RELINQUISHMENT TO THE GRAND CHAMBER: THE CLIMATE CHANGE CASE

INTRODUCTION:

On Friday, 29th April, the European Court of Human Rights [ECtHR] declared that the Swiss Climate Case [Verein KlimaSeniorinnen and Others vs Switzerland] was relinquished to the Grand Chamber. The competent Chamber of the ECtHR relinquished authority to the Grand Chamber in compliance with Article 30 of the ECHR and Rule 72 (1) and (2) of the Rules of the Court. This relinquishment can be utilized, firstly, when the 7 judges agree that the issue raises a ‘grave question impacting the interpretation of the ECHR or its Protocols, or secondly, where there is a chance of deviating from preceding case laws’. 

FACTUAL BACKGROUND:

The Swiss Climate Case involves a complaint filed by a Swiss Association and its members [a group of elderly individuals] who are protesting against the effects of global warming on their health and living standards. The applications mentioned three primary issues: first, insufficient climate policies in Switzerland that infringe upon the right to life and health under Articles 2 and 8 of the ECtHR; second, the Swiss Federal Supreme Court dismissal of their cases on irrational grounds, in breach of Article 6 of the Convention; and third, the courts and Swiss officials non-compliance with the subject-matter of their complaints, in breach of Article 13 of the Convention. 

The significance of the Swiss Climate case is that it will be the first case of climate change adjudicated by the ECtHR. Although Duarte Agostinho and Other was the first case to bring up the topic of climate change, the Swiss Climate Case and Agostinho address different legal issues.

RULE:

The competent Chamber of the ECtHR relinquished authority to the Grand Chamber in compliance with Article 30 of the ECHR and Rule 72 (1) and (2) of the Rules of the Court. This relinquishment can be utilized, firstly, when the 7 judges agree that the issue raises a ‘grave question impacting the interpretation of the ECHR or its Protocols, or secondly, where there is a chance of deviating from preceding case laws’.

In the case of Tatar vs Romania, the Court emphasized that pollution can damage the personal and family sphere of an individual because pollution damages the individual’s well-being and health. Further, the government has a responsibility to safeguard its people by governing and controlling the authorization, establishment, functionality and security of industrial operations, particularly those that are hazardous to the environment and human health. 

ANALYSIS:

i.                        VICTIM STATUS: 

The admissibility stage, particularly the acknowledgment of ‘victim status’ will be the initial obstacle for the Swiss Climate Case. According to Article 34 of the Convention, applicants can allege ‘to be the victim of an infringement’ of the rights in the Convention by one of the states.  If the claim is an omission to undertake appropriate measures mandated by a constructive obligation, the legal evaluation will invariably need at least an inquiry into whether the complainants have victim status.  Further, to be a victim of an infringement, the applicant must demonstrate that he/she was ‘directly impacted’ by the actions complained of, like in the current case, the allegedly omitted implementation of necessary actions despite an international duty binding upon Switzerland. 

In the case of Cordella vs Italy, the Court ruled that persons are ‘directly affected’ by the measures complained of if there is the persistence of a circumstance ‘of great environmental danger’, in which the environmental risk ‘will become potentially detrimental to the well-being and health of those who are subjected to it’. The Swiss climate case fulfills that standard because the Swiss authorities have not taken positive action to protect the elderly persons who will be subjected to intense heat waves in the future.

The applicant in Swiss Climate contended that the applicant organization should be given representative status for its members. This contradicts the previous precedent, as the Court does not consider petitions in the public interest [‘actio popularis’]. However, in the case of Fadeyeva, the court stated that because there is no  ‘right to nature preservation’ in the Convention, in cases of environmental deterioration ‘the involvement must personally affect the household, home or private affairs of the applicant’ to invoke Article 8 of the Convention. 

  1. POSITIVE OBLIGATION IN THE CONVENTION: 

Generally, positive duties are those which compel member states to undertake certain actions. They are essential where there is (I) a known and serious danger to the exercise of a right, and (II) the State has the potential to restrict, mitigate a danger or remedy its repercussions. A pre-requisite is that the State was aware of, or should have been aware of, the presence of a serious and imminent threat to a major legal value. In the case of Balmer-Schafroth and Others c. Switzerland, the Grand Chamber pointed to a ‘threat that was not just significant but also precise and, most importantly imminent’.

The two kinds of positive duties which have been recognized by the ECtHR to safeguard can co-exist in the same situation, whether it’s in the context of domestic violence or various other risks. The Swiss Climate case essentially turns on the issue of preventive positive duties under Articles 2 and 8 of the Convention. The applicants note the negative consequences of the absence of climate change prevention measures. See the case of Bevacqua and Others vs Bulgaria.

