What if you see a runaway train moving toward five people tied-up on a track. Would you pull a lever to redirect the train to another track? Yes, of course. No doubt about it. But what if there was another person tied-up on the other track? The decision whether to pull the handle or not becomes inevitably harder. This famous philosophical conundrum applies in a similar, yet – fortunately – less gruesome way, to the European Court of Human Rights. The backlog in cases, the failure of states to implement the Court’s judgments, the increasingly harsh (political) criticism on the Court, and the shortage of resources have put a strain on the proper functioning of the European Convention on Human Rights’ system. This has given rise to the question of whether the Court should continue to provide justice to each applicant, possibly at the cost of the Convention system (track one), or whether it should focus on providing general justice, by ensuring justice for as many individuals as possible, even when it may come at the cost of the applicants before the Court (track two). This dilemma between individual and general justice is also relevant for the Court’s recent procedural turn… Continue reading
The division of power between the legislator – represented by ‘the political’ – and the judge – represented by ‘the legal’ – is a centuries-old dilemma. The question on which position both powers take in the constitutional context is an everyday reality for the (constitutional) lawyer. The balance between these powers often turns into a tense relationship – a tension that becomes especially tangible after courts important judgments, such as the Urgenda case. Cases seem increasingly to end up in court because politicians have no answer to the issues at hand. If in such a case a court makes a decision, then politicians are eager to emphasise that the court has illegitimately taken up the role of the democratically elected legislator and that it is up to the people to make a decision; not the court. The question, however, is whether this criticism is always justified. Do politicians indeed try to protect the institutional balance as set out in the Constitution? Or do they act as sore losers, looking for a scapegoat for their own failure? Continue reading
The #metoo campaign has once again shown what social media are capable of: stirring a worldwide debate on important issues for people and society and questioning power structures that are not or cannot be put on trial in the same way in traditional media, politics and courts. But also: destroying reputations, careers and relationships, creating large-scale gossip and speculation and forcing people to their knees who know that there is no chance to defend themselves against the storm unleashed by this puny but unassailable mark.
At the same time, human rights treaties not only state that the human body is inviolable, but also stipulate innocence until proved guilty. But what good does this? People are groped involuntary on a massive scale and at the same time people are subjected to a rhetoric of naming and shaming without due process. In this blog, I argue that the presumption of innocence has been neglected wrongfully by lawyers and that now is the time to let it live up to its expectations, also with regard to the media. Continue reading
Human rights cases often concern politically sensitive matters. An example is the case the European Court of Human Rights decided two weeks ago on the Beslan hostage taking drama. In 2004, about 800 children and 300 of their parents were taken hostage in a school in Beslan, Russia, and were held in the school building under very harsh conditions. Several of the male hostages were executed in full view of the children. After unsuccessful negotiations with the hostage takers, the authorities decided to storm the school and end the siege. Much is unclear about what happened, but some powerful explosions occurred, killing dozens of people, and a fire broke out, which killed even more children and their parents. Over 330 people lost their lives and hundreds more were wounded. Not satisfied with the way in which the authorities responded to the occurrences, some of the victims and their relatives approached the European Court of Human Rights and asked it to examine if the Russian authorities had done enough to protect their lives and safety. Given the context of terrorism and civil strife in the North Caucasus, the case was of tremendous political sensitivity. Moreover, the facts were disputed and it was far from clear who should be considered to bear primary responsibility for the killing of so many children and their parents – the terrorists or the Russian authorities. Clearly, thus, this is an extremely hard case for the European Court of Human Rights to decide, and the question may arise what approach it should choose in dealing with it. Continue reading