On 9 June 2022, the Grand Chamber of the European Court of Human Rights pronounced its judgment in the case of 'Savickis and Others v 'Latvia'. The case concerns a differential treatment in the ...calculation of pension between Latvian citizens and the so-called 'permanently resident non-citizens' ('nepilsoni'), which was the applicants' official status. The applicants were denied recognition of their period of employment outside of Latvia when the country was illegally occupied by the Soviet Union (the USSR), while Latvian citizens could enjoy such a benefit. They argued that this constituted a breach of the accessory right to nondiscrimination under Article 14 of the ECHR in conjunction with the right to property under Article 1 of Protocol No. 1 of the ECHR.
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The European Court of Human Rights has issued judgements that condemn negative stereotypes and protect vulnerable groups from discrimination. Paradoxically, in cases where the victims’ bodily ...integrity is violated in a racist context, the Court has a particularly dubious record of fully engaging with the discrimination aspect of the complaints. This article analyses five illustrative cases where evidentiary materials indicate the authorities held strong prejudices against Romani victims of police violence. Through the lens of vulnerability and anti-stereotyping, the article examines how the Court responds to the presence of negative stereotypes in anti-Romani police violence cases. It shows that the Court’s engagement with stereotypes in these cases is inconsistent. The article suggests that a more conscious engagement with the wider societal context of anti-Romani police violence could strengthen the Court’s stance against harmful Romaphobic stereotyping.
This article offers a critical feminist reading of the home birth jurisprudence of the European Court of Human Rights. The aim is to shed light on the gender sensitivity of the Court in its legal ...reasoning and knowledge production. Since its first decision on the permissibility of a blanket de facto home birth ban in the case of Ternovszky v. Hungary in 2010, the Court has given five judgments on the matter, including a Grand Chamber decision in the case of Dubska and Krejzova v. Czech Republic. The author finds that the Court applies an overtly restrictive obstetric narrative of childbirth without situating its controversial epistemic basis. In doing so, the Court reinforces a rationale that is linked to loss of agency and disempowerment of persons in childbirth and reproduces harmful stereotypes. The article highlights bias in knowledge formation and (re)production at the Court in addressing cases of home birth. The findings in this article add to feminist inquiries of international human rights adjudication, specifically in regard to knowledge formation, knowledge production and stereotyping as well as to literature on the Court's gender sensitivity.
On 4 October 2019, the French Cour de Cassation finally put an end to the struggle of Sylvie and Dominique Mennesson, and their twins who were born from a gestational surrogacy arrangement in ...California in 2000. It delivered a verdict that the family had expected for 19 years: it validated the transcription into the French civil registry of the foreign birth certificates that designate Mr and Mrs Mennesson as the father and the mother of their daughters Fiorella and Valentina. This article focuses on and examines a particularly decisive stage in the Mennessons' crusade to justice: the Advisory Opinion delivered by the European Court of Human Rights ('the Court' or 'the ECtHR') on the issue of recognition in domestic law of the legal relationship between a child born through gestational surrogacy abroad and the intended mother.2 Against the background of the Court's previous case law on surrogacy, this Opinion is herein approached as a further opportunity to (re)consider what kind of link-ie genetic, gestational, and social/intentional-makes someone a legal mother in the era of reproductive technology. Being the first of its kind, this Opinion offers the chance to reflect also on the advisory mechanism itself, and what it can concretely add to the Court's jurisprudence.
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Fundamental rights standards in Europe diverge as a result of differences in legal traditions, constitutional values and historical developments. The European Court of Human Rights therefore faces ...the challenge of having to balance the need for uniform and effective rights protection with respect for diversity. It is often thought that the famous margin of appreciation doctrine is the Court’s main tool in finding this balance. This article shows, however, that the Court’s application of the doctrine has made it into a rather empty rhetorical device. This appears to be different for the Court’s use of incrementalism, which increasingly appears to have replaced the margin of appreciation doctrine as an instrument to reconcile European protection of fundamental rights and national diversity. The article concludes by showing how the Court could further benefit from this strategy of incrementalism, while still maintaining a role for the margin of appreciation doctrine.
