constitutes sex discrimination. In developing its reasoning, the Court could fruitfully build on the well-known Grand Chamber’s judgment in Markin v Russia, where a military serviceman complained about his exclusion from a three-year parental leave entitlement and related allowance – which domestic law reserved to servicewomen. In that case, the Grand Chamber had contested the Russian Constitutional Court’s view that excluding servicemen from parental leave entitlements was justified by the limited participation of women in the army and the special role of mothers in the upbringing of children, and found a breach Article 8 in conjunction with Article 14. The anti-stereotyping approach developed in Markin is reiterated in Beeler, where – just like in Markin – the Court was confronted with a legislative provision grounded in a stereotypical view of mothers as primary carers and men as primary breadwinners. In the footsteps of Markin, the Grand Chamber affirms that gender stereotypes around care based on the male breadwinner model could not justify a difference in treatment, and that the contested provision was liable for perpetuating gender stereotypes to the detriment of both fathers and mothers.

What differentiates this judgment from the precedent in Markin is the Court’s factual corroboration of the anti-stereotyping approach in Beeler. The paradox of Markin – at least in my view – is that the Grand Chamber embarked on what was at that time a ground-breaking anti-stereotyping approach without grounding this approach in the actual circumstances of the case at hand and, thus, in abstracto. Even if the story of Mr Markin offered some opportunity in this regard, the Grand Chamber did not seem to find it necessary nor relevant to include case-specific remarks pertaining to the applicant’s relationship with his children and to emphasise the active participation of Mr Markin, a single divorced father, in his children’s lives, although these were inferable from the circumstances of the case as reported in the judgment (e.g. the fact that – after divorce – the children had been living with the applicant, para. 13). Differently, in Beeler, the anti-stereotyping approach appears supported by direct and frequent references to the actual role played by the applicant father in the life of his children. At several points in the judgment, the Court mentions that Mr Beeler had decided to leave paid employment and stayed home to take care of them for a period of sixteen years on a full-time basis (paras 10, 79, 114).

As I have argued before, the Grand Chamber’s judgment in Markin v Russia may be read as endorsing an understanding of fatherhood which reflects the ideology of ‘new fatherhood’, according to which fathers are not just breadwinners but also carers. In other words, the Court in Markin does not contest breadwinning as the role of fathers, but ‘merely’ adds the new layer of care to its understanding of legal fatherhood. Beeler takes an additional step in the reconstruction of legal fatherhood. The Grand Chamber’s judgment displays an even stronger emphasis on paternal care and, groundbreakingly, constructs fatherhood as prescinding from any breadwinning role. A father deserves legal protection under Article 8 and 14 in his ‘mere’ capacity as full-time child-carer. Nothing more is needed. 

Listening to the recording of the hearing before the Grand Chamber, one cannot but notice a certain synergy between the image of the (legal) father as (sole) carer emerging from the judgment and the way in which the case was argued by Mr Beeler’s legal representatives. As asserted by attorney Dr Fanny de Weck, ‘Mr B was directly punished for doing what the Swiss legislator expects from women but not from men, which is caring for the household and children’ (25’). Her pleading includes also a powerful quote by Ruth Bader Ginsburg, acting as an attorney in the case of Weinberger v Wiesenfeld (1975) where the US Supreme Court unanimously held that gender based discrimination permitting widows but not widowers to collect survivor’s pension was unconstitutional: ‘… Congress had in mind male breadwinners, male heads of household and the women and children dependent upon them. Hence … a family where a parent dies gets more when the breadwinner is male and the household is run by the mother and less when the household is run by the father. This discriminates all family members in the sense that a nurturing father is treated as he did not perform the function he should; a mother is treated as her work is of secondary value and a motherless infant is not entitled to the personal care of his sole surviving parent.’ This well-chosen quote captures the true feminist spirit of the case as framed by the applicant’s representatives. This framing, I argue, made space for the narrative and image of Mr Beeler as the sole carer of his young children and lent support to the Court’s departure from a conventional understanding of fatherhood centred around breadwinning and away from care.

When is the time for (formally) equal provisions?

Another question which is central to the case of Beeler is: is the time ripe for legal provisions which provide identical entitlements to men and women – in this case to survivor’s pension – especially in the still highly gendered domains of care and paid employment? The Government’s response is ‘no’: in spite of the changing position of women in the labour market, widows still needed a ‘slightly higher level of protection’ than widowers (para. 89). The difference in treatment Mr Beeler complained about was therefore meant to – in the Government’s words – ‘compensate for the less favourable situation of women on the labour market and the persisting unequal distribution of household tasks’ (para. 91). The Grand Chamber was of the opposite view: ‘the considerations and assumptions on which the rules governing survivor’s pensions had been based over the previous decades are no longer capable of justifying differences on grounds of sex’ (para. 113, emphasis added). Also Judge Keller in her concurring opinion to the Chamber judgment had written that ‘a difference treatment of widows and widowers as exemplified in the present case is no longer justifiable today’ (para. 1, emphasis added). Regardless of the answer to the first question (is it time?), a follow-up question is: what is the cut-off point? What makes provisions directed to support women in their role as primary caretakers turn into a source of harm to women and gender equality more broadly, crystallising rather than challenging a gendered division of labour?

