28 November 2024
Of Minor Benefits and Major Costs
Is general and indiscriminate data retention permissible under the EU fundamental rights framework? In La Quadrature du Net II, the Court tilts the metaphorical scale towards data retention. The take-away could contribute to the enlargement of privatised surveillance that rests on a generalised pre-emptive data retention scheme. The ECJ’s findings could cement intrusive practices emerging from the counter-terrorism narrative to regular state practice at the expense of fundamental rights protection. Continue reading >>
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26 November 2024
More Protection for Victims Through Data Retention
Mass data retention is all about proportionality. The threat level determines the proportionality of the means – both of which are subject to the perpetual flux of time. Data retention is intended to protect victims of digital crimes. To protect freedom online, our security services urgently need to be able to access stored IP addresses. The alarming developments in our security situation are calling many certainties from the past into question. This also involves a re-evaluation of traffic data retention. Continue reading >>
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21 December 2023
Constitutional Identity vs. Human Rights
In two recent Latvian cases concerning the Russian-speaking minority decided respectively in September and November 2023, the ECtHR made clear that protection of constitutional identity has now been elevated to a legitimate aim for a differential treatment under the Convention. This post explores how the protection of constitutional identity has been deployed to enable a collective punishment by association with a former occupier, and how the ECtHR’s reasoning has effectively endorsed such a punishment, which is unbefitting of a liberal democratic system the ECHR aspires to represent. Until the three cases were decided, no liberal European democracy could argue without losing face that suppressing a large proportion of its population was its constitutional identity – one of the goals of its statehood. Today, this claim is seemingly kosher, marking a U-turn in the understanding of what the European human rights protection system is for minorities in Europe. Continue reading >>
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23 August 2023
How a Boat Trip to Estonia Challenged the Foundations of the Finnish Sentencing System
In August 2015, a Finnish citizen embarked on a tour from Finland to Estonia and back on a pleasure boat. The private boat trip quickly evolved into a matter of great significance. His journey not only challenged the foundations of the Finnish sentencing system but also shed new light on the requirements of proportionality that EU law may impose on national sentencing systems more broadly. The boatman was fined for not carrying his passport. He contested the penal order, and the case was heard by the district court before being escalated to the Supreme Court of Finland. The Supreme Court sought a preliminary ruling from the European Court of Justice (ECJ), which delivered a verdict that struck at the very core of the Finnish sentencing system. Continue reading >>
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28 February 2023
“Like Handing My Whole Life Over”
On 16 February 2023, the German Federal Administrative Court (BVerwG) ruled that the practice of regularly analysing data carriers, including mobile phones, by the Federal Office for Migration and Refugees (BAMF) when registering asylum applicants is illegal (BVerwG 1 C 19.21). The judgement arrives after the Gesellschaft für Freiheitsrechte’s (GFF) efforts to reveal this practice’s details and take legal action against its use in the asylum procedure. In this post, we briefly overview this practice and analyse this judgement and its implications. We argue that although this judgement represents an important victory for asylum seekers’ and refugees’ data protection and privacy, some controversial aspects of this practice still require clarification. Continue reading >>
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04 February 2022
Property, Proportionality, and Marginality
On 31 January 2022, the Irish Supreme Court delivered a landmark judgment that collapsed, at least in respect of remedies, a previously rigidly-drawn distinction between the private law rights and the public law obligations of housing authorities. The judgment breaks important new ground in emphasising the underprivileged and marginalised status of the Travelling community, and furthermore, in identifying that status as a factor that could weigh against the granting of an injunctive remedy. Continue reading >>
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20 January 2022
Curing the Symptoms but not the Disease
Traffic violations are not a proportionate justification to effectively deprive a person of her EU citizenship. This may sound obvious but in reality it was not, as the crucial Grand Chamber case of JY decided on January 18 demonstrates. This is a significant yet predictable addition to the edifice of EU citizenship post-Rottmann. Regrettably, the forward-looking judgment is myopic up to the point of an error of judgement as to the fundamental challenges at play in the factual constellation at hand. Continue reading >>
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12 April 2021
Australia and the right of repatriation
A key pillar of Australia’s response to the COVID-19 crisis has been its closure of international borders. Since Australia’s constitution lacks an express bill of rights, Australians stranded abroad have turned to the United Nations as a last resort. Continue reading >>06 June 2020
It’s the Autonomy (Again, Again and Again), Stupid!
On the 5th of May 2020, the German Federal Constitutional Court (FCC) delivered its anticipated judgement on the PSPP case. This decision once again reveals the problem of autonomy between constitutional orders and the connection between autonomy and conferral. Conflicting methodologies, however, if understood as a criterion to ascertain competence on behalf of one of the autonomous orders, can never be resolved without the definition of a judicial last word. Continue reading >>26 May 2020