New articles on ECHR and ECJ

Below are listed some of the articles,  which have been published in past months on the European system of human rights protection.

Scott L. Greer, Tomislav Sokol, Rules for Rights: European Law, Health Care and Social Citizenship, European Law Journal (2014) Volume 20, Issue 1, 66–87.

Social citizenship is about equality. The obvious problem for European social citizenship in a very diverse Union is that Member States will not be able or willing to bear the cost of establishing equal rights to health care and similar aspects of social citizenship. Health care is a particularly good case of this tension between EU citizenship and Member State diversity. The European Court of Justice (ECJ) strengthened the right to health care in other Member States, but this cannot create an equal right to health care when Member States are so different. In its efforts to balance a European right, the Court has formulated ‘rules for rights’—not so much European social citizenship rights, as a set of legal principles by which it judges the decisions of the Member States.

Lourdes Peroni & Alexandra Timmer, Vulnerable Groups: the Promise of an Emergent Concept in European Human Rights Convention Law, 11 International Journal of Constitutional Law (2013), 1056-1085.

The concept of “vulnerable groups” is gaining momentum in the case law of the European Court of Human Rights. The Court has used it in cases concerning Roma, people with mental disabilities, people living with HIV and asylum seekers. Yet the appearance of the vulnerable group concept in the Court’s legal reasoning has so far escaped scholarly attention. Drawing on theoretical debates on vulnerability and equality as well as on the Court’s case law, this Article offers a descriptive and normative assessment of the concept. Reasoning in terms of vulnerable groups opens a number of possibilities, most notably, the opportunity to move closer to a more robust idea of equality. However, the concept also has some inherent difficulties. This Article argues for a reflective use of the concept and points out ways in which the Court can avoid its pitfalls.

Anthony Cullen, Steven Wheatley, The Human Rights of Individuals in De FactoRegimes under the European Convention on Human Rights, Human Rights Law Review (2013)13 (4): 691-728.

The objective of this article is to evaluate the extent to which we can regard individuals in the territories of de facto regimes in the Council of Europe region (Abkhazia, South Ossetia, Nagorno-Karabakh, Transdniestria and Turkish Republic of Northern Cyprus) as enjoying the protection of the European Convention on Human Rights. The work considers the utility of recognising ‘de facto regimes’ as subjects of international law, before examining the relevant case law of the European Court of Human Rights and wider international law on the human rights obligations of such political entities. It then draws on the doctrine of acquired human rights to recognise, in certain circumstances, that the European Convention on Human Rights can be opposable to such regimes and concludes by reflecting on the implications of the analysis for understanding human rights in world society.

Jernej Letnar Černič, The prohibition on hate speech in the case-law of the European Court of Human Rights, Dignitas – Slovene Journal of Human Rights (2013), Issue 57-58, 128-145.

The right to freedom of expression is one of the foundations of a free, pluralistic, tolerant and democratic-minded society. However, the right to freedom of expression is not absolute because it must be protected in relation to other values. This article addresses and analyses 42 cases from the case-law of the European Court of Human Rights relating to hate speech. The analysis of these 42 cases illustrates the lowest common denominator, namely, that freedom of expression does not protect hate speech based on the glorification of genocide, crimes against humanity, the Holocaust or discriminatory and xenophobic statements against racial, religious or ethnic groups. The article concludes that individuals hold a key responsibility for creating a tolerant, open-minded and pluralistic public sphere in the respective European societies.

Forthcoming judgment against Slovenia

The European Court of Human Rights will on 23 January 2014 deliver an important judgment in case of W. v Slovenia (no.24124/06) on internal domestic remedial measures for violation of Article 6. Here is the summary :