These are questions which run through many of the past and contemporary debates around women’s rights, and gender justice more broadly. To give an example from the family law context, a question that is more and more often raised is: does it still make sense and is it still desirable to differentiate between legal motherhood and legal fatherhood, or shall these legal categories be replaced with the gender-neutral ‘parenthood’? Some legislatures – in Ontario, for instance – have already opted for this terminological change to better accommodate the diversity and complexity of present family realities. At first sight, these two examples – entitlements to survivor’s pensions and legal parenthood terminology – might not seem to have much in common. Yet, at the conceptual level, the concerns they trigger are quite similar, if not the same: how to reconcile the past, which is still quite present, with the goal of gender equality and inclusivity? How to take account of slowly shifting patterns, but not yet widespread practices and realities, in a way that disrupts but at the same time is mindful of traditional patterns? In fatherhood terms, how to take account of and promote ‘active fatherhood’ in a way that does not ‘neuter’ mothering/hood – i.e., does not neglect the gendered nature of care and, therefore, the structural disadvantages of mothers as primary caretakers?

Rather than giving answers to these fundamental questions, this post ends by calling into question the boundaries of law and society, which are intimately linked to reflections on the role of the Court vis-a-vis social change. Rather than asking ‘is the Court’s role to reflect or to trigger social change?’, we should probably free our mind from misleading dichotomies (law/society; reflect/transform) and start looking at the ECtHR case-law and society as co-constitutive spheres, in constant dialogue with one another as peers. This approach would, at the very least, make us see that there is a plurality of norms at play and that delivering (gender) justice requires delicate manoeuvres and acts of (re)balancing between human rights provisions, domestic laws and society’s norms.

The post Freeing fatherhood from breadwinning – Are we ready for (formal) equality? Beeler v. Switzerland appeared first on Strasbourg Observers.

by Balázs Majtényi

On 10 November 2022, the European Court of Human Rights (ECtHR) published its decision in the case of Bakirdzi and E.C. v. Hungary. According to the judgment, the representation of national minorities in the Hungarian Parliament violates the right to free elections (Article 3 of Protocol No. 1 to the Convention) in conjunction with the prohibition of discrimination (Article 14 of the Convention). A summary of the judgment has already been published on Strasbourg Observers and Verfassungsblog, so this post will not seek to introduce the judgment, but rather focus on its shortcomings.

I claim that the quality of the court’s argumentation is doctrinally weak and demonstrates an inadequate knowledge of the Hungarian law. In order to underline this, I give examples of the court either ignoring the law in force, or summarising the relevant legal provisions without addressing them in the reasoning. When I criticise the decision, I do not mean that the ECtHR was mistaken about the conclusion that the Hungarian rules on the representation of minorities in parliament are in breach of the Convention. Instead, such a finding should have been based on consistent reasoning and proper knowledge of the Hungarian political system and legislation.

The real problems of the minority electoral system cannot be understood without putting it into context, i.e. without taking into account the fact that the court is examining the rules of an electoral autocracy, in which votes of ethnic Hungarians beyond the border and that of national minorities from Hungary are used to secure the parliamentary majority of the Fidesz-KDNP.  After 2010, the Hungarian authoritarian regime created a strong dependence system for minority self-governments and Hungarian kin-minority organizations. In the case of national minorities, this is largely based on the followings: registration as a national-minority voter is based on self-identification, people belonging to the majority can also decide to register and vote for minority lists. This dysfunction effectively hinders the self-representation of minorities and has a long history in minority self-government elections in Hungary. The operation of minority self-government institutions, their financing and control depend to a significant extent on the government. Minority lists are put together by the minority self-governments. Just an example to illustrate this strong dependence system: the leader of the National Roma Self-government’s list for the 2014 elections was Félix Farkas, a member of Lungo Drom, a Roma political party, being an electoral ally of the Fidesz-KDNP. 

The following post intends to highlight the broader context of the Hungarian electoral rules which might provide a better understanding of the problems of the minority voting system. In this sense, it aims to complement the judgment.

Parliamentary representation of minorities and voters’ free political choice

The Court lacks sufficient knowledge of Hungarian law and the functioning of the political system. When listing the relevant provisions of the constitution, the judgment fails to mention the Article of the Fundamental Law that deals specifically with the parliamentary representation of minorities. Article 2 (2) of the Fundamental Law states: “The participation of national minorities living in Hungary in the work of the National Assembly shall be regulated by a cardinal Act.” Article XXIX (2) which was quoted in the decision deals with the self-governments of national minorities.

The Court’s summary of Hungarian electoral law is misleading, as it states “National minority voters can only vote for the minority list of the national minority they belong to and for single-member district candidates, whereas other voters (emphasis is mine) vote for a candidate in a single-member district and for a party list” (para. 6). In reality, ethnic Hungarians living outside the borders (non-resident Hungarian citizens) cannot vote for individual candidates in single member districts, but only for the party lists. The half vote of non-resident citizens violates the “one person, one vote” principle and that of the equal weight of all votes. This is also problematic because citizenship in constitutional democracies also means equal membership in a political community.

Paragraph 61 also misconstrues Hungarian law when it says that those who have registered as a member of a minority “had neither the choice between different party lists nor any influence on the order in which candidates were elected from the national minority lists.” In fact, everyone is free to choose whether to register as a member of a minority, and may even opt out any time before the polling day in order to vote for the party list. Furthermore, the Court also disregards that it is the minority self-government – elected by members of the minority – that decides on drawing up national lists and determines the candidates as well as their order (for example, in the last parliamentary elections in 2022, the Roma minority self-government decided not to draw up a list). Drawing up the minority list requires the recommendation of at least 1% of the persons registered as voters of the given nationality, but no more than 1500 recommendations. Therefore, unlike in the case of majority voters, minority voters and local minority self-governments decide on the existence and composition of the minority list.

