The Court's HUDOC case-law search engine is available since this month in the language of the Convention's most populous state party: Russian. Part of the ever-expanding availability of ECHR information in other languages than English and French on the Court's website, this is a new major step forwards. Earlier, translations of important judgments into Russian (currently over a thousand already) were already included in HUDOC, but now the search engine also has a Russian version of its portal. Factsheets in Russian on the jurisprudence of the Court and other relevant information are brought together on a special web page. In addition, the Russain version of the Court's 50 year anniversary book, The Conscience of Europe, can be retrieved here. See the press release on the launch of the Russian version of HUDOC here (it can also be accessed by clicking on "Other languages" at the upper right in the HUDOC interface). Let's hope that this increased accessibility of European human rights material may trickle up to levels where its insights are most needed in the period of current tension.
Wednesday, 30 April 2014
Friday, 25 April 2014
My New Article in ICLQ on ECHR, Violence and Free Speech
I am very happy to announce that my article entitled 'Dangerous Expressions: The ECHR, Violence and Free Speech' has just been published in the International and Comparative Law Quarterly (vol. 63, April 2014, pp. 491-503). The article is part of a larger research project which I have just finalised on the linkages between freedom of expression, the media, and violent conflict escalation. It investigates when speech becomes dangerous and is related to violent conflict escalation. The ICLQ article looks at the ECHR-related aspects of that issue. This is the abstract:
How should one balance the freedom of expression and the prevention of violence? This article delves into the grey zone between hate speech and incitement to violence by assessing the jurisprudence of the European Court of Human Rights in cases of allegedly dangerous speech. Rather than labelling this case law as simplistic, as some critics even within the Court have done, it is shown that the jurisprudence reveals cleavages within the Court on whether to adopt a more or less consequentialist approach on the links between speech and violence. Freedom of expression cases should preferably be assessed on the merits under Article 10 ECHR since this allows for a balancing of the various interests involved. The application of the abuse of rights clause of Article 17 ECHR is for that very reason undesirable, in addition to its inconsistent use by the Court.
Enjoy reading!
Monday, 14 April 2014
Failures to Comply with Interim Measures
There are still serious and worrying failures of state parties to the Convention to comply with interim measures indicated by the Court under Rule 39 of the Rules of Court. This was the message coming from the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly (PACE) of the Council of Europe last week. It adopted a draft resolution and draft recommendation on the issue, to be sent to the plenary of PACE. Here is a summary of the Committee's position:
"The committee strongly condemns
instances of outright violations by several States Parties to the Convention of
the Court’s interim measures aimed at protecting applicants from extradition or
deportation to countries where they would be at risk of, in particular,
torture. It is worried about the recent phenomenon, observed in the Russian
Federation, of the temporary disappearance of applicants protected by interim
measures and their subsequent reappearance in the country which had requested
extradition. This can be likened to the practice of “extraordinary renditions”
repeatedly condemned by the Parliamentary Assembly.
The committee welcomes the increasing
use, by the Court, of factual presumptions and the reversal of the burden of
proof in dealing with refusals of States Parties to co-operate with it, which
consist in their failure to provide full, frank and fair disclosure in response
to requests by the Court for further information or evidence."
For a full overview of cases in which Rule 39 was breached or allegedly breached and the response of the Court, see here. And see here for a verbatim of the debate itself. The report of the rapporteur, Mr Kimmo Sasi, includes a very precise overview of recent instances of non-compiance and is to be found here (see under explanatory memorandum).
Thursday, 10 April 2014
New ECHR Readings
The newest issue of the European Journal of International Law (vol. 25, issue 1, 2014) includes a symposium on human rights implementation in Europe:
* Dia Anagnostou and Alina Mungiu-Pippidi, ‘Domestic
Implementation of Human Rights Judgments in Europe: Legal Infrastructure and
Government Effectiveness Matter’
* Erik Voeten, ‘Domestic Implementation of
European Court of Human Rights Judgments: Legal Infrastructure and Government
Effectiveness Matter: A Reply to Dia Anagnostou and Alina Mungiu-Pippidi’
A number of other journals also include ECHR-related articles:
* A.
Cogbill, ‘European Court of Human Rights' dance with death’, ConnecticutJournal of International Law, vol. 29, no. 1 (2013) pp. 151-180.
* E.
Silinyte, ‘The application of the definition of torture: nowadays and
perspectives in the practice of European Court of Human Rights’, Contemporaryreadings in law and social justice, vol. 5, no. 2 (2013) pp. 244-254.
* A.