The applicant, Ms W., is a Slovenian national who was born in 1971 and lives in Maribor (Slovenia). The case concerns criminal proceedings against a group of men who raped her in April 1990, when she was 18 years old. Charges of rape, aiding and abetting rape and sexual assault, respectively, were brought against ten men in September 1990. In November 1990 they were acquitted, based on the findings, in particular, that Ms W. had not seriously resisted sexual intercourse and that she had changed her testimony during the proceedings. On appeal, the second-instance court quashed the judgment in April 1991, finding that the facts had been insufficiently established, and remitted the case. Subsequently there were long delays in the proceedings, since two of the defendants had left the country and could not be found. After the proceedings against the two missing men had been severed into separate cases, six of the remaining defendants were convicted, of rape and aggravated rape respectively, and sentenced to imprisonment for between eight months and one year in a judgment of June 2002, eventually upheld by the Supreme Court in July 2007. The missing defendants were eventually found and extradited to Slovenia in 2003 and 2004 and they were convicted of aiding and abetting rape and of aggravated rape, respectively, and both sentenced to imprisonment of eight months by judgments which became final in August 2004 and June 2006. Relying, in substance, on Article 3 (prohibition of inhuman or degrading treatment), Ms W. complains in particular that the long delays in the criminal proceedings were in breach of the State’s obligation to effectively prosecute the criminal offences committed against her. While she was awarded compensation at national level for the distress she suffered as a result of the lengthy proceedings, she considers that the amount of 5,000 euros paid to her cannot be regarded assufficient redress.

Association of Victims of Romanian Judges and Others v. Romania

The European Court of Human Rights yesterday delivered judgment in case of Association of Victims of Romanian Judges and Others v Romania (no. 47732/06) and found that Romania violated Article 11 as it denied registration of this civil society association. It noted that :

»the reasons invoked by the authorities for refusing registration of the applicant association were not determined by any “pressing social need”, nor were they convincing and compelling. Moreover, such a radical measure as the refusal of registration, taken even before the association started operating, appears disproportionate to the aim pursued« (para. 34).

Judgment againts Switzerland on the denial of Armenian Genocide

The European Court of Human Rights has just before Christmas delivered a very controversial decision in Perinçek v. Switzerland (application no. 27510/08) concerning the denial of Armenian genocide. The Court did not find that Mr Perinçek abused his rights under Article 17 of ECHR and held that Switzerland violated Article 10 by sentencing him to pay a fine. The Court concluded that:

»129.  Compte tenu de ce qui précède et notamment à la lumière des éléments de droit comparé, la Cour considère que les motifs avancés par les autorités nationales pour justifier la condamnation du requérant ne sont pas tous pertinents et, considérés dans leur ensemble, s’avèrent insuffisants. Les instances internes n’ont pas démontré en particulier que la condamnation du requérant répondait à un « besoin social impérieux » ni qu’elle était nécessaire, dans une société démocratique, pour la protection de l’honneur et les sentiments des descendants des victimes des atrocités qui remontent aux années 1915 et suivantes. Les instances internes ont donc dépassé la marge d’appréciation réduite dont elles jouissaient dans le cas d’espèce, qui s’inscrit dans un débat revêtant un intérêt public certain.«

This decision is comparable to the case of Garaudy v. France the author of “Fundamental myths of modern Israel”, where author was sentenced to a suspended prison sentence and fined for denying crimes against humanity and the Holocaust (no. 65831/01, 24. 6. 2003, pp. 2–12) The Court stated that “denying crimes against humanity is therefore one of the most serious forms of racial defamation of Jews and of incitement to hatred of them. The denial or rewriting of this type of historical fact undermines the values on which the fight against racism and anti-Semitism are based and constitutes a serious threat to public order” (Ibid., para. 23). Judges Vučinić and Pinto de Albuqueque noted in their partially dissenting opinion that that “Dans cette mesure, le requérant a agi avec le même dolus inacceptable que l’avait fait M. Garaudy. Il a même agi de manière plus répugnante encore, en s’identifiant au personnage qui, selon les juridictions militaires turques compétentes, avait fomenté le génocide des Arméniens …” (para. 25).  It would be interesting why the Court has decided to depart from its well-established law on hate speech and, particularly why denial of the Armenian genocide which is a historical fact was not considered as the violation of Article 17 of ECHR on prohibition of abuse of rights.

Welcome to Esohap blog !

Welcome to the Esohap, a new blog on the European System of Human Rights Protection ! This blog will cover recent human rights developments from both the Council of Europe and European Union. It will report on recent human rights case law of the European Court of Human Rights, European Court of Justice and other European human rights bodies. It will report also on recent publications, conferences and reports from this field.  Your comments and suggestions on how to improve this blog are more than welcome !