The Court falsely claims that “the number of minority voters belonging to the same national minority in Hungary was not high enough to reach the preferential electoral threshold even if all voters belonging to that national minority were to cast their vote for the respective minority list” (para. 57). The judgment does not address at all what has happened in the last eight years, e.g. that the German minority list gained enough votes to send an MP to the Parliament in both 2018 and 2022. The Court seems to be unaware that the German minority elected an MP who, by the way, used to be a FIDESZ member of a local council before, and has since then voted with the FIDESZ government in almost every question. As the example of the parliamentary representation of the German minority shows, the statement of the Court cannot be generalised to all the 13 recognized national minorities in Hungary.

Furthermore, a legal provision cited by the judgment is later not addressed in the reasoning part. Namely, that any national minority which drew up a national minority list but failed to win a mandate shall be represented by its non-voting spokesperson in the parliament. If the court argues that the current rules of minority voting fail to guarantee real parliamentary representation, it should have also added that the institution of the spokesperson does not constitute genuine representation either.

Secrecy of votes and anonymity

The court finds that the secrecy of the votes had been violated too: “all present in the polling station at the relevant time, especially members of the relevant election commissions, would come to know that the elector had cast a vote for the candidates on the national minority list” (para. 70). The court here finds a real problem, but for the wrong reasons as it explains in the same paragraph: “As is apparent, the arrangement put in place for minority voters allowed for the details of how a national minority voter had cast his or her ballot to be known to everybody, and for information to be gathered about the electoral intention of minority voters as soon as they registered as such” (para. 70). This is simply false. Data on minority affiliation is subject to special protection, so even minority self-governments do not have access to minority voters’ data after the elections, and election documents including ballots are destroyed after the elections. Making the ballots public to everyone would be a serious breach of data protection rules.

In any case, the court’s argumentation on data protection and secrecy is not strengthened by the fact that the Court itself publishes even a number of personal data of the applicant requesting anonymization. The judgment includes the initials of the name of the applicant who requested anonymity and the full name of the other applicant, the applicants’ year of birth and place of residence, the national minority to which they belong, and the minority list they voted for, and also their sex. If one fears the misuse of her/his personal data, it would be desirable if personal data did not appear in the judgment. The data disclosed in the judgment could be used to identify someone, in particular if this person is active in minority public life, given that he is from a very small national community. The obvious point of anonymity would be to delete the personal data altogether.

Judge Ktistakis argues confusingly in his partly dissenting opinion that the applicants should have been awarded non-pecuniary damages. One of his arguments is that the Armenian applicant requested anonymity and the court’s reluctance to make an award for non-pecuniary damage is likely to discourage him and other members of the Armenian minority from fighting for law enforcement. However, members of minorities can fear from publicity in general, both in the context of voting and in the context of litigation, i.e. there is no necessary correlation between the two types of fears. It is unclear why anonymity is a relevant factor in awarding damages in this case. If the Court finds the same human rights violation in relation to the Armenian and Greek applicants, it cannot make a difference between them whether they are awarded non–pecuniary damages or not.

Lack of reasoning regarding the violation of discrimination

Furthermore, the Joint Concurring Opinion of Judges Bošnjak and Derenčinović rightly criticises the judgment because of “the almost complete lack of reasoning” regarding violation of Article 14 (para. 1). The court’s reasoning links the violation of the prohibition of discrimination to the electoral threshold for minorities and to wasted votes in a way that is difficult to follow. According to the law, the threshold for candidates on minority lists is one-quarter of that of ordinary party lists. As the concurring opinion states: “Indeed, the system as it now stands does not guarantee the political representation of minorities in the form of a seat in Parliament. However, this is not a requirement under the relevant international standards” (para. 7). Minority representation is difficult to be established without preferential parliamentary threshold, since it is difficult to argue, for example, that two minority voters or a hundred minority voters, even if active politically, should have parliamentary representation. A regulation that requires a certain number of votes from minorities to reach the parliamentary threshold is of much less concern than representation regardless of the number of votes. In the case of preferential parliamentary representation, the minority should by definition achieve less votes than the majority, but a legitimate differentiation is essentially a national-political decision.

Finally, the argument that the preferential representation of national minorities would be in violation of the prohibition of discrimination is particularly surprising because this type of parliamentary representation which exists mainly in Eastern and Central Europe, was introduced by these countries to comply with international standards (e.g. article 15 of the Framework Convention for the Protection of National Minorities) under pressure from the European institutions, including the Council of Europe.

In a previous electoral case from Hungary (Application no. 48145/14 Zsófia Vámos against Hungary) in 2015, the Court examined the rules of voting from abroad, and it did not find any violation of the Convention. The challenged rules grant the possibility to vote by post only for ethnic Hungarians residing beyond the border, but not for Hungarians working and living abroad while keeping a permanent address in Hungary, these latter ones are not eligible to cast their ballots by mail, but only at – often far away – embassies/consulates. While the Court argued that “having a permanent address in the country is an objective criterion” and a difference in treatment pursues the “legitimate aim of organising the voting system in a rational manner” (para. 19), it again failed to take into account the legal and political environment. Namely, that the current system of postal voting was introduced to secure the parliamentary majority of the incumbent government, and it lacks transparency and prone to electoral fraud in several ways. While the overwhelming majority of ethnic Hungarians beyond the border vote for FIDESZ, Hungarians working mainly in Western countries, who can cast their ballots only in embassies, are not (in the 2014 elections Fidesz-KDNP gained 95.5 percent of voters of ethnic Hungarians beyond the borders). Taking all these into account would have resulted in the finding that the system of voting from abroad violates the prohibition of discrimination on the basis of political opinion.

Conclusion

Every judicial body is expected to be able to find the relevant legislation and interpret it properly. If a court aspires to be a European Constitutional Court as the conscience of Europe, it is important that this ambition is matched by high quality judgments, even in cases where the electoral rules of an electoral autocracy are being decided on.

The post The right answer without a reasonable argument? The shortcomings of Bakirdzi and E.C. v. Hungary appeared first on Strasbourg Observers.

