This contribution focuses on the use made by the Belgian Constitutional Court and the Cour de Cassation of the right to privacy and the right to have data protected as anchored in the Belgian Constitution, the Belgian Data Protection Act and the European sources. The judgments are discussed along the lines of their impact on health privacy, workplace privacy, surveillance and social media privacy. Our analysis shows a great deal of European loyalty on behalf of the Belgian Constitutional Court towards European messages about these issues and privacy and data protection in general. In stark contrast stands the case law of the Cour de Cassation mainly focused on preserving prosecutorial interests and the employer’s interest to the detriment of privacy and data protection interests. Keywords: Constitutional Court, Court of Cassation, health privacy, workplace privacy, surveillance, social media privacy.
Paul De Hert
This chapter discusses the development of EU human rights law from the lens of EU criminal law. It starts this discussion by shedding light on the essential steps which CJEU undertook to enshrine fundamental rights in the Union, while gradually expanding its insistence to include criminal law safeguards. The chapter demonstrates that the multiplicity of actors involved in the human rights law landscape of the Union may further complicate the level of protection which the Union should afford. To this extent, the article first questions the scope of human rights obligations for Member States when they fall within the obligation to implement the criminal law of the Union, showing not only the restrictive character of the Court in interpreting the ChFR's scope but also its primary aim of inserting the primacy and effectiveness of EU law in face of broader human rights standards. Further, the chapter discusses the scope of relevance of the ChFR for EU criminal law. Building upon that, the chapter examines the case law of CJEU in regards to several fundamental rights from the lens of the criminal law of the Union. Finally, the chapter concludes that although there is a baseline human rights law identity of the Union with regards to the criminal law it is still necessary to take a step further to better follow the minimum standards of and comply with the ECHR.
Mathias Holvoet and Paul De Hert
This contribution aims to better understand how and why International Criminal Law (ICL) is pluralistic and how this pluralism is at least partly the result of the contesting actions, interests and backgrounds of the various ICL users and the context in which they operate. The hypothesis is that the adoption of a users’ perspective helps to understand ICL pluralism. After a discussion of the various dimensions of pluralism in ICL, this chapter identifies the most important ICL users. Nevertheless, it will also be demonstrated, through the example of the case against the former Chadian dictator Hissène Habré, that pluralism can be overcome, as ICL is also often a collaborative ingenious effort of various users which are able to align their interests in the pursuit international criminal justice.
Lina Jasmontaite and Paul de Hert
While some suggest that access to the Internet is a human right, in the EU, Internet access is primarily an economic concern. In light of the European Commission Communication ‘Connectivity for a Competitive Digital Single Market: Towards a Gigabit Society’, this chapter challenges the current EU approach to Internet regulation and questions whether a human rights-based approach to Internet access would be a better fit. After outlining the relevant regulatory provisions governing access to the Internet in the EU and its Member States (section 3), the chapter reflects on the EU vision of the Gigabit Society (section 4). Then, the chapter discusses Member States obligations with regard to Internet access (section 5) and explores three scenarios under which the right to access the Internet could be recognized as a fundamental right in the EU (section 6). The authors gather that the EU primary law provides for several options to recognize access to the Internet as a fundamental right. The authors point out that while a consensus among European countries to recognize Internet access as a fundamental right in domestic regulatory frameworks is emerging (section 7), policy-makers should carefully consider the scope (section 8) and limitations that could be imposed on this right (section 10). The authors suggest that to some extent the widespread application of eGovernment could strengthen, or even facilitate, the introduction of the right to Internet access in the EU (section 9). The authors conclude that recognition of Internet access as a fundamental right would be valuable as it would encourage policy- and law-makers, as well as civil society, to reconsider the scope and limitations imposed on this right.
Paul de Hert and Juraj Sajfert
Concerns about terrorism and organized crime have had an adverse effect on the protection of privacy rights. Police processing of personal data is seen as a complex and strongly developing area of law. At the level of the European Union, protection of personal privacy has been consolidated, impacting on national government institutions and law enforcement organizations. The leading argument is that harmonized data protection rules offer legal certainty and allow a smoother exchange of personal data, allowing police forces to deliver privacy and security to citizens. EU data protection rules for police and criminal justice authorities are analysed, including former data exchange instruments (such as the Prüm Treaties and the Swedish Initiative), and the recent 2016 EU Police and Criminal Justice Authorities Directive, the latter being regarded as a major step forward for the EU data protection regime. Furthermore EU agencies are discussed that process data in the area of law enforcement, namely Europol, Eurojust and the European Public Prosecutor's Office
Marijke De Pauw and Paul De Hert
Through a broad interpretation of article 8 ECHR, the Strasbourg Court has considered an increasing number of disability rights cases. In few cases, however, has it found a violation and identified states’ positive obligations. This chapter re-writes the Court’s judgment in McDonald v The United Kingdom, concerning the reduction in night-time care for an older disabled woman, in which the Court only found a partial violation based on procedural considerations rather than substantive ones. The authors propose an integrated approach to the interpretation of the ECHR, taking into account the broader normative developments concerning persons with disabilities, as reflected most recently in the UN Convention on the Rights of Persons with Disabilities. It also calls for the consideration of the intersection between disability and age, and the integration of the fundamental rights of older persons. More so, it is argued that integration of disability rights and older persons’ rights provided for in external instruments would have left the Court little choice but to assess Ms McDonald’s situation in terms of positive obligations. Such an approach would have increased the visibility of the rights of these particular groups and countered the derogation of the proportionality test as applied in the original judgment.
Eugenio Mantovani, Paul Quinn and Paul de Hert
The 2014 Chicago Declaration on the Human Rights of Older Persons, one of the most recent, informal efforts to establish the human rights status of older persons, sets out to tackle ageism, the stereotyping, stigmatization and/or discrimination of persons because of their advanced age. Departing from this non-binding Declaration drafted by lawyers well-versed in law and in gerontology, this chapter asks to what extent discrimination law is open to influencing ageist stereotyping and stigma. The authors focus on a series of selected cases from the European Court of Human Rights. The goal of the legal analysis is to learn if, and what kind of (legal) responses are available to ageist stereotyping and “other forms of discrimination”. Our analysis lends support to the claim that the European Court is partially open to influence ageist stereotyping. The law however does not reach anti-ageing expressions and messages. This situation falls short of the expectation of the drafters of the Chicago Declaration. The so called 2014 Chicago Declaration on the Human Rights of Older Persons, one of the most recent, informal, efforts to establish the human rights status of older persons, sets out to tackle ageism, the stereotyping, stigmatization, and/or discrimination of persons because of their advanced age. Departing from this non-binding Declaration drafted by lawyers well-versed in law and in gerontology, this article asks to what extent discrimination law is open to influencing bias, stereotypes, prejudices, and stigma of older persons (which the Chicago Declaration calls “forms of discrimination”). The authors draw the attention to a selected series of court cases from the European Court of Human Rights. Our analysis lends support to the claim that the European court is only partially open to influence ageist stereotyping. Anti-discrimination law however does not reach anti-ageing expressions and messages. This situation falls short of the expectation of the drafters of the Chicago Declaration but may represent the limits of what is possible for discrimination law in a democratic society that respects liberty of expression.