Tightrope dancing: Judicial attitudes towards Dublin transfers to Greece. A study of Dutch and Belgian case law

Photo credits: Krzysztof Hepner on Unsplash

Lynn Hillary

Open University of the Netherlands

lynn.hillary@ou.nl

Introduction

Alongside the current discussion on the relocation of unaccompanied minor migrants from Greece to other EU Member States, another dialogue is ongoing: restarting ‘Dublin transfers’ from the other Member States to Greece.

In principle, the Dublin Regulation (No. 604/2013) would require the first Member State where someone submits an application for international protection to be responsible for that application, based on the principle of mutual trust. The principle of mutual trust between the EU Member States requires them to trust one another in complying with EU law and recognizing decisions made in their civil and criminal justice systems, asylum law and family law. However, Dublin transfers to Greece had been suspended since 2011 because of possible violations of Article 4 of the EU Charter of Fundamental Rights, i.e. the prohibition of torture and inhuman or degrading treatment or punishment. In practice, this meant that the Member State in which someone submitted an asylum application was responsible for that application instead of Greece, even if the person had previously applied for asylum in Greece.

However, in 2016, the European Commission recommended that the Member States consider resuming Dublin transfers to Greece. The Commission Recommendation formulated modalities for the resumption of transfers, such as individual assurances concerning the circumstances the asylum seeker would find herself in and advice against transferring vulnerable asylum seekers. Based on this Recommendation, some Member States attempted restarting Dublin transfers to Greece, which in turn led to appeals by asylum seekers and thus domestic case law.

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Contact tracing application vis à vis digital rights in a COVID-19 India


Source: iXimus - Pixabay

Ritwik Prakash Srivastava

National Law Institute University, Bhopal, India

ritwiksrivastava.ug@nliu.ac.in

In the wake of COVID-19, the Indian government launched and mandated the use of a contact-tracing application, Aarogya Setu (smart phone application). The Indian Prime Minister, Narendra Modi, in his address to the nation on 14 April 2020, urged the citizens to download the application to supplement the State’s struggle against the contagion. What started as a voluntary step, was first made mandatory for employees of the public and even the private sector, and then for entire districts. Failure to do so gives rise to a criminal penalty.

This brings to the forefront the conflict between public health and the right to privacy of individuals. While contact-tracing has been effective, it is also pertinent that such a mechanism is developed within the frameworks of existing laws, and with a due regard for human and constitutional rights. Interestingly enough, the Supreme Court of India, in its landmark judgment of K.S. Puttaswamy v. Union of India in 2017, declared the right to privacy a fundamental right in India. It stated that “if the State preserves the anonymity of the individual it could legitimately assert a valid state interest in the preservation of public health (…)”.

Aarogya Setu and India’s Domestic Law

Justice Kishan Kaul, one of the judges of the bench adjudging the above-mentioned case, in his opinion at paragraph 62, recognised every individual’s right to decide for themselves the extent of information about them that could be shared with others. However, every fundamental right in India comes with its reasonable restrictions. As per paragraph 180 of the section of the judgement authored by the then Chief Justice of India, Justice Khehar, Justice R.K. Agrawal and Justice Dr D.Y. Chandrachud, before such restrictions on the right to privacy can be placed, five criteria needs to be met: (1) The State must show the existence of valid legislation which permits the restriction; (2) the restriction must be in pursuit of a legitimate aim; (3) have a rational nexus with such aim (4) be the least restrictive method to achieve such aim, and (5) be proportionate to the aim.

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The Feminization of Human Rights?

Felisa Tibbitts

Netherlands Institute of Human Rights (SIM), Utrecht University, The Netherlands

f.l.tibbitts@uu.nl

Some years ago, when teaching a human rights course at Harvard’s Kennedy School of Government, I noticed that the composition of my students was overwhelmingly female. I made a mental note of this and began asking colleagues who were teaching human rights in other higher education institutions about the gender balance in their classrooms. It was the same story: mostly women.

