Supreme Court of India
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At the end of August, the Supreme Court of India unanimously held that the Constitution of India specifically protects the right to privacy, which it concluded is inherent to constitutional guarantees of life and liberty pursuant to its Article 21 and, therefore, already exists as a fundamental freedom enshrined in the Constitution. See Justice K.S. Puttaswamy (Retd) vs. Union of India, (2017) (India) (opinion of Chandrachud, J.), at 110, 254, 257, 262. The decision arose from a case challenging the constitutionality of the country’s system of using biometrics to identify individuals. For the case to move forward, the nine judges of the Supreme Court of India had to first determine whether the Constitution of India protects the right to privacy. See id. at 7. Affirming the right, the court’s decision was in accordance with international standards on privacy; the court confirmed that individuals have a zone of privacy limited by others’ rights and that the State may interfere with the right to privacy only through established law in pursuit of a legitimate aim and when necessary in a democratic society. See id. at 180-91, 242-46. The constitutional challenge to the biometric identification system will now resume, taking into account the privacy framework decided by the court.
According to Human Rights Watch (HRW) the ruling in the present case will not only have an impact on national policies concerning mandatory identification programs, but also other domestic issues, such as sexual orientation; the opinion explicitly states that sexual orientation is essential to privacy and identity, and discrimination on the basis of sexual orientation is counter to dignity. A challenge to India’s law criminalizing same-sex relations is also currently pending in court. [HRW] See id. at 124. The decision already overruled two prior domestic cases that held the right to privacy is not specifically protected under the Constitution of India. See Justice K.S. Puttaswamy (Retd) vs. Union of India, (opinion of Chandrachud, J.), at 5. Read more
European Court of Human Rights
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On September 5, 2017, the Grand Chamber of the European Court of Human Rights (ECtHR) ruled that a private company’s decision to dismiss an employee, after monitoring and accessing his instant messages sent from the workplace, violated the employee’s right to respect for private and family life, enshrined in Article 8 of the European Convention on Human Rights. See ECtHR, Bărbulescu v. Romania [GC], no. 61496/08, ECHR 2017, Judgment of 5 September 2017, para. 141. The ECtHR held that Romanian authorities did not protect Bogdan Mihai Bărbulescu’s right to private life because the Romanian courts did not adequately balance Bărbulescu’s interest in privacy and the employer’s interest in monitoring communications sent from the workplace. The national courts, the European Court found, did not sufficiently assess the relevant factors of whether the employer gave prior notice to the employee that communications may be monitored; whether there was a reasonable justification for monitoring the employee’s communications; whether there were less intrusive measures available to the employer to achieve the same end; and the necessity of the disciplinary action taken against the employee. See id. at para. 124, 133, 139-41. This case adds to the ECtHR’s developing jurisprudence on the balance between the competing interests of an employee’s right to privacy and a private employer’s right to monitor communications; two previous cases determined that the State has a positive obligation to protect the employee’s right to privacy of telephone communications, email, and internet use that originates at work. See ECtHR, Halford v. the United Kingdom, no. 20605/92, ECHR 1997, Judgment of 25 June 1997; ECtHR, Copland v. the United Kingdom, no. 62617/00, ECHR 2007, Judgment of 3 April 20017. Read more
CICIG Commissioner Iván Velásquez speaks at the UN Embassy in Guatemala
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On August 29, Guatemala’s Constitutional Court issued a temporary injunction to block President Jimmy Morales’ expulsion order against Iván Velásquez, head of a United Nations anticorruption panel, who just days earlier announced his intent to investigate Morales for alleged campaign finance violations in 2015. [Al Jazeera; New York Times] The UN International Committee against Impunity in Guatemala (known by its Spanish acronym CICIG) was formed 10 years ago to address the pervasive corruption problems in Guatemala. [Al Jazeera] In furtherance of its mission, CICIG currently seeks to strip Morales of his official immunity so that he may face a campaign finance investigation. [Washington Post] Morales announced his decision to expel Velásquez on August 27, citing “the interests of the Guatemalan people” and his aim to “strengthen . . . the rule of law and our institutions.” [Al Jazeera] The expulsion order sparked protests in defense of Velásquez and continues to draw international criticism. [New York Times] Representatives from the United Nations, the Inter-American Commission on Human Rights (IACHR), and the European Union (EU) have condemned Morales’ actions as beyond the scope of his authority and an unjustified interference with the work of CICIG. [UN News Centre; OHCHR Press Release; IACHR Press Release (in Spanish); EU Press Release] Read more
The Inter-American Commission on Human Rights holds a thematic hearing
In the month of September, several regional bodies and universal bodies and experts will assess States’ compliance with their human rights obligations by engaging in interactive dialogues, considering State and civil society reports, conducting country visits, holding hearings, and reviewing individual complaints. Five United Nations treaty bodies will meet throughout September to engage with States regarding their treaty obligations related to persons with disabilities; migrants and their families; enforced disappearances; children; and economic, social, and cultural rights. The UN Human Rights Council will be in session and will host panel discussions and forums related to unilateral coercive measures, the integration of the human rights of women throughout the United Nations system, the human rights of indigenous peoples, and the impact of intersecting forms of discrimination against women and girls. Four UN special rapporteurs will conduct country visits and one working group will meet in Geneva, Switzerland to discuss issues pertaining to enforced disappearances. Regionally, the Inter-American Commission on Human Rights (IACHR), the African Court on Human and Peoples’ Rights (AfCHPR), and the European Committee of Social Rights (ECSR) will be in session.
