Combining topic modelling and citation network analysis to study case law from the European Court of Human Rights on the right to respect for private and family life

In the case Oliari and Others versus Italy (Appl. No. 18766/2011, judgment of 21.7.2015), the European Court of Human Rights (ECtHR) held that Italy by banning same-sex and any other form of civil union for homosexual couples was violating Art. 8 of the European Convention of Human Rights (ECHR), the right to respect privacy and family life. The ECtHR examined the complaint of three same-sex couples regarding their inability to acknowledge their relationships under Italian law, thus coming to the conclusion that Italy has violated the European Convention of Human Rights by not taking into account the recent trends in the ECtHR case law (Vallianatos versus Greece, Appl. No. 29381/09 and 32684/09, judgment of 7.11.2013) and in the Council of Europe where nowadays 24 state members recognise same-sex civil unions. The ECtHR underlined that by omitting to legally acknowledge same-sex unions, Italian law not only failed to provide for the core needs of homosexual couples but also failed to adapt to the relevant Italian Corte Costituzionale case law that repeatedly called for their protection and recognition.

In This Issue

The European Court of Human Rights (ECtHR) has been considering whether same-sex couples should have the rights to marry and to be recognized as a family under the European Convention of Human Rights (ECHR) for over thirty years. In the 1980s the European Commission of Human Rights (the Commission) and the ECtHR respectively rejected the notion that same-sex relationships constituted a “family life” under Article 8 of the ECHR, and that post-operative transgendered persons had the right to marry under Article 12. However, throughout the 1990s and the first decade of the new millennium, the ECtHR handed down a body of judgments that incrementally liberalized these rights (albeit not always smoothly) in favor of LGBT persons. This evolution culminated in part on 24 June 2010, when the ECtHR passed judgment inSchalk and Kopf v. Austria.In that case the First Section of the ECtHR made a number of major, but seemingly contradictory rulings. For the first time in its history, the ECtHR ruled that same-sex relationships expressly constitute a “family life” under Article 8, and that the right to marry under Article 12 was not confined to opposite-sex couples in “all circumstances.” However, the ECtHR simultaneously ruled that Member States are under no obligation to protect that “family life,” by providing same-sex couples with access to marriage under Article 12, or an alternative registration system under Articles 8 and 14. The Grand Chamber denied the applicants' subsequent request for a referral.

In its case law, the European Court of Human Rights has acknowledged that national courts are bound to give effect to Article 8 of the European Convention of Human Rights (ECHR) which sets out the right to private and family life, when they rule on controversies between private individuals. Article 8 of the ECHR has thus been accorded mittelbare Drittwirkung or indirect ‘third-party’ effect in private law relationships. The German law of privacy, centring on the "allgemeines Persönlichkeitsrecht", has quite a long history, and the influence of the European Court of Human Rights’ interpretation of the ECHR has led to a strengthening of privacy protection in the German law. This book considers how English courts could possibly use and adapt structures adopted by the German legal order in response to rulings from the European Court of Human Rights, to strengthen the protection of privacy in the private sphere.

The European Convention of Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR) are binding on all of the countries featured in this book, with the exception of the United States and Taiwan. Despite this importance, however, the ECtHR treats the decision to exclude evidence, or not, as a question of domestic law with which it will not interfere unless the use of the evidence at trial would violate the right to a fair trial guaranteed by Article 6 ECHR. The ECtHR thus uses a balancing test not dissimilar to that used in England and Wales. While the ECtHR has never found a violation of the Art. 8 ECHR right to privacy in one’s home or communications to affect the fair trial right and thus require exclusion, it has, with the decision of Salduz v. Turkey in 2009 developed strong case law finding a violation of the right to a fair trial if a confession taken in violation of the right to counsel is admitted into evidence. It has also enunciated a categorical exclusionary rule for statements taken in violation of the Article 3 ECHR prohibition of torture or inhuman and degrading treatment and has extended this unequivocally to the physical fruits of the poisonous tree in cases of torture.

The ad hoc international criminal tribunals have had recourse to the case law of the European Court of Human Rights (ECtHR) in order to define the constituent elements of a number of crimes relating to torture or inhuman or degrading treatment. At the same time, this reference to the ECtHR case law has not been exclusive (the tribunals have made reference to other sources), and it has not always been decisive (in some cases, the ECtHR case law was not helpful). In any event, this use of human rights case law only happened in the early years of the tribunals. Once the constituent elements were defined, self-reference prevailed: the Chambers of the tribunals no longer referred to the human rights system in general or to the ECtHR in particular, but to previous judgments of the other Chambers or of the Appeal Chamber. This is also true of the tribunals that were created subsequently: the hybrid tribunals, such as the Special Court for Sierra Leone, and the International Criminal Court, have not felt compelled to refer to human rights case law, as precedents by other international criminal tribunals were available. Now, another phenomenon may develop: as the European Court is more and more involved in international humanitarian law and international criminal law issues, it may increasingly refer to the international criminal tribunals’ case law in interpreting the European Convention of Human Rights.

