European Court of Human Rights
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On April 6, 2017, the European Court of Human Rights (ECtHR) ruled that France’s requirement that two transgender applicants first undergo an irreversible identity change through an operation or sterilizing treatment in order to correct their “sex” designation on their birth certificates violated Article 8 (right to respect for private life) of the European Convention on Human Rights. The ECtHR determined that such a requirement impermissibly conditioned the recognition of the right to respect for private life on forgoing the right to respect for one’s physical integrity. See ECtHR, AP., Garçon and Nicot v. France, Nos. 79885/12, 5247/13, 52596/13, ECHR 2017, Judgment of 6 April 2017, para. 131 (French version). The ECtHR found no violation of Article 8, however, where French law required an applicant to prove that they suffered from gender identity disorder before the State would grant a change to their birth certificate under the category of “sex.” See id. at para. 139. Similarly, the ECtHR held there was no violation of Article 8 where an applicant was ordered by a French court to undergo a medical examination to confirm the applicant’s sex reassignment surgery. See id. at para. 150-152.
The Court did note the expansion of transgender rights at the national and international levels, including in France where since the applicants submitted their claims, the law has changed so that corrections to official sex designations are no longer conditioned upon irreversible medical procedures or sterilization treatments, but rather require publicly presenting oneself as the claimed sex; being recognized by family, friends, and colleagues as their claimed sex; and evidence that their name has been changed to correspond with their claimed sex. The Council of Europe has called for an end to the practice of conditioning the recognition of an individual’s chosen gender identity in official documents on medical procedures and treatment. See id. at paras. 68-69, 75-77. Read more
María Soledad Cisternas Reyes, the former Chairperson of the United Nations Committee on the Rights of Persons with Disabilities, speaks at a press conference
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On March 23, 2017, a chamber of the European Court of Human Rights (ECtHR) ruled that Finland did not violate the rights of a Finnish national with an intellectual disability, A.-M.V., when the domestic court refused to replace his mentor who would not allow him to move to his choice of residence. A.-M.V. desired to live in a village far from his hometown because his foster family had moved there, but his mentor denied his wishes, finding it best that he remain where his biological family resides. Before the ECtHR, he alleged violations of Article 8 (the right to respect for private and family) of the European Convention on Human Rights (ECHR) and Article 2 of Protocol No. 4 to the European Convention (the right to freedom of movement). See ECtHR, A.-M.V. v. Finland, no. 53251/13, Judgment of 23 March 2017. The Court found that there had been an interference to A.-M.V.’s right to respect for private and family life, but that given the facts of this case, the interference was justified as it balanced A.-M.V.’s will and preferences with “the need to protect his interests.” See id. at paras. 91-94.
The ECtHR took into account Article 12 of the United Nations International Covenant on the Rights of Persons with Disabilities (ICRPD), noting that the UN Committee on the Rights of Persons with Disabilities (CRPD) – the treaty body that monitors compliance with the ICRPD and interprets its provisions – requires States to replace substitute decision-making models, often found in guardianship laws, with a supported decision-making model. The latter, according to the Committee, takes into account the person’s will and preferences while the former does not. See id. at paras. 42-45. The Court also acknowledged a third party submission elaborating on supported decision-making models, which, the third party explained, guards against overriding the preferences of the person with a disability. See id. at paras. 66-68. Read more
European Court of Justice
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In two separate opinions issued this week, the European Court of Justice (ECJ) found that while an employer may prohibit a Muslim woman from wearing a headscarf at work through a rule applied consistently to all religious beliefs, an employer may not prohibit a Muslim woman from wearing religious clothing based on a customer’s preferences. These are the first cases before the ECJ that deal with Muslim women employees’ desire to wear an Islamic headscarf at work. The cases involve a woman in Beligum who asserted her desire to wear a headscarf to work despite the company’s internal policy prohibiting religious clothing and symbols and a woman in France who refused to stop wearing a headscarf after her employer prohibited her from doing so in response to a customer’s complaint. See European Court of Justice (Grand Chamber), Samira Achbita et al. v. G4S Secure Solutions NV, Case C-157/15, Request for Preliminary Ruling, Judgment of 14 March 2017; European Court of Justice (Grand Chamber), Asma Bougnaoui et al. v. Micropole SA, Case C-188/15, Request for Preliminary Ruling, Judgment of 14 March 2017. The European Court of Human Rights (ECtHR), a regional human rights court, has previously addressed the issue of religious clothing and symbols in the work place, holding that some public interests, like public health and safety and neutrality, outweigh an individual’s fundamental right to manifest their religious beliefs, while other private interests, like maintaining a corporate image, do not. The judgments of the ECJ come amidst growing anti-immigrant and anti-Islam sentiments in the region. [New York Times] Read more