The case law and precedent of the Court acknowledging the duty to safeguard against widespread risks by legal and other actions [and the recognition that there can be potential victims, before damage has occurred] has conceptual implications on the evaluation of the victim status provision. If claims of omissions to act in respect to particular, one-time risks will receive preferential consideration over claims of breaches of duties to safeguard against potentially serious risks on a broader level, protection would be rendered ineffective. Certainly, the positive duties at issue in the current case are primarily directed at the law-maker [and as the Swiss Federal Tribunal stated, the duties are consequently of importance to political entities]. However, because of the lawful character of the duties, their invocation shouldn’t be considered inadmissible due to procedural grounds. 

CONCLUSION:

Humanity is facing a worldwide climate catastrophe that is already having devastating consequences for human rights. To avoid disastrous climate change and the wave of human rights abuses that would follow, immediate, comprehensive, and revolutionary reforms are essential. When States fail to adopt effective measures to accomplish the objectives of the Paris Agreement, international human rights courts may and should give adequate protection to elderly people or other vulnerable persons who are endangered by catastrophic heat waves and its related consequences. The Court’s reaction to this conclusion is expected to set the stage for how it handles future climate issues, and it will be echoed in the court rulings of domestic courts as well as various other human rights organizations. The ECtHR shall act as a Court of Law within the scope of its jurisdiction, always keeping in account that Convention protections must be practical and genuine, not fictitious.

Anti-LGBTQ+ Protests in Hungary: Limiting Representations of Homosexuality to Minors

In June 2021, the Hungarian Parliament amended various laws that limit the spread of information regarding homosexuality and sex reassignment (H&SR) for juveniles and school children. Among other things, the law: 1) prohibits minors from accessing material encouraging or depicting H&SR or any other type of deviance from one’s sex designated at birth; 2) forbids delivering instruction about the aforesaid information and restricts sex education in registered organizations; and 3) forbids broadcasts exhibiting H&SR while bringing a new rating – Category V (not intended for children) – to any such programming. On August 6, 2021, the scope of this decree was expanded to include places near churches and also in schools. 

These modifications are due to rising anti-LGBTQ+ views, which fall on the heels of previous legislative backsliding, including: 1) restrictions on same-sex marriage, as well as the heteronormative definition of conjugal relationships and family groups (2013); 2) university prohibitions on gender studies (2018); 3) denial of official gender acknowledgment by substituting ‘gender’ with ‘sex at birth’ in the Civil Registry (2020); and 4) the constitutional restriction on child adoption for unmarried adults (2020). 

Despite repeated requests from the European Commission (EC) and many European Union (EU) legislators, Prime Minister (PM) Viktor Orban’s government refused to remove the modifications. This comes after international condemnation of Hungary’s apparent association of sexual and gender identity [“SGI”] with pornography and pedophilia. In reaction, the EC has initiated a “rule of law” action against the Hungarian administration, claiming a breach of the values of dignity and equality as mentioned under Article 2 of the Treaty on the Functioning of the European Union. Violations are likely to occur for a variety of reasons, including:

  1. Article 1 [dignity], 7 [expression & information], 11 [respect for private life], and 21 [non-discrimination] of the EU Charter of Fundamental Rights for failing to substantiate the damage that such exposure has brought to children’s general well-being;
  2. Article 34 & 56 of the Treaty on the Functioning of the EU by failing to show that the limitations were properly reasoned, non-discriminatory, and ;
  3. Article 3 of the Audiovisual Media Services Directive, which imposes excessive and discriminatory constraints on the open dissemination of audio-visual media across borders; and 
  4. Disproportionate limitations on ‘information community services’ from other Member State under Article 3 of the E-Commerce Directive. Those limits may be enforced for the ‘safeguard of juveniles’ if there is a detriment to the cause or a substantial and grave danger of harm.
  5. Article 10 [ right to freedom of expression] & 14 [ right to non-discrimination] of the European Convention of Human Rights for limiting free discussions about gender identity and sexual orientation out of concern of ‘brainwashing youngsters’, and for expressly labeling LGBTQ+ material as undesirable and immoral.

The latest law of the Hungarian Parliament prohibits problems relating to the LGBTQIA+ population from being presented on prime time media. This has  the consequence of entirely eliminating the opinions of the community from public debate, thereby depriving them of their right to be heard. Similarly, while the amendments affected the rights of LGBTQIA+ people, their opinions were largely ignored during the legislative process. Furthermore, by prohibiting the simple representation of homosexuality to children, the legislation seeks to obscure the population. The purposeful obfuscation of the LGBTQIA+ population undermines its presence in society. As a consequence, familiarity and behaviorals standards are not sufficiently formed, thereby causing the interplay to be defined by the status quo inequality. 