By Tobias Mortier

The technique of retrospective legislative regularisation is a disputed one. While the technique takes on different forms in the Belgian legal system, it generally involves the legislator retrospectively regularising a legislative or executive act – and thereby (purposely) influencing pending legal proceedings. Due to its sensitivity in light of the rule of law and fair trial principles, the European Court of Human Rights (‘the ECtHR’) understandably imposes a more exacting requirement in terms of what reasons a national legislature may advance in order to justify its decisively weighing in on judicial proceedings; legislatures must adduce ‘compelling public-interest reasons’. This standard is echoed in the case law of the Belgian Constitutional Court as well. However, the Belgian Constitutional Court has actually exhibited a large amount of deference vis-à-vis the legislature when assessing cases involving retrospective regularisation – and from the judgment in the Grand Chamber case of Vegotex International S.A. it appears as though the ECtHR does not in fact approach retrospective legislative interventions with the heightened level of scrutiny with which it purports to assess it either.

Facts

The applicant company, Vegotex International S.A., is a Belgian fashion manufacturer. In 1995, tax authorities found irregularities in the applicant’s tax return for the 1992 fiscal year and accordingly notified the applicant of their intention to impose a 50% tax surcharge on account of the offence of attempting to evade payment of tax. The applicant’s subsequent objections were dismissed and in October 2000 the tax authorities served the applicant company with a demand for payment. Even though the overall amount due was still subject to dispute, the demand was served solely in order to interrupt the limitation period (which sets a time-limit for the initiation of judicial proceedings). This was common practice at the time. The applicant subsequently brought proceedings before the Antwerp Court of First Instance, but both this court as well as the Antwerp Court of Appeal upheld the tax surcharge, with the latter explicitly finding that the State’s entitlement to recover the tax had not become time-barred.

In between these two judgments, the Belgian Court of Cassation had handed down a judgment (later confirmed by three other judgments) in which it had declared the administrative practice of serving demands for payment in the absence of an amount ‘indisputably due’ to be unlawful. In the present case, this would have had the effect that the applicable five-year limitation period would already have expired by the time the Court of First Instance handed down its first judgment. Facing the prospect of a large amount of disputed tax claims becoming time-barred pursuant to the Court of Cassation’s judgment, the legislature felt compelled to consolidate the disputed practice. Hence, the Miscellaneous Provisions Act of 9 July 2004 (MPA) was enacted, in which section 49 ensured that a demand for payment would interrupt the limitation period for the recovery of tax surcharges even where the total amount of the tax debt was not ‘indisputably due’. On the advice of the Council of State, this section was deemed an interpretative legal provision, entailing that it could be applied retrospectively. When the applicant appealed to the Court of Cassation on points of law, in relation to the Court of Appeal’s finding that the limitation period had been suspended,  the Court of Cassation consequently substituted the grounds of appeal for section 49 MPA and applied this provision retrospectively to the case at hand, resulting in the eventual dismissal of the applicant company’s appeal.

Judgment

The retrospective nature of the provision constituted the crux of the case before the ECtHR. Firstly, the ECtHR ruled that, unlike its civil equivalent, the criminal limb of Article 6 was applicable with respect to the tax surcharges imposed on the applicant. This allowed the ECtHR to continue its review under Article 6. As a rule of thumb, it reiterated that

‘the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute, save on compelling grounds of the general interest’. (para. 92)

The ECtHR went on to identify a number of  such ‘compelling grounds’, including the state interests in combating large-scale fraud, avoiding creating arbitrary discrimination between taxpayers and protecting legal certainty. It noted that the Belgian Constitutional Court had found in its judgment that according to long-standing administrative practice the limitation period had ‘always been interrupted’ in respect of disputed tax debts – that is until the Court of Cassation ruled otherwise (para. 110). However, the Court of Cassation is unable to limit the temporal power of its judgments, so that the legislature quickly signalled its intention to rescind said judgment. Given the legislature’s expeditiousness, the ECtHR ruled that the applicant company never could have truly expected to have its tax debt become time-barred. Instead, the applicant company had ‘hoped rather than expected to benefit from this windfall’, which refutes the existence of any legitimate expectations on its part (para. 119). This led the ECtHR to conclude that the principle of legal certainty had not been undermined.

This conclusion extended to the effects of the legislative intervention as well; since section 49 was applied retrospectively, it had the effect of reviving limitation periods that could be considered to have already been expired. This would normally violate Article 7. However, the ECtHR distinguished the present case from its previous rulings (see most notably this one) by emphasising that the expiry of the limitation period had not yet been established by a judicial decision with res judicata effect. In the absence of such a ruling, and since tax cases were to be separated from the ‘hard core’ of criminal law, the ECtHR ruled that Article 6 guarantees should not be applied as rigorously, thereby circumventing the need to apply Article 7. No violation could therefore be found in respect of the legislature’s retrospective intervention. The ECtHR reached a similar conclusion in regards to the substitution of grounds by the Court of Cassation, thereby endorsing the Chamber’s finding that this had not given rise to any issues as regards the equality of arms between the parties. However, the Grand Chamber did find a violation of Article 6 with respect to the reasonable-time requirement, ruling that the Belgian Government had failed to substantiate its assertion that the complexity of the case had caused the overall lengthiness of the proceedings.

Commentary

While it remains rather uncommon in Belgian law, the concept of retrospective legislative regularisation (known as ‘wetgevende validatie’ or ‘validation législative’) has gone relatively underreported for long. Particularly little attention has been paid to the position of individual applicants in such cases. However, as exemplified by the present case, this has the potential of yielding perverse consequences. I previously wrote a paper in which I dissected the Belgian Constitutional Court’s inconsistent approach to retrospective legislative regularisations, and in particular the little regard it has for the applicants’ interests in this respect.[i] Hence, this blogpost draws inspiration from the findings in said paper to provide some background information from a constitutional law perspective, before we explore the flaws in the ECtHR’s reasoning in the present case.