Romero, ‘The European Court of Human Rights and religion: between Christian
neutrality and the fear of Islam’, New Zealand journal of public and international law, vol. 11, no. 1 (2013) pp. 75-102.
Finally, Amnesty International has published the second edition of its Fair Trial Manual, which builds, among others, on Strasbourg case-law.
Finally, Amnesty International has published the second edition of its Fair Trial Manual, which builds, among others, on Strasbourg case-law.
Tuesday, 8 April 2014
René Cassin Competition 2014
Later this week, on 10 and 11 April, the 29th edition of the French-language moot court competition René Cassin will be held at the premises of the Court. It consists of mock legal proceedings in an imaginary case related to the European Convention. Sixteen university teams from French-speaking countries, but also from Slovenia and Turkey, will gather in Strasbourg for the competition. As the fictitious case this year involves sport and laws voted by referendum, it is most suitable that this year's mock court wil be chaired by David Douillet who is both a former French Minister for Sport and an Olympic champion (in judo, so the participants might want to avoid contempt of Court!). The official website of the competition can be found here and the webpage on the Court's own website related to the competition is here. As in previous years, the motto of the competition remains "il s'agit de s'amuser avec le droit, pour le droit et autour du droit." [It is about enjoying oneself with the law, for the law and around the law].
Friday, 4 April 2014
Conference on UK and European Human Rights
The University of Leicester is organising a two-day conference on the issue of 'The UK and European Human Rights - A Strained Relationship?' on 23 and 24 May. The conference is convened by Dr Loveday Hodson, Professor Liz Wicks and Professor Katja Ziegler. The full programme of the event can be found here. This is the idea of the conference:
"The conference will encompass both the UK’s relationship with the European Court of Human Rights in Strasbourg and the additional layer of human rights protection through the European Union. It will seek to contribute to the debates in the UK, and elsewhere, about the relationship between the ECHR and national courts.
The conference will bring together judges, barristers and solicitors, politicians, representatives of NGOs, the media and academics in the field. A number of high profile speakers are confirmed with judges from the Supreme Court and European Court of Human Rights, as well as leading authorities from academia."
Confirmed speakers include:
Registration can be done here.
Thursday, 3 April 2014
Guest Post on Biao v Denmark
I am very happy to introduce a guest post by my SIM colleague dr Alexandra Timmer. She has written a commentary on the recent judgment in Biao v. Denmark which concerns family reunification and discrimination issues. This is her guest post:
Divided
Opinions in Biao v. Denmark: Of Race,
Rights and Family Reunion
Alexandra Timmer
Last week the Second Section of the European Court of Human Rights delivered a 4:3 judgment in the case of Biao v. Denmark. This case confronted the Court with difficult questions. The first – indirect – question is: what is race? And the second is: what is indirect discrimination? It turns out that the Court could not agree on either of these issues. Biao concerned a refusal to grant the Ghanaian wife of a Danish national family reunion in Denmark. The family was not allowed to reunite in Denmark, because they did not meet the criteria of what is known as the “attachment requirement”. Amongst other things, Mr and Ms Biao complained in Strasbourg that the rules regarding family reunification discriminated against them because it had a disproportionate effect on people who have become Danish nationals later in life. By the slimmest of majorities, the Court found no violation of the prohibition on discrimination in conjunction with the right to family life (Articles 14 and 8). Unanimously, the Court also found no violation of Article 8 standing alone.
This post will
focus on the Court’s reasoning regarding the claim of discrimination. The
majority opinion hardly contains real discrimination analysis, whereas the
dissenting opinion of Judges Sajó, Vučinič and Kūris provides a more thorough
reasoning on that point. Both opinions provide rich material for discussion.
Facts
The applicants are a husband and wife. Mr Biao
is a naturalized Danish citizen, originally from Togo. Ms Biao is a Ghanaian
citizen. They live in Sweden with their 9-years old son. Their
son has Danish nationality due to his father’s nationality.
Mr. Biao came to
Denmark in 1993, after having spent 15 years in Ghana. Having lived in Denmark
for 9 years, he was granted Danish nationality in 2002. In 2003, a week after
their marriage, Ms Biao applied for a Danish residence permit, which was refused
by the Aliens Authority. The authorities found in particular that the
applicants did not comply
with the requirement that a couple applying for family reunion must not have
stronger ties with
another country, Ghana in the applicants’ case, than with Denmark (known as the
“attachment requirement”).
The attachment requirement is the
general rule for allowing a Danish citizen and his or her foreign spouse to be
reunited in Denmark. The exception to this requirement is the “28-year rule”,
under which reunification is allowed if the Danish spouse has been a Danish
citizen for at least twenty-eight years. The 28-year old rule also applies to
people who are not
Danish nationals, but who were born and raised in Denmark, or came to Denmark
as small children and were raised there, and who have stayed lawfully in the
country for 28 years.