Activists in international courts: Backlash, funding, and strategy in international legal mobilization

Problem setting. Increasingly, European countries are legalizing euthanasia nationally. At the same time, this issue is a circle for scientific debate, as some experts believe that it is a natural human right that can be disposed of at its discretion. Others emphasize that no one can interrupt a person’s life, even herself. In order to summarize all positions and to determine unanimity on certain aspects of euthanasia, it is necessary to refer to the provisions of the European Convention of Human Rights, which in art. 2 proclaims the right to life and the case law of the European Court of Human Rights, which has argued for the possibility of a “right to die” as part of the right to life. The purpose. Analysis of the legal position of the European Court of Human Rights regarding the possibility of applying the euthanasia procedure, exploring the prospects of introducing this procedure into the national law. Analysis of recent research and publications. The problem of euthanasia is a matter of debate in the scientific community. This topic was researched by А.В. Malko, AS Nikiforova, O.V Khomchenko, I.O Koval, O.M Mironets, O.A Miroshnichenko, Yu.S. Romashova, K. Basovskaya, Yu.M. Rybakova, O.M Shchokin, S.V Chernichenko. Article’s main body. In science will distinguish 2 types of euthanasia - active and passive. Active euthanasia involves actions aimed at ending the life of a sick person, for example, by administering a lethal injection. Passive euthanasia involves discontinuation of medical care for a patient at his will, which in the future leads to death. Considering the issue of passive euthanasia, the European Commission concluded that it could not be interpreted art. 2 of the Convention as such, which gives the right to death, but everyone has the right to dispose of his life by giving appropriate instructions in the event of an incurable disease.. The issue of the “right to die”, the right to active euthanasia has been resolved in the case of Pritty v. The United Kingdom. The European Court of Human Rights in this case was not convinced that the “right to life” guaranteed by Article 2 of the Convention could be interpreted negatively. As for Ukraine, euthanasia in our country is being prosecuted and considered a crime. In particular, according to the Fundamentals of Healthcare Legislation, medical professionals are prohibited from taking deliberate actions aimed at ending the life of a patient who is terminally ill to end his or her suffering. The Civil Code of Ukraine contains a similar warning about the prohibition to deprive a person of his life at his request. Conclusions.The European Court of Human Rights does not consider that the content of art. 2 of the Convention it is possible to derive the “right to die”. This right does not come from the right not life, is not an independent right, can not be a fundamental right, to which all the guarantees of art. 2 of the Convention. With regard to passive euthanasia, the ECtHR does not, in fact, prohibit it; it proceeds from the human right to dispose of one’s life. Speaking about the introduction of the euthanasia procedure in the national legal order, the ECtHR did not give a clear assessment on this issue. In fact, the ECtHR has taken the position that it is not entitled to assess national legislation in terms of introducing effective mechanisms to protect their citizens’ right to life.

The article addresses the issue of judicial impartiality in civil procedure, which is relevant from theoretical and practical perspectives. The purpose of the article is to highlight the main approaches to judicial impartiality as an integral part of the right to a fair trial in terms of the paragraph 1Article 6 of the European Convention of Human Rights, as well as to analyze the Supreme Court's practice for compliance with the approaches to the interpretation of judicial impartiality developed in the case-law of the European Court of Human Rights. In the article the author uses general philosophical, general scientific and special research methods, in particular, dialectical, system-structural, logical and comparative legal methods, method of analysis and synthesis. The judicial impartiality is an integral element of the rule of law and the right to a fair trial. The European Convention on Human Rights and the case-law of the European Court of Human Rights played a key role in the development of international standards of judicial impartiality within the European region. The European Court of Human Rights developed a dual approach to judicial impartiality, distinguishing between subjective and objective impartiality. An additional approach to verifying the impartiality of the court in the case law of the European Court of Human Rights is to distinguish between functional and personal impartiality. The analysis of the Supreme Court practice shows that the latter has not fully accepted the approaches to judicial impartiality developed by the of the European Court of Human Rights. The article analyzes certain cases of the Supreme Court, in which, in the author's opinion, the Supreme Court incorrectly applied the case-law of the European Court of Human Rights in order to motivate its decisions. In addition, special attention is paid to the problem of the possibility of judicial disqualification on the grounds of the performance/non-performance of certain procedural powers by a judge. The article can be interesting for legal scholars and practitioners, PhD students and students of law universities.