Retrospectivity and the ‘compelling reasons’ test

Retrospective legislative interventions determinatively impair several core principles which govern a democratic State. The first one, the principle of legal certainty, plays a paramount role in protecting the procedural position of individuals; even the Court has admitted that it is inherent to the Convention acquis itself (see here, para. 238). Applicants have certain legitimate expectations in terms of the lawfulness of their actions and the functioning of the judicial process. By unilaterally altering the content of the contested regulation, the government effectively impairs these expectations. This unilateral aspect further impedes on the equality of arms principle as well. Retrospectively regularising an act or decision is an option only available to the government in order to protect their own interests; individual applicants do not have a similar option at their disposal. On a more fundamental level, this also impacts the separation of powers between the legislative branch and the judiciary (for a more extensive explanation – in Dutch – see here, here and here).

It is with these principles in mind that the European Court has adopted the ‘compelling reasons’ test, so as to avoid that national legislatures revert to this technique all too easily. This test urges legislatures to not just simply pursue any aim; their interest in pursuing this aim through retrospective regularisation must be a compelling one. However, at the level of the Belgian Constitutional Court, this paradoxically results in more deference vis-à-vis the legislature, whereby the Court accepts just about any public-interest reason advanced by the legislature – and simultaneously heavily trivialises and subsequently repudiates every interest which applicants seek to protect. This arguably puts applicants in an incredibly disadvantageous position throughout the judicial process, which, one might consider, actually runs counter to what the ECtHR had originally envisaged when it imposed the compelling reasons requirement. However, with this case, it appears as though the ECtHR has taken a similar stance – and one where it goes quite far in accommodating the legislature, as will be discussed below.

Promoting or encroaching on legal certainty?

In the present case, the ECtHR found it evident that the legislature aimed to counteract the effects of the Court of Cassation judgment in which it invalidated the administrative practice of serving demands for payment in cases where the tax debt was still subject to dispute, solely in order to interrupt the limitation period. According to its own case law, this should compel it to raise its scrutiny level and solely accept compelling public-interest reasons. For the record, I do not wish to argue against all cases where retrospective interventions strive to reinstate regulation in accordance with the legislature’s original wishes. However, Convention standards must be adhered to, and it appears as though the ECtHR was in fact willing to go to great lengths to accommodate the legislature instead of reviewing its arguments more stringently. This is most evident in two key aspects of the case: the disregard which the ECtHR had for the Court of Cassation judgment, and the ECtHR’s attitude towards the original limitation period.

With respect to the Court of Cassation judgment that gave rise to the legislature’s intervention, the ECtHR put a lot of emphasis on the ‘unexpected nature’ of said judgment (see paras. 117, 119 and 121). Admittedly, it is true that the practice of serving demands for payment with the sole view of interrupting the limitation period was long-standing among Belgian tax authorities. However, one must bear in mind that there already existed a certain level of disagreement as to the validity of said practice among lower courts (paras. 39 and 110). Furthermore, once a case makes it to the Court of Cassation, this Court’s role is not to rule on the facts; rather, it acts as a final arbiter in cases where the law was allegedly not respected – and in that capacity it sometimes must indicate the correct interpretation of a legal provision as well, even when this contravenes existing practices. While its case law is not officially binding, its interpretations of the law de facto become the sole correct ones, meaning that not following the Court’s case law is tantamount to misapplying the law. The Court of Cassation’s purpose in the Belgian legal system is therefore to promote unity in the interpretation and application of the law. In the present case, the Court of Cassation’s judgment must accordingly be understood as the termination of a persisting situation of legal uncertainty – and therefore as a source of legal certainty in regards to the recovery of unsettled tax debts (see also para. 49 of the dissenting opinion of Judges Spano, Kjølbro, Turković, Yudkivska, Pejchal, Mourou-Vikström and Felici).

With this in mind, the applicant company cannot and should not be blamed for expecting to be able to invoke this judgment in order to support its argument that the tax authorities’ claim in respect of it had become time-barred. Rather than a ‘windfall’, as the ECtHR put it, the judgment constitutes a final resolution to a long-lasting period of legal uncertainty, albeit one disadvantageous to the government. The fact that the legislature soon after the date of the judgment expressed its intention to restore the invalid administrative practice does not detract from the legitimacy of the applicant’s expectations in this respect. The legislature’s intention to rectify a legal wrong does not give it a free pass to have the case law of (one of) the highest domestic court(s) not be applied in respect of it – and it is problematic in light of the separation of powers for the ECtHR to suggest otherwise.

Another odd turn in the present judgment is the manner in which the ECtHR assessed the question of whether the authorities’ recovery claim had already become time-barred when the applicant commenced proceedings. The ECtHR found that the limitation period indeed could have been considered to be expired, meaning that the retrospective application of section 49 essentially revived it. Normally, Article 7 would preclude such a revival of an already expired limitation period – as the ECtHR recently explicitly confirmed in an Advisory Opinion. However, the ECtHR circumvented this prohibition on the revival of expired limitation periods by suddenly introducing an additional requirement; the expiry had to be established by a judicial decision with res judicata effect. Not only does such a criterion find no support in the ECtHR’s previous case law (as the dissenters rightfully pointed out, see para. 50), it would actually contravene one of the core reasons why limitation periods exist in the first place. The very raison d’être of limitation periods is to set a time-limit on bringing judicial proceedings for the sake of legal certainty; how then can their expiry be made dependent on the institution of them? Imagine a situation where the perpetrator of a crime has to go to court to ask for a judge to officially declare expired the limitation period for a crime with which they were never formally charged or for which they were never convicted; this sounds laughable at first glance, but this is what this res judicata criterion essentially comes down to.