Mr and Ms Biao appealed the refusal of family
reunification. They submitted, amongst other things, that the 28-year rule
exception resulted in a difference in treatment between two groups of Danish
nationals, namely those born Danish nationals and those who acquired Danish
nationality later in life. Mr Biao acquired Danish citizenship when he was 31. According to the
28-years rule, he will gain the right to family reunification only when he is
59. The Danish Supreme Court was deeply divided over this issue. So was the
Strasbourg Court, as I will now proceed to discuss.
Judgment
First of all, the
Court notes that the case falls within the ambit of Article 8, which triggers
the applicability of Article 14.
What is the ground for the difference in
treatment?
The first question
that the Court then faces, is what the differential treatment ground in this
case is (see para. 79 and further). Article 14 lists a number of prohibited
discrimination grounds, amongst which are race, birth, national or social
origin and “other status”. The wording of the relevant section of Danish law is
neutral: the attachment requirement applies to all Danish nationals. The Court
first investigates whether this is a case of indirect discrimination, as the applicants had argued:
“the Court can agree with the minority of the
Supreme Court that the 28-year rule had the consequence of
creating an indirect difference in treatment between Danish nationals of Danish
ethnic origin and Danish nationals of other ethnic origin, because de facto the
vast majority of persons born Danish citizens would usually be of Danish ethnic
origin, whereas persons who acquired Danish citizenship at a later point in
their life would generally be of foreign ethnic origin” (para. 90)
Nevertheless, in the
same paragraph the Court dismisses the complaint of indirect discrimination for
reasons that are unclear to me, mainly by referring to the old case of Abdulaziz, Cabalesand Balkandali v. the United Kingdom (1985). Without saying so explicitly,
the majority comes to the conclusion that this is a case of direct difference in treatment; the
discrimination ground being “other status”, namely length of citizenship.
Objective and reasonable justification?
Although the majority
does not make this explicit, the consequence of the finding that the difference
in treatment at issue concerned “other status”, rather than race, national or
ethnic origin, is that the Court does not have to apply the very weighty
reasons test (see, mutatis mutandis, Gaygusuz v. Austria). The Court’s scrutiny of the
proportionality of the application of the 28-year rule to the applicants’ case
is therefore not strict.
On the side of the
Government, the Court emphasizes that the Danish Supreme Court had thoroughly
analyzed the case (para. 93). Furthermore, the Court holds that the European Convention on Nationality is not of relevance to the present
case (see para. 95).
Article 5(2) of that Convention enshrines the principle of non-discrimination between
nationals, whether they are nationals by birth or have acquired its nationality
subsequently. Moreover, the majority refers to the case of Abdulaziz, Cabales and Balkandali, in which the Court held that “there are in general persuasive social
reasons for giving special treatment to those who have strong ties with a
country, whether stemming from birth within it or from being a national or a
long‑term resident” (see para. 94).
On the side of the
applicant, the Court does criticize the 28-year old rule:
It is not for the Court to lay down a specific
limit for the time that may be required. However, to conclude that in order to
be presumed to have strong ties with a country, one has to have direct ties
with that country for at least 28 years appears excessively strict. (para. 99)
And:
the 28-year rule affected persons who only
acquired Danish nationality later in life with a far greater impact than
persons born with Danish nationality. In fact, this group of Danes’ chances of reuniting with a foreign spouse in Denmark, and creating a
family there, were significantly poorer and, it appears, almost illusory where the residing partner acquired Danish
citizenship as an adult (par. 101)
Despite these
problems with the 28-year old rule, the majority finds that “where national
legislation is in issue, it is not the Court’s task to review the relevant
legislation in the abstract. Instead, it must confine itself, as
far as possible, to examining the issues raised by the case before it” (paragraph 103). What is puzzling
here is that the majority cites Taxquet v. Belgium as support, a case concerning
the right to a fair trial; not a discrimination case. It is not uncommon in
discrimination cases that the Court criticizes national legislation (take for
example KonstantinMarkin v. Russia, where the Court
took issue with the Russian law that made parental leave available for
servicewomen but not for servicemen). Indeed, that is inherent in the
discrimination analysis when the discriminatory treatment flows from formal
legal rules. The Taxquet line of
reasoning enables the majority to make a purely individual proportionality
assessment, focusing only on Mr and Ms Biao. The majority concludes that at the relevant time their aggregate ties to Denmark were clearly not stronger than their ties to
another country.