This article studies the European Court of Human Rights (ECtHR) approach to country of origin information in its case law under Article 3 of the European Convention of Human Rights. It will first examine the standard set by the ECtHR on the use of country of origin information, followed by an assessment of the application of these principles by the ECtHR in its case law. The article specifically focusses on the use of country of origin information in expulsion cases of applicants from Somalia, Tamils applicants from Sri Lanka and applicants from Iran. The analysis of the ECtHR’s case law in this article will show that the ECtHR does not apply its own standards in a transparent and consistent manner. This raises questions as to the quality of the ECtHR’s assessment of the risk of a violation of Article 3.

Over the last two decades, the European Court of Human Rights (ECtHR) has been frequently called to pronounce itself on the legitimacy of bans of ethnic political associations or parties on the basis of the European Convention of Human Rights’ (ECHR) Freedom of Assembly and Association clause (Article 11). The Court found, in most cases, a violation on part of the state of article 11. I will look particularly at the Court’s case law concerning the compatibility of the bans of ethnic parties and associations with the rights granted in the Convention to these organisations. But why have certain countries, especially from South Eastern Europe, been particularly targeted by such jurisprudence of the ECtHR? In this article, I will argue that the (Jacobin) state nation concept, which different countries from South Eastern Europe took over from France, can help explain this situation.The article will be subdivided into three parts: The first part of this article will give a general introduction to the democratic paradox of banning political organizations. It will introduce to the jurisprudence of the ECtHR in relation to the violation of article 11 in cases concerning political parties.The second part will look at the ECtHR’s case law concerning the existence of ethnic associations or political parties from Bulgaria, Turkey, Poland, Macedonia and Greece.In the third part, we will clarify why such judgments, particularly relating to ethnic parties, have disproportionately affected certain countries. Most of these countries in fact are inspired by the heritage of the French state nation concept. The state nation concept builds on popular sovereignty, individual rights as opposed to group rights and the principle of the indivisibility of the nation. Although seemingly neutral, these characteristics have an implicit bias against minorities. The article will conclude by arguing that while, in the case of ethnic minorities, the Court has constantly upheld in its jurisprudence the rights of ethnic minorities, therefore reflecting a European standard established in this area, the same cannot be said about religious minorities, particularly when concerning Islam.

Ukraine became a member of the Council of Europe in 1995. Later on, on July 17, 1997 the Verkhovna Rada of Ukraine ratified the European Convention of Human Rights and Fundamental Freedoms (ECHR) and the First Protocol and protocols number 2, 4, 7, and 11 of the Convention in accordance with the relevant Act, which opened the way for Ukrainians to the European Court of Human Rights and to its enforcement practice. The most relevant contribution of ECHR is the inclusion into it of a provision which previewed a special possibility for the High Contracting Party to issue consent to the European Court of Human Rights (ECtHR) for monitoring cases where the initiator of the trial is an individual or legal entity, not a state. The Law of Ukraine “On the enforcement and the application of the case-law of the European Court of Human Rights” came into force in February 2006 and regulates relations arising from the duty of the state to implement the decisions of the ECtHR on cases in respect of Ukraine. This article notes that Ukraine is among the top five countries against the highest number of complaints is filed by legal entities and natural persons to the European Court on the grounds of the violation of human rights. The main purpose of this contribution is the following: to determine the main problems of the implementation of the ECtHR practice in Ukraine. The problem is that, despite the introduction in the law enforcement procedures of the law of the ECtHR judgments, “On the enforcement and the application of the case-law of the European Court of Human Rights”, Ukraine has not taken any real steps to improve legislation with regard to the ECHR due to a number of objective and subjective reasons. The tasks of the article are the following: to define a place of legislative and judicial bodies in the process of implementation EСtHR’s practice; to detect the ways of correction of the defects of the national legislation and improving the practice of Ukrainian courts at all levels. The research methods used in the article include the analysis of literary sources, including theoretical literature and research materials related to the subject of the paper, cases of the European Court of Human Rights, comparative analysis of judicial practice in Ukraine and Member States, statistical analysis. The right of individual complaint, an extraordinary need for the European Court of Human Rights and the volume of work led to his enormous overload, and today no one doubts that the future European system of protection of the rights laid down in the system itself, in its elements. In particular that the European control is based on the principles of subsidiary for national legal systems, also in the : the ability of national systems to interact with the European Court, willingness to accept the precedents of this Court; willingness to perform basic and effective filter for it. So in consideration of the importance of correct application of rules of the ECHR, and case-law of the ECtHR, and having regard to the analysis of application of these rules, we made the conclusions ( results of the article ) regarding the need for the legislator to take into account “pilot judgments” of the ECtHR, to make necessary amendments to the law “On the enforcement and the application of the case-law of the European Court of Human Rights” and determine the place of the practice of the ECtHR among other sources of the law in Ukraine. DOI: http://dx.doi.org/10.5755/j01.eis.0.6.1585