Conclusion

From the parliamentary records it appears as though the budgetary repercussions of the Court of Cassation judgment constituted the primary motivation on the Belgian legislature’s part to intervene. However, the ECtHR has already stated several times that ‘[a] State’s financial interests alone do not, in principle, justify the retrospective application of legislation’ (see the references in para. 103). From this follows that respondent States must be able to invoke other considerations in addition to financial ones to justify the retrospective nature of their legislative interventions. In this case, this resulted in the government heavily relying on the state interest in preserving legal certainty. However, the fact that this led to the revival of an already expired limitation period and to the legislature essentially undermining the Court of Cassation’s authority would suggest that the retrospective regularisation furthered anything but legal certainty. The fact that the ECtHR endorsed the Belgian State’s reasoning regardless of the legal gymnastics this required, suggests that it attaches more importance to States’ financial interests than its standard formula in the context of retrospectivity may suggest – even if this paradoxically comes at the expense of legal certainty.

At times there may be a difference between the level of scrutiny which the ECtHR ought to apply according to its recurring formulas on one hand, and the level which the ECtHR applies in reality on the other. The case of Vegotex International S.A. appears to be one of these instances. Instead of raising its scrutiny level regarding the compelling nature of the interests adduced by the government, the ECtHR actually displayed an excessive amount of deference and even went so far as to contradict its own case law on the matter. Admittedly, determining how compelling a certain interest is, is a heavily context-specific task, which makes it nearly impossible for the ECtHR to apply a one-size-fits-all approach. However, it behoves the ECtHR to at least adhere to its own standards in doing so; otherwise, the compelling aim of preserving legal certainty might not only be impeded within the Belgian legal order, but across all Contracting Parties to the Convention as well.

[i] See Tobias Mortier, ‘The Belgian Constitutional Court’s heightened scrutiny in respect of aims pursued through retrospective legislative regularisation’ (forthcoming).

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By Eva Sevrin and Emma Várnagy

G.M. and Others v The Republic of Moldova concerns the imposition of abortions and contraceptive measures upon women with intellectual disabilities. In finding an Article 3 violation, the Court has not only added to its case law on reproductive rights, but also contributed to disability rights under the convention, most notably through foregrounding the importance of autonomous decision-making. In this post, we focus on two main take-aways. Firstly, we show that the Court embraces a rights- and agency-based approach in addressing reproductive rights of women with intellectual disabilities. Secondly, we argue that the judgment could have given more emphasis to the concepts of vulnerability and intersectionality by adding Article 14 to its considerations.

Facts

This case concerns the imposition of forced abortions and birth control measures on three women with intellectual disabilities of varying severity, who had not been deprived of their legal capacity, after a head doctor of the neuropsychiatric asylum where the women were residents raped them, between 1998 and 2007. The three applicants all claimed that they had not only been subjected to forced abortions, but that subsequently intrauterine contraceptive devices (IUD’s) were implanted against their will to prevent further pregnancies. The first applicant had been in her fifth month of pregnancy when she was forced to undergo an abortion.

All three applicants consecutively lodged criminal complaints in 2014 relating to both the forced abortions and the non-consensual birth control measures. A judicial ping-pong of refusals and appeals ensued where the public prosecutor repeatedly refused to initiate criminal proceedings. The prosecutor put forward that the termination of the pregnancies of the first two applicants were lawful, and that there was no evidence that the third applicant had ever been pregnant (§24, §28, §32, §36). The prosecutor further noted that at the time of the complaints, Moldavian national law did not require the patient’s consent for the termination of a pregnancy (while also adding that all three applicants did indeed agree to the procedures) (§28). As a result of separate criminal proceedings, the head doctor was convicted in 2019 of raping sixteen female residents in total, including all three applicants.

This case is but one example of the overall context where women with intellectual disabilities are “often treated as if they have no control, or should have no control, over their sexual and reproductive choices”.

Judgment

The applicants put forward a complaint under Article 8 ECHR (right to respect for private and family life), the ‘standard’ article for complaints relating to non-consensual medical proceedings. However, the Court reclassified the case and assessed the issues at hand under Article 3 (prohibition of torture, inhuman and degrading treatment). The Court has done this before when the medical treatment at hand could be seen as intrusive (for example in Akopyan v Ukraine) or when the person concerned belonged to a vulnerable group (for example in V.C. v Slovakia). The Court stated that both the alleged forced abortions and forced contraception fell within the ambit of Article 3, due to the invasive nature of the medical interventions in combination with the applicant’s vulnerability, described by the Court as “resulting from such elements as their gender, disability and institutionalisation” (§89).

The Court held that there has been a violation of Article 3, both in its procedural and substantive aspects. Regarding the procedural violation, it noted that the Moldovan authorities had failed to carry out an effective investigation (§106) despite the applicants’ repeated appeal against the public prosecutor’s refusal to investigate the facts. As the applicants made arguable claims about the non-consensual procedures, further steps should have been taken by the authorities (§102). Failing to go beyond consulting the applicants’ medical files, by for example conducting interviews with other residents, the Court found the investigations had been unsatisfactory (§103-4).

The Court next took a twofold approach to assessing the substantive limb of Article 3. First, it found a violation in the structural shortcomings of the paternalistic Moldovan legal framework and its implementation, which did not protect intellectually disabled women from forced medical interventions (§123-6). The legal system as a whole did not ensure that these intrusive procedures could only happen after the women in question, also when having an intellectual disability, would be able to express valid and fully informed consent. On top of this, the criminal legislation targeting those enabling or imposing such practices, was also deemed inadequate (§126).