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Tackling violence against women in the Netherlands: some thoughts on the GREVIO baseline report on the Netherlands


Photo credits: Anthony Tran - Unsplash

Adriana van Dooijeweert

President, Netherlands Institute for Human Rights

Introduction

Just like everywhere in the world, also in the Netherlands violence against women is a widespread and serious problem. The Netherlands Institute for Human Rights (the Dutch national human rights institution) has had this issue on the agenda since its establishment. It has, for example, encouraged the Netherlands to ratify the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) and discussed with Dutch government officials and professionals, on various occasions, the human rights aspects of violence against women.

National human rights institutions fulfil an important role in promoting and protecting international human rights standards. It does so, among others, by monitoring the implementation of the recommendations of regional and international monitoring bodies. The Netherlands Institute for Human Rights (“the Institute”) therefore takes due note of the comprehensive report of the Group of Experts on Violence Against Women (GREVIO) on the Netherlands situation, published on 20 January 2020. GREVIO monitors the implementation of the Istanbul Convention. GREVIO based its findings on the report submitted by the Dutch government, reports submitted by the Institute and by many non-governmental organisations, in addition to information obtained during a five-day evaluation visit to the Netherlands. All reports, as well as the government response to GREVIO’s report, can be found on the country page on the Netherlands. In this blog, I discuss key recommendations from GREVIO’s Baseline report addressed to the government.

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Youth and the Right to be Elected: Are We Beginning to Explore an Uncharted Frontier?

Daniella Zlotnik Raz

University of Haifa, Israel

daniella.zlotnik@gmail.com

Introduction

Youth political rights and political participation is (still) evolving in academia as a new frontier of children's rights. To date, much of the changes and discussions 'on the ground' concern lowering the voting age, developing mechanisms to enable youth participation in government, and acknowledging youth' role in political and social protest.

While the attention is focused on youth' right to vote and political participation, the closely linked right to be elected remains overlooked. This commentary will briefly explore what, if at all, the UN Convention on the Rights of the Child (CRC) can contribute to the discussion on youth and the right to be elected, by considering the CRC provisions themselves, as well as relevant views of the CRC Committee on this theme. Based on a children's rights perspective, the commentary will also review a recent decision by the Israeli High Court of Justice on youth' right to be elected, and consider what can be learned from this case example in relation to litigating youth' political rights in the future.

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Promoting health and environmental rights through participatory noise mapping in the city


Photo credits: https://scistarter.org/noisetube

Anna Berti Suman*

Tilburg Institute for Law Technology and Society, Tilburg University, Tilburg, The Netherlands

*Telephone: +31134668403; E-mail: a.bertisuman@uvt.nl.

Postal address: Prof. Cobbenhagenlaan 221, 5037 DE Tilburg, The Netherlands.

Excessive noise levels represent a pressing issue seriously affecting people’s health and wellbeing in contemporary cities. High levels of noise can threaten both mental and physical health, causing persistent stress and impinging over environmental rights such as the right to a healthy environment. The European Court of Human Rights (ECtHR) has often reflected on the connection between environmental protection and human health. In a number of cases, some expressly dealing with noise-associated nuisances, the ECtHR has been lenient in identifying causal links between environmental harm and resulting health effects. In the Dubetska case, for example, the Court found a breach of Article 8 of the European Convention on Human Rights (ECHR) enshrining the respect for private and family life because of severe water pollution. The Court noted that it is “often impossible to quantify [pollution] effects in each individual case” (para 106) but it suffices that pollution is “in clear excess of applicable safety standards [creating an] elevated risk to health” (para 111) to determine a breach of Article 8 ECHR. Specifically addressing noise-induced pollution, in the Deés case, the Court again affirmed that the mere fact that the noise exceeded substantially statutory norms was sufficient to constitute a violation of Article 8 ECHR. This open interpretation may allow citizens monitoring their environment to stand in court for violation of their right to health or to a healthy environment whenever they can demonstrate a substantial exceeding of (national or international) environmental standards.

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Child-friendly procedures and practices for refugee and migrant children in Europe


Photo credits: Special Representative of the Secretary General on Migration and Refugees, Council of Europe

By Stephanie Rap

s.e.rap@law.leidenuniv.nl

On 9 December 2019 the Council of Europe (CoE) launched the report Promoting child-friendly approaches in the area of migration. A review of standards, guidance and current practices as part of the activities taking place during International Human Rights Week. In the report guidance is given to CoE member states on how to make their asylum procedures and practices more in line with the rights, interests and needs of refugee and migrant children.

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