The Internet-related cases coming to the European Court of Human Rights provide a good illustration of the challenges posed to the protection of human rights as based on the European Convention of Human Rights drafted in 1950. Considering that the Convention is a 70-year-old instrument, the Strasbourg Court has to deal with these cases using the body of principles and interpretation methods and techniques that has been developed so far, and in particular the ‘living instrument’ doctrine. In this study I propose to explore some main threads in the Court’s jurisprudence on Internet-related cases, outlining the specific nature of Internet-related cases, discussing the problem of rights connected with the Internet as well as the impact of the Internet on such classical rights as freedom of expression and the right to privacy. I conclude that the Internet-related case law of the Convention is in a process of constant development. The Strasbourg Court has demonstrated that it is capable of dealing with Internet-related cases based on general Convention norms and using its well-developed interpretation techniques. The striking feature of Strasbourg’s case law is the ECtHR’s recognition of the considerable importance of the Internet as regards the exercise of freedom of expression, and in particular freedom to seek and access information. Although the ECtHR regards the Internet as a communication medium, however, it recognises its specific features which affect the performance of rights protected by the Convention as well as dangers it poses for the protection of human rights under the European Convention of Human Rights.

Guaranteed by the Constitution of Ukraine and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the right to respect for private and family life for those sentenced to life imprisonment, in terms of its implementation and scope, differs from this right for free individuals. But it is undeniable that those sentenced to life imprisonment are not deprived of this right in full. This is consistently emphasized in its practice by the European Court of Human Rights. In addition to private and family life being a natural need of every individual, its realization, particularly in forms such as maintaining and supporting connections with the outside world, is a means of re-socialization for individuals undergoing punishment in the form of life imprisonment. The benchmark for the development of Ukrainian legislation and law enforcement practice is the practice of the European Court of Human Rights. Therefore, the legal positions of the European Court of Human Rights regarding the right to respect for private and family life for those sentenced to life imprisonment should be studied and generalized. The precondition for the further development of any scientific direction is the comprehension of what has already been done by previous researchers. The conducted research has shown that Ukrainian scientific literature has addressed the legal positions of the European Court of Human Rights regarding various aspects of the right to respect for the private and family life of prisoners, broadly understood (including those in custody, sentenced to a certain term of imprisonment, and those sentenced to life imprisonment): 1) the conclusion that the restriction of the right to respect for private and family life for persons deprived of liberty, provided it is lawful, is not incompatible with the Convention; 2) the conditions/criteria for the legality of such restriction, implemented by national authorities; 3) the systematic identification of the main types of violations of the right to respect for family life recorded in the decisions of the European Court of Human Rights regarding convicted persons and persons in custody; 4) special protection of correspondence between an inmate and their lawyer; 5) differentiation of the spheres of application of Article 8 with other articles of the Convention, primarily Article 3; 6) determination of the main trend in the practice of the European Court of Human Rights «in the penitentiary sphere and in the criminal justice system as a whole,» which consists of constantly raising the standards of human rights by the Court; 7) ignoring the need for an individual approach in applying restrictions on the rights of persons deprived of liberty. The analysis of the existing body of scientific literature shows that existing studies are mainly based on the analysis of the European Court of Human Rights practice regarding foreign states and, with one exception, do not distinguish the legal status of those sentenced to life imprisonment among other deprived individuals. Since the publication of the analyzed monographs, 9–10 years have passed. During this time, the European Court of Human Rights has developed a significant body of practice regarding Ukraine, taking into account the Ukrainian context. Therefore, the analysis of the European Court of Human Rights decisions specifically regarding Ukraine should be a priority. Additionally, they should be analyzed in full. Such an analysis will allow, in conjunction with demonstrating the Convention’s standards regarding the right of those sentenced to life imprisonment to respect for their private and family life, to show the systematic and partial problems in this area identified by the European Court of Human Rights in its practice regarding Ukraine.

The history of Human rights in the French legal order started well before the creation of the European Convention of Human Rights(ECHR). This chapter is divided into three main parts. First, it offers background information on the status of the ECHR in the French legal order, the judicial control mechanisms aimed at protecting human rights and the binding force of the Strasbourg Court's case law. It then discusses key issues concerning minorities and vulnerable groups in France, which have given birth to an important body of case law in Strasbourg regarding the protection of foreigners, religious minorities, equality and non-discrimination, as well as the protection of 'non-majoritarian' views (part II). Subsequently, this paper focuses on litigation trends in the European Court of Human Rights in these different fields (part III) and gives an account of Strasbourg's jurisprudence. Keywords: ECHR; France; Human rights; Strasbourg