Similar to Russia’s controversial ‘Gay Propaganda’ Law [2013], which, prohibited minors from being encouraged to engage in ‘non-traditional sexual unions,’ these modifications must be subjected to the same level of worldwide outrage and examination. Russian legislation made it illegal to make public declarations or posts about SGI, resulting in the imprisonment of numerous gay rights advocates. The European Court of Human Rights (“ECtHR”) found an infringement of Article 10 [freedom of expression] & 14 [non-discrimination] following the petition of three such advocates. While the Russian government contended that societal acceptance of homosexuality was inconsistent with Russian societal norms and family ideals, the ECtHR cited a broad European agreement concerning the acknowledgment of gender identity and self-determination. The ECtHR found that the administration had failed to show how open homosexuality would have an adverse influence on Russian family ideals and norms. On the contrary, the Court found that sharing impartial information and scientific on SGI has a good impact on public health care and awareness. The right to exhaustive and non-discriminatory sexual education [Article 28], the right to acquire and transmit knowledge and thoughts of all forms [Article 13], and the right to receive contents targeted at devotional, social, physical well-being, and moral [Article 17] are all guaranteed by the Convention on the Rights of the Child, which binds both Hungary and Russia. The ECtHR stated in a detailed dissection of the claims made by Russian attorneys, by passing such laws, the Russian government promotes discrimination and ecnourages hompobhia, which is inconsistent with the values of fairness, diversity, and tolerance in a democratic country”. 

Opponents have compared the amendments with this propaganda, which according to independent experts has exacerbated societal hatred and fueled vigilante assaults against LGBT persons in the EU’s eastern neighbour. Nevertheless, if left unaddressed, the implications of these institutional reforms in Hungary could be disastrous. For one, this kind of nationalist discourse creates in-groups and out-groups, gaining support by inventing imagined concerns to the nation-state.  As a result, the LGBTQ+ group is regarded as a domestic threat as well as a foreign impact. The introduction of the phrase ‘gender ideology’ implies a refusal of fundamental sexual liberty and privacy rights. Conservative nationalists frequently give the phrase a stereotyped connotation, blaming it on so-called ‘Western liberal innovations’ of transgenderism, gender flexibility, and feminism, etc. 

As evidenced by multiple empirical studies performed over the last decade, Hungary’s persistent and intrusive effort against the LGBTQ+ community has left the population incredibly insecure in their own country. In 2010 & 2017, the Hatter Society conducted a comprehensive survey, finding that LGBTQ+ students face constant discrimination in schools.  According to a 2010 study [n=1991], 1 in every 5 students has faced discrimination at school. As per the findings of a 2017 survey, in an online poll of 928 LGBTQ+ students aged 13 to 21, more than 51% & 70% of participants indicated they had heard transphobic and homophobic statements from other classmates, professors, and school personnel regularly or often in the prior school session, respectively. In fact, 35% of those polled stated that the school officials never interfered. In addition, approximately 64% had experienced vocal and 22% had experienced physical abuse at school s due to their sexual identity. More than 56% of individuals who had revealed their sexual identity had been verbally abused (and 19% physically abused) in the prior school session. 

These emotions of uneasiness and insecurity at school can have a negative impact on an individual’s potential to not only achieve academically but also to create effective connections with classmates and participate in intra/inter-school activities. As per the Millennium Cohort Study, prejudice in academic institutions, resulting in a nearly threefold increase in degrees of depression, low-life contentment, and self-harm characteristics in LGBTQ+ adults as contrary to non-LGBTQ+ adults. This not only hinders physical and emotional development, but the atmosphere of disinformation and a lack of discussion produces a stagnant repressive environment for future generations. 

Hungary’s amendments, on the other hand, are certain to collide with the same legal currents that brought down its Russian equivalent. The post-COVID-19 rehabilitation package earmarked for Budapest [a sum of about 7.2 Billion Euros] has been vetoed by the European Commission. While PM Orban contends that the same is true in the case of the LGBTQ+ policy, the European Union has repetitively reiterated that it is founded on Hungary’s failure to follow through on anti-corruption and autonomous judiciary commitments. Hungary, therefore, has only a few months to answer to the European Commission and confronts imminent dangers of being directed to the European Court of Justice for a judgment. As an instant response, Orban pledged to hold a national vote on issues like facilitating gender identity workshops, the accessibility, and promotion of gender reassignment surgery, as well as the exposure of information that may influence a child’s gender identity. Nonetheless, no referendum has been conducted as of October 2021, with questions about its legitimacy still lingering. 

Persistent prejudices and the execution of prohibited legislation, as demonstrated in Russia’s history, are frequently unaffected by the simple favorable outcome of such judicial procedures. It is critical, then, to keep a constant eye out for such new and hidden forms of social tyranny. 

CONCLUSION

The proposed legislative reforms are in violation of international and European human rights principles. Hungary has failed to fulfil its obligations as a member state by passing this law that targets homosexuals. The major argument given for doing so is to ensure that the mental and moral development is preserved. Moreover, in the matter of Alekseyev vs Russia, the ECtHR specifically stated that there is no scientific evidence to support the conclusion that the simple mention of homosexuality has a negative influence on children. The modifications leave no room for anything except one-sided and biased education, allowing stigmatisation and harassment of LGBTQ+ individuals to flourish.