Second, the Court focused on the personal situations of the different applicants. Here the Court was faced with having to make factual assessments in order to determine whether or not the evidence was sufficient to establish the forced abortions and forced contraception. It carried out this exercise “sensitive to the subsidiary nature of its task and recognising that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case” (§97). For the first two applicants, it was not the termination of the pregnancies which was disputed, but the lack of consent. The Court noted that the patient’s consent could not have been presumed and written confirmation was required by domestic law (§131). For the second applicant, the Moldovan authorities had submitted a consent form with a handwritten letter ‘M’ as evidence of written consent, but this was still found to be insufficient, in light of the “gross disregard for [the applicants’] right to autonomy and choice” (§134).

As regards the third applicant, the Moldovan authorities consistently rejected the claims that she had ever been pregnant, because her medical file did not contain any records on her pregnancy. The Court established a presumption in favor of the applicant, as the “events in issue [lay] wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody” (§137). Consequently, the burden of proof shifted to the government to take away any doubts about the account of the victim. In this case, the Court concluded that witness statements, the proven rape, and the lack of protection within the legal framework, allowed it to establish that the forced abortion had taken place.

Finally, the Court addressed the issues of forced contraception. For the first applicant, who submitted medical records suggesting the possibility of an IUD, it established a similar presumption and thus found a violation (§143 and 147). The first applicant also put forward that this led to her inability to bear children, but the Court found it unnecessary to examine this fact separately (§148). For the last two applicants, the Court noted that due to the lack of evidence or details submitted, no similar presumption could be established and as such no conclusion on the forced contraception could be drawn (§150).

Embracing agency

The agency of women with intellectual disabilities over their own reproductive health has long been a contested topic. A paternalistic approach has traditionally assumed that intellectual disability is a sufficient reason to prevent or even stop pregnancies, for the sake of both the mother and the child (similar to the stereotypes at the heart of the state policy to incentivise or force sterilization of Roma women in the former Czecho-Slovakia). Both eugenetic ideas and stereotypical assumptions about parenting capabilities have been reflected in laws regulating the reproductive rights of women. These laws may have left little room for the individual woman, her situation or choice.

These laws mirror broader perspectives on persons with disabilities and their – oftentimes limited – access to human rights. Scholars active in disability studies have used different models to describe the shifting perspectives on people with disabilities and their rights. Historically, persons with disabilities were often perceived as passive recipients of care and charity, and the result was that laws and policies excluded them from many aspects of society (‘the charity model’). Later on, the ‘medical model’ showed a shift towards inclusion of people in society, but through focusing on curing or ‘fixing’ the person, and thus primarily envisaging disabilities as ‘abnormalities’. In contrast, a more recent approach termed the ‘social model’ has emphasized the role of society in creating obstacles for people with disabilities, and the ‘human rights model’ put forward the importance of human dignity and autonomy, with the UN CRPD being an explicit expression of this last model.

For people with intellectual disabilities, the social barriers are not primarily external or physical, but rather legal and based on conceptions of (lack of) autonomy. Rather than having physical obstacles, such as inaccessible infrastructure, excluding them from day-to-day life, legal provisions taking away their decision-making power are perceived as the biggest issue for societal inclusion. A lack of self-determination or autonomy regarding reproductive choices, is an important aspect of these societal barriers.

What is relevant in G.M. is that the approach and the language employed by the Court seems to fully embrace this shift towards the human rights model. The Court has come a long way from its first case on persons with intellectual disabilities, namely X and Y v the Netherlands in 1985. In this case, an intellectually disabled woman who resided in a mental health institution, was not able to institute criminal proceedings after being raped by someone related to the head of the asylum, due to the fact that she was deemed legally incompetent. The Court did find an Article 8 violation, but nowhere did it mention the vulnerability of persons with intellectual disabilities, let alone that of women with intellectual disabilities. There is no attention given to the specific societal context and stereotypes that allow human rights breaches such as found in the case at hand. As A. Dimopoulos emphasizes, intellectual disabilities have long been a “hidden issue” in the Court’s case law. Despite the fact that a shift started to show in the Glass v. UK case in 2004, the Court continued to take a rather narrow view of the legal issues, focusing on very specific violations without overtly mentioning the broader or systemic issues concerning intellectual disabilities. In general, the Court’s track record on disabilities in a broader sense has been quite spotty as well (see these blog posts for example on Arnar Helgi Lárusson v. Iceland or Stoian v Romania).

In the present judgment, the contrast with X and Y could not be clearer. From the onset, the Court explicitly recognizes the systemic aspect that the individual case represents, stating that the use of non-consensual abortions and contraception “raises issues about a systemic denial of agency to institutionalised women with intellectual disabilities” (§90). It goes on to evaluate the broader legal framework and how it allows for systemic violations by not protecting this particularly vulnerable group. It even explicitly notes that the laws allowing for non-consensual abortions for these women have a “paternalistic tone” (§123) and that “harmful stereotypes exist according to which persons with mental disabilities should not procreate” (§122). As such, the Court’s approach has definitely become more attentive to the particular situation of women with disabilities, their need for autonomy and the general, potentially harmful context, in which they live.

Moreover, because the Court brought the issues within the scope of Article 3, the protection granted is more extensive than an Article 8 approach would have allowed for. Now the Court’s stance seems clear, at least for women who have not been deprived of their legal capacity: safeguards are needed to ensure that women with intellectual disabilities give valid, free and prior consent for medical interventions. Laws that supersede this consent on the basis that limited reproductive rights are ‘in the best interest of the intellectually disabled person’, do not seem to be acceptable by Convention standards anymore.