Dissenting opinion
The three dissenting
judges argue that Article 14 juncto Article 8 is violated. They have written a very thoroughly reasoned separate
opinion, which actually merits its own blog post. I will just highlight two
striking aspects of their reasoning.
First of all, they
disagree with the majority that the applicants enjoy “other status” for the purposes
of Article 14 (dissent para. 12). The dissenters attempt to give some guidance
on the tricky question of “what is race”. In their view, this is not a case of
racial discrimination but of discrimination on the ground of national origin. “National origin is an “ethnic
criterion” in the non-racist sense”, they claim (dissent para. 13 and 15).
Secondly, the
dissenters insist – rightly in my view – that the Court’s discrimination
analysis ought to consist of two levels: the individual level and the general
context. When it comes to general context, it is interesting that the
dissenters insist on the importance of looking at the role of stereotypes in discrimination cases:
the paramount concern of a human
rights court should be whether such criteria have the disparate adverse impact
of a stereotype on a minority group, no less important than the actual
individual impact, which in every case is absolutely necessary for victim
status to obtain. The difference in the treatment of a group raises fundamental
human rights concerns, especially if it reflects or reinforces existing
patterns of social stereotyping related to one or other “natural feature”. It
is impossible to think of Article 14 of the Convention as permitting
second-class citizenship, especially within the ambit of Convention rights
(such as those consolidated in Article 8). For this reason, the Court’s
indirect discrimination doctrine is concerned with the group effects of a
general measure and not only with individual impacts: discrimination may occur
where “a general policy or measure ... has disproportionately prejudicial
effects on a particular group” (see D. H. and Others, § 175) (dissent, para. 8).
The dissenters claim
that: “the impugned differentiation
reflects and reinforces, albeit indirectly, a negative stereotype.”
(dissent para. 16). Referring to the 2012 Grand Chamber judgment in Konstantin Markin v. Russia, the
dissenters remind everyone that “the Court previously held that general
assumptions or prevailing social attitudes in a particular country provided
insufficient justification for a difference in treatment on the ground of sex”.
They “find that similar concerns should apply to immigrant minorities.”(dissent
par. 16). I agree. The stereotype at issue here is that immigrants who marry
persons from their country of origin are not well integrated. Throughout the
judgment reference is made to the mirror opposite of the poorly integrated
immigrant, namely the Danish expatriate who “speak[s] Danish at home, take[s]
holidays in Denmark, read[s] Danish newspapers regularly” (see e.g. par. 24).
This is the person whom the family reunification rules seek to protect.
Concluding thoughts
There is a lot to say
about this judgment, and I cannot say it all here. Several issues will require further
discussion, for example:
-
The casual and highly questionable
way the majority of the Court dismisses the European Convention on Nationality as not being
of relevance to the present case (see par. 95). This
is a Council of Europe Convention, which Denmark has ratified!
-
The
applicants have a son who is a Danish citizen, but who cannot live in Denmark
with both his parents. Where is the perspective of the child’s best interest in
the majority opinion? The dissenters rightly flag this absence in paragraph 5
of their separate opinion.
Paragraphs 79-91,
where the majority discusses what the applicable discrimination ground is in
this case are very confusing. The reasons for dismissing the indirect
discrimination claim appear insufficient. In the first place we are told that “the only intention behind the introduction
of the 28-year rule was to provide for a positive treatment” of certain
groups of citizens who are thought to have such strong ties with Denmark that
it is unproblematic to grant them the right of family reunion (par 89). But –
as the dissenters rightly point this out, referring to D.H. and Others - the intent of the legislature is irrelevant when
it comes to assessing the merit of indirect discrimination claims!
Secondly, the
majority refers to Abdulaziz, Cabales and Balkandali apparently in order to establish
what is racial discrimination and what is not. But that is exactly (one of the)
point(s) wherein Abdulaziz, Cabales and
Balkandali is outdated: the first time the Court actually held a State accountable for racial
discrimination was only in the Chamber judgment of Nachova
in 2004. Abdulaziz, Cabales and Balkandali provides no guidance any more on
what should count as race discrimination. Remember that in that case “the
legislative history showed that the intention was to ‘lower the number of
coloured immigrants’” (Abdulaziz par.
84), and still the Court had maintained that this was no case of race
discrimination!
Ultimately, Biao raises more questions than it
answers regarding indirect racial discrimination and related forms of
discrimination, namely on the grounds of ethnic and national origin. The
dissenters make a more thorough attempt at providing guidance on this difficult
topic than the majority. The majority judgment attaches excessive weight to Abdulaziz, Cabales and Balkandali. It is time for a more authoritative judgment
of the Court!
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