The UN treaty body sessions may be watched via UN Web TV. The African Court sessions may be watched on its YouTube channel, and the IACHR sessions may also be viewed on its YouTube channel. To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar.
European Court of Human Rights
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The European Court of Human Rights (ECtHR) held last week that Belgium violated the rights of Rene Rooman – a prisoner with mental health problems who only speaks German – because the State failed to provide access to a psychologist who could also speak German. See ECtHR, Rooman v. Belgium, no. 18052/11, ECHR 2017, Judgment of 18 July 2017 (in French). Following a criminal conviction in 1997, Rooman, a Belgian and German national, was put in detention and later placed in a psychiatric institution in Paifve. [ECtHR: Press Release] Rooman’s application before the ECtHR alleged violations of the prohibition of inhuman or degrading treatment and the right to liberty and security enshrined in articles 3 and 5 of the European Convention on Human Rights (European Convention), respectively. [ECtHR: Press Release] The ECtHR took into account prior efforts made by mental health bodies in the Paifve institution, but found that the national authorities’ failure to provide him with a psychologist who could speak German, one of three official languages in Belgium, was a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention because it caused Rooman distress that exceeded the unavoidable level of suffering that is inherent in detention. [ECtHR: Press Release] The ECtHR also considered whether there had been a violation of Article 5 (the right to liberty) but did not find a violation because Rooman was held in a facility appropriate for a person with a mental health disability. [ECtHR: Press Release] The European Court has previously held that when a State detains someone with a mental health disability and does not provide adequate medical care to the detriment of the detainee’s health, the State has violated the right to prohibition of inhuman or degrading treatment. See, e.g., ECtHR, Claes v. Belgium, no. 43418/09, ECHR 2013, Judgment of 10 January 2013. Read more
Demonstrations in Athens, Greece in 2011
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In a recently published decision, the European Committee of Social Rights (ECSR) found that Greece’s legislation enacted between 2010 and 2014 in response to the economic crisis violated the rights to work, to just conditions of work, to fair pay, to protection for children and young persons against hazards, and to participate in decision making processes on working conditions established in the 1961 European Social Charter (1961 Charter) and the 1988 Additional Protocol. See ECSR, Greek General Confederation of Labour (GSEE) v. Greece, Complaint No. 111/2014, Merits, 23 March 2017. The Council of Europe’s (COE) Committee of Ministers adopted a resolution on July 5, 2017, that led to the publication of the ECSR’s merits decision in Greek General Confederation of Labour (GSEE) v. Greece. [COE Press Release] Greece argued that the legislation was necessary to ensure that Greece remained in the Eurozone by stimulating growth and job creation. See Greek General Confederation of Labour (GSEE) v. Greece, 23 March 2017, para. 49. The ECSR took account of the scale and severity of the economic and financial crisis that led to the adoption of the legislation at issue; however, it nevertheless concluded that none of the restrictions to social rights imposed via the legislation were permissible under articles 30 (derogations in time of war or public emergency) or 31 (restrictions to rights permitted under the Charter) of the Social Charter, resulting in several violations. See id. at paras. 93, 246-250. Read more
Activists use rainbow color lights to mark Pride in Saint-Petersburg, Russia
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On June 20, 2016, a chamber of the European Court of Human Rights (ECtHR) ruled that legislation in Russia banning the promotion of homosexuality, especially to minors, violated three gay activists’ rights to the freedom of expression and the prohibition of discrimination, enshrined in articles 10 and 14, respectively, of the European Convention on Human Rights. See ECtHR, Bayev and Others v. Russia, no. 67667/09, ECHR 2017, Judgment of 20 June 2017. Regarding the violation of the activists’ freedom of expression, the Court concluded that the law did not serve a legitimate goal to protect the morals or health of the public, and further held that it impermissibly deepened the stigmatization of the country’s homosexual minority, in contravention of the European Convention. See id. at para. 83. The law, the Court concluded, is discriminatory since it provides for different treatment solely on the basis of sexual orientation. See id. at para. 90. Civil society organizations have previously warned that Russia’s gay propaganda law has spread to other countries with proposals to enact similar legislation, including in other States that are subject to the European Court’s jurisdiction, such as Armenia, Latvia, and Lithuania. [Human Rights First; HRW] Read more