How these findings will translate onto the situation of women who have formally been deemed legally incompetent, remains to be seen. However, the Court’s vigilance towards vulnerabilities in this case, its emphasis on autonomy and attention to the particular circumstances of each individual (§122 and §120) should definitely allow for a nuanced approach. If the Court aims to continue its ‘human rights model’ approach towards women with disabilities, attention to the human dignity of the individual cannot allow for forced procedures on the mere basis of disability-related legal incompetence. The CRPD is clear on this matter: persons with disabilities retain their “right to equality and nondiscrimination in all aspects of life, including the rights to found and maintain a family and to retain their fertility”. In fact, the CRPD has moved away from the formal ‘legal (in)capacity’ divide, foregrounding the fact that each person’s live and their rights to decide needs to be protected. On the topic of abortions, the CRPD Committee has explicitly established that only the informed consent of a woman with a disability, whether she has been deemed legally incompetent or not, can justify such procedures, and no third-party consent can serve as a substitute. In G.M., the Court has aligned itself with the UN CRPD’s approach. As such, if the Court wants to continue the reasoning of G.M., a declaration of legal incompetence should not be a blanket excuse in future cases to deny the right to informed consent.

Framing the right right?

While the Court clearly extended the protection afforded to the applicants by bringing their case under Article 3 on its own motion, we cannot help but wonder why the Article 14 aspect of the case has once again been neglected. While nothing prevents it from doing so (in fact, the Court has been invited to requalify as well as to raise new issues) it is generally not its approach to assess aspects that have not been addressed in the domestic proceedings. At the same time, the question arises what can be done if the domestic procedure is not conducive to the recognition of discrimination. As far as the authors are aware, legal recourses against discriminatory practices applicable in the context of such interventions in Moldova have been introduced from the early 2010’s, thus have not been self-evident at the time the applicants filed their complaints.

A search of the Court’s online database[i] seems to suggest that it has not on its own motion recharacterized an issue as discrimination in a case where the original complaints did not concern this area, and it may well be subject to debate whether such activism from the Court would be desirable. Yet, we submit that this case is a clear example of intersecting vulnerabilities leading to discrimination, which, if pronounced as such, could have further strengthened the judgment in the present case.

The Court emphasized the applicants’ vulnerability which led it to assess the case under Article 3 rather than Article 8. The approach taken may be understood as group vulnerability, basing the source of vulnerability on the existence of stereotypes and historical prejudice against members of a specific group. Findings of group vulnerability are typical in disability as well as racial discrimination cases (see eg. in Horváth and Kiss v Hungary a case of school segregation of Roma children with mild mental disability). There are, however, examples of another approach to vulnerability in the Court’s case law, recognizing that it is certain situations that expose individuals to violations of their dignity. The Court takes this more individualistic approach for example with regards to persons under the exclusive control of the state (eg. persons in custody or, as acknowledged by the Court in the present case, persons in institutional care). It could be argued that pregnancy and childbirth could also make a person vulnerable. Whichever vulnerability typology we follow, it is important to recognize what we may refer to as compound or intersectional vulnerability: where two or more conditions make the applicant more vulnerable to human rights violations, particularly discrimination. In the present case, it could be argued on the one hand that primarily women bear the burden of forced medical interventions regulating reproduction and sexuality, due to the fundamental biological differences between the sexes. On the other hand, it is equally unlikely that non-institutionalised rape victims should be subject to forced interventions to cover up past-, and even to create the conditions for possible future abuse. The Court has, however, not expressly endorsed intersectionality in its judgments thus far. Instead, it refers to ‘particular vulnerability’ – as it does four times in the present judgment – to hint at the several different layers of the situation which may enhance one another.

Despite not counting and exploring the intersections of the applicants’ vulnerabilities, the Court in G.M. was mindful of the paternalistic views towards people with disabilities and the existence of stereotypes about their reproductive freedom, as well as the applicants being in the care of a public institution, which taken together with their gender exposed them to rape and abuse of their reproductive rights, a practice revealed to be happening on a systemic level. Acknowledging these in the context of Article 3, as in this judgment, is extremely important, but as a rather high threshold right it is not always helpful in denouncing systemic discriminatory issues (see in Y.P. v Russia where a ‘non-vulnerable’ applicant’s sterilization did not meet the severity of this article). To truly advance rights of non-dominant groups, however, both from a legislative/policy as well as a procedural justice perspective, such findings would be equally vital under Article 14. It is only by naming an issue of systemic discrimination what it is under the specific provision that is meant to protect from discrimination that can send a sufficiently strong and clear message against discriminatory practices. As Arnardóttir summarizes in her article on vulnerability under Article 14 ECHR the recognition of (intersecting) vulnerability ‘is a distinct step in the direction of imbuing Article 14 with clearer normative content.’

Conclusion

In conclusion, G.M. and others has centralized the autonomy of intellectually disabled women. Through targeting a broader context, the Court has addressed a more complete legislative reality that can lead to severe human rights abuses of intellectually disabled women. Unlike other disability-related case law, the Court seems to have aligned itself with other international human rights instruments and their enforcement mechanisms, most notably the CRPD. While the judgment’s strength thus lies with its emphasis on the structural and systemic issues at play, explicit attention to the discriminatory aspects of the case could have brought the rights of women with disabilities even further.

[i] A text-search was carried out for the standard phrasing ‘master of the characterisation to be given in law to the facts‘ in conjunction with Article 14. This search yielded 37 results, which were then checked for the recharacterized rights. It appeared that save for one case, in which the Grand Chamber invited the parties to address Article 14, recharacterization occurred to narrow the scope of the examination.

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