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Abstract
In the 1990s it was almost a taboo for senior United Kingdom (UK) politicians to criticise the European Court of Human Rights (ECtHR); however, it has now become commonplace, especially ...since 2012. There has been more and more criticism of the ECtHR by certain Conservative politicians, the talk including regular references to the possibility that the UK could withdraw from the European Convention on Human Rights (echr). Increasingly UK withdrawal ('BrECHRit') has been presented as a credible position - a tenable, not taboo option. This article charts this trend and provides a critical analysis of the same, contextualised to the various legal developments occurring in parallel with it. It sets out what is referred to as the 'closed'/'inward-looking' approach adopted to the echr by UK Conservative politicians since 2012, and points out that this has roots going back to at least the 1990s.
The article focuses on the fact that abuse of law is not only an urgent problem of modern legal science, but also one of the most complex and important issues to be addressed. This phenomenon is ...becoming aggressive and global, negatively affecting the processes of democratisation and consolidation of statehood. The prevalence of cases of abuse of law can slow down the development of society, violating the acquired norms and values. It is important to understand that achieving stability in social relations and their further development is impossible without taking into account the specifics of this legal phenomenon. Abuse of law not only violates the basic principles of law, but also poses a significant threat to the development of the rule of law and the determination of its future course. The particularities of the use of the term “abuse” in international law are determined. It is noted that the European Court of Human Rights considers that this concept should be understood in its ordinary meaning, namely, as the fact of exercise of a right by a subject of law outside its intended purpose in a manner which causes prejudicial damage. The author identifies the approaches to understanding the abuse of law which are used by the European Court of Human Rights in its work. It is noted that in addition to the Convention for the Protection of Human Rights and Fundamental Freedoms, the provisions defining the basis for preventing abuse of law at the international (supranational) level are also contained in the International Covenant on Civil and Political Rights, the American Convention on Human Rights and the Charter of Fundamental Rights of the European Union. The author examines a number of judgments of the European Court of Human Rights in which cases of abuse of law occurred. The author defines the role of the state in cases of abuse of law. The main features inherent in the abuse of law are outlined. Attention is paid to the fact that in addition to the positive components of preventing abuse of law, this activity also has negative consequences. The importance of preventing abuse of law is emphasised, subject to the obligatory observance of the principles of fairness, transparency and consideration of individual rights and freedoms of subjects. Ensuring a balance between the protection of rights and prevention of their abuse is an important task for the effective work of the European Court of Human Rights.
This case concerned a Turkish national (the applicant) who had entered Denmark in 1991 when he was six years old. In 2008, he was convicted of assault. Although he was exempt from punishment on ...account of his mental illness, he was ordered to attend forensic psychiatric care. A year later, on account of his conviction, the applicant was issued with an expulsion order by Danish authorities with a permanent ban on re-entry. Following an unsuccessful domestic appeal process, the applicant commenced proceedings before the ECtHR claiming that his expulsion constituted a violation of article 3 of the 'European Convention on Human Rights' (ECHR) in the absence of Danish authorities obtaining individual and sufficient assurances that appropriate treatment would be available for his mental health condition. The applicant also argued that expulsion breached his right to private and family life under article 8 of the ECHR. In October 2019, a chamber of the court, by four votes to three, agreed. The matter was then referred to the Grand Chamber at the Danish government's request.
Abstract
Since the European Convention on Human Rights entered into force in 1953, lesbian, gay, bisexual, and transgender people have consistently sought to utilise it as a means of challenging ...discrimination against them. In the United Kingdom, various aspects of discrimination on the grounds of sexual orientation and gender identity have been addressed by the European Court of Human Rights. In the context of vehement criticism of the European Court of Human Rights in the United Kingdom, this article explains the vital importance of the United Kingdom remaining a party to the European Convention on Human Rights in order to maintain and develop the protection of lesbian, gay, bisexual, and transgender people from discrimination.
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