A prison in Russia
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The European Court of Human Rights (ECtHR) issued a unanimous judgment on March 7 holding that imprisoning individuals thousands of miles away from their families violates their right to private and family life protected under Article 8 of the European Convention on Human Rights (ECHR). See ECtHR, Polyakova and Others v. Russia, Nos. 35090/09, 35845/11, 45694/13, 59747/14, Judgment of 7 March 2017. In Polyakova and Others v. Russia, three prisoners were held between 2,000 and 8,000 kilometers from their family members, and the distance, the applicants showed, had a direct effect on how often the prisoners were able to visit with family. Russia’s domestic legal system, the ECtHR found, allows for vast discretion in choosing a prisoner’s location, and does not require consideration of the effect a penal facility’s geographical location may have on a prisoner’s family life when placing a detainee. See id. at paras. 98-101, 116-19. Domestic procedures do not adequately safeguard against abuse of discretion through effective judicial review or another mechanism, the Court found, and, therefore, Russia’s interference with the prisoners’ rights was not justified. See id. at para. 119. The Court in its opinion recognized that the margin of appreciation given to States on “permissible limits of the interference with private and family life” when regulating family visits in prisons “has been narrowing.” See id. at para. 89. A 2013 case against Russia also found that placement in remote prisons and a lack of efficient transportation to those prisons implicated the right to private and family life for prisoners. See ECtHR, Khoroshenko v. Russia [GC], no. 41418/04, Judgment of 30 June 2015. The current case expanded upon that opinion, stating placing prisoners 2,000 to 8,000 kilometers away from family members interfered with their rights.
The Council of Europe
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In recently published country reports on Andorra, Bosnia and Herzegovina, Iceland, and Luxembourg, the European Commission against Racism and Intolerance (ECRI) found several areas in which migrants, Roma communities, LGBTI persons, and other minorities are susceptible to discrimination and unequal treatment. [COE Press Release: ECRI] In each report, the ECRI – an independent human rights body of the Council of Europe that monitors racism, xenophobia, antisemitism, intolerance, and discrimination – acknowledged positive developments and areas in need of improvement, including improving laws on hate speech, establishing specialized national bodies that work to eliminate xenophobia and racism, providing equal access to education and employment, and eliminating xenophobic and racist language or images in the political discourse. For instance, the ECRI found a disparity in access to education for migrants or ethnic minorities in Bosnia and Herzegovina, Iceland, and Luxembourg; found that hate speech was regularly used in the political discourse in Iceland and Bosnia and Herzegovina; and found that Andorra and Iceland both lack a national body with a mandate to combat discrimination and xenophobia. The reports, though, noted in some instances developments in criminalizing racism and discrimination; support for education and employment of minorities; and, in the case of Luxembourg, low levels of hate speech in the public discourse. The Commission published its findings in public reports and made recommendations to each country on legal and structural changes that could improve xenophobia, discrimination, and racism. [COE Press Release: Andorra; COE Press Release: Bosnia and Herzegovina; COE Press Release: Iceland; COE Press Release: Luxembourg] Read more
Office of the High Commissioner for Human Rights headquarters at the Palais Wilson
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In the month of March 2017, various universal and regional bodies and experts will assess States’ compliance with their human rights obligations through consideration of State and civil society reports, country visits, review of individual complaints, and deliberation over thematic reports. Five United Nations treaty bodies will meet to engage with States regarding their treaty obligations related to economic, social, and cultural rights; discrimination against women; enforced disappearances; civil and political rights; and the rights of persons with disabilities. The Human Right Council will continue its 34th session. During the session, it will consider reports from the High Commissioner for Human Rights, the Universal Periodic Review Working Group, and the UN Secretary General and hold dialogues with UN special procedure mandate holders on a variety of topics, including freedom of religion, migrants, and the environment, among others. Four UN special procedure mandate holders will conduct country visits.
Regionally, the African Court on Human and People’s Rights, the European Court of Human Rights, the European Committee of Social Rights, the Inter-American Commission on Human Rights, and the Inter-American Court of Human Rights, will hold sessions or hearings this month. The European Court of Human Rights will hold Grand Chamber hearings in two cases – one concerning the pre-trial detention of a former Prime Minister of Georgia and one concerning the right to a fair trial in the context of disciplinary hearings for three judges in Portugal.
UN treaty body sessions may be watched via UN Web TV . To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar. Read more