Court Of Human Rights Research Articles

Evropský soud pro lidská práva a islámský šátek. Náboženská svoboda versus sekularismus

As the proportion of migrants from different cultures increases in European countries the number of cultural conflicts concerning e.g. the wearing of religious symbols will increase as well. Those conflicts call for a solution which is in line with the principles of democracy, rule of law and the protection of fundamental rights and freedoms. In this context the European Court of Human Rights plays a fundamental role. In its former judgements of 200 I, 2005 and 2006 the Court reached at the conclusion that the prohibition of the Islamic scarf at schools in Switzerland and Turkey was in line with the principle of religious freedom which is laid down in Article 9 of the European Convention. In 2008 the Court dealt with secularism and religious freedom in France. In the cases of two female pupils excluded from French schools for having worn the Islamic scarf in class the Court found that the principle of secularism is compatible with Article 9 of the Convention. In general, the Court is very reserved as far as religious matters are concerned. Such restrictive interpretation is rather untypical for a Court which understands the Convention as a living instrument.

Vliv judikatury Evropského soudu pro lidská práva na harmonizaci trestního řízení v Evropě

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is a standard-setting instrument for questions related to criminal procedure. Several ECHR provisions refer to the principle of fair trial, personal freedom, non-retroactivity, the right to appeal in criminal matters, and the right not to be tried or punished twice. With respect to the practice of human rights protection in Europe, jurisprudence developed by the European Court of Human Rights (ECourtHR) has crucial impact on the current understanding of those procedural standards. The importance of Strasbourg case-law for the development of common European rules is unquestionable. The practice of national criminal courts as well as national legal doctrine has been heavily influenced by judgments of the ECourtHR. The systematization of case-law concerning criminal procedure is today considered to be an import task of European and national criminal law experts. In this article several factors limiting the impact of Strasbourg case-law on the harmonization of criminal procedure law have been pointed out. The heterogeneity of 47 different European legal orders and the flexible way of implementation of ECourtHR judgments complicates the development of precise rules which are foreseeable to lawyers in European countries. The case overload crisis of the ECourtHR which has been deepening in the past years also may significantly weaken the mechanism and its impact on harmonization. In general, criminal procedure rules formulated by the ECourtHR are mostly regarded as minimum standards. Since the adoption of the Amsterdam Treaty there have been discussions and projects concerning the harmonization of criminal procedure within the European Union. A proposal for a framework decision on certain procedural rights in criminal proceedings throughout the European Union has been presented by the European Commission in 2004. The future of the proposal is uncertain as several EU member states oppose the idea of a legally binding instrument on criminal procedure rights. In any case, a new EU instrument of harmonization has to respect the standards already set out by the ECourtHR.

National Courts between the European Court of Human Rights and the Court of Justice of the European Union. A Complicated Trio Relationship

The two main European courts share a common history. Based on this, it is now natural to talk about what the doctrine calls "cross-fertilisation", which leads to the "unionisation" of the Conventions and the "conventionalisation" of the European Union (Sionaidh Douglas-Scott, 2013, p. 5). However, there is not always uniformity of solutions between the two European courts, so that among them is the national judge, who must comply with both guidelines. This paper aims to explore how the national judge can accomplish this.

Hybrid Regimes and the Right to Access the Internet – Findings from Turkey and Russia in the Context of the Judgments of the European Court of Human Rights

The liaison between authoritarian political governance and Internet access is complex, particularly in hybrid regimes like Turkey and Russia. This paper focuses on the right to access the Internet as perceived by European Court of Human Rights (ECtHR) case law involving the two aforementioned countries, examining the balance between political interests and individual rights. Through comprehensive case comparisons, the present research outlines tensions between European human rights principles and the actions of hybrid regimes. The paper’s focal point lies in examining multiple landmark cases from Turkey and Russia to trace the evolution of ECtHR judgments on Internet freedom. Moreover, the paper reflects on broader implications, questioning whether ECtHR decisions enhance individual rights protection in the digital age and suggests avenues for improving Internet governance in hybrid regimes through international legal mechanisms. The paper is methodologically founded on a comprehensive literature review and legal case comparisons. The findings reveal a critical endangerment of right to access the Internet, most notably in Russia, whose withdrawal from the European Convention on Human Rights exacerbates concerns over freedom of expression and digital rights protection. In Turkey, frequent Internet blockages and legal reforms continue to erode digital freedoms. This research proposes that, despite ECtHR’s rulings aimed at reinforcing individual rights, the broader implications remain unresolved as hybrid regimes persistently challenge and undermine the principles of human rights protection in the digital age.

Internet Access as a Basic Human Right: An Ongoing European Legal Debate?

The pervasive use of Information and Communication Technology has inevitably interfered with human rights worldwide. This persistent interaction has led to questioning the legal nature of Internet access itself: is it an autonomous right or an implicit right? This paper examines the relevant case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) in order to assess whether Internet access is today a basic human right. The Strasbourg jurisprudence stems mainly from applications based on freedom of expression and the right to education. The ECtHR applies the binary axiological test: the right for which protection is sought and the competing interest/right provided by the European Convention on Human Rights. So far, it has not explicitly recognised the right to Internet access but rather the Internet’s widespread usage and importance. The Luxembourg case law constitutes proof of the economic dimension of the Union since the CJEU applies a threefold test, depending on the piece of legislation basing the application, and takes a moderate approach to questions involving human rights. Thus, the complementarity of ECtHR and CJEU case law proves that Internet access rather facilitates the exercise of other rights than is an autonomous right. For this reason, limitations are assessed on a case-by-case basis according to the requirements associated with each conventional right’s specific restrictions.

‘I Am Strong, I Am Invincible, I Am Woman’: A Commentary on the Semenya v Switzerland Case

ABSTRACT This article analyses the case of athlete Caster Semenya before the European Court of Human Rights through the lenses of queer legal theory and intersectional feminism. It seeks to challenge the social and medical assumptions, categories, and tendencies regarding sex and gender embedded in sports law, particularly in female athletics. Furthermore, it examines the eligibility regulations for female classification in international competition as gendered and racialised norms, which have thus far been applied exclusively to women; specifically to women with variations in sex characteristics, particularly those who do not conform to Western standards of femininity. This study looks at the European Court of Human Rights’ role in Semenya’s case and questions how queer and intersectional views would have influenced its assessment of whether the review carried out by the Court of Arbitration for Sport and the Swiss Federal Supreme Court satisfied the requirements of the European Convention on Human Rights. By critically examining the outcome of this case, this paper reflects on its impact on international female athletics and the human rights legal framework.

Monitoring, governmental data access and the invocation of Article 8 ECHR by legal persons

ABSTRACT The European Convention on Human Rights (ECHR) grants the rights enshrined in Article 8 to ‘everyone’. The European Court of Human Rights (ECtHR) has interpreted legal persons as falling within the scope of ‘everyone’ in various judgments, primarily concerning governmental searches and seizures. With the rise of digital technology, corporations now hold vast amounts of personal data, creating growing pressure to disclose such data to governmental surveillance agencies. This article examines ECtHR case law and applies theories of legal personality to assess the extent to which legal persons may invoke Article 8 in cases of governmental interferences affecting associated natural persons' rights. After outlining the legal framework, the article applies it to two use cases: governmental control of fishing vessels to identify regulatory infringements and signal intelligence practices affecting legal persons operating telecommunication infrastructure. These examples illustrate two types of governmental interference; methods impacting natural persons through data held by legal persons and interferences directed at the legal person itself. The article seeks to clarify the scope of rights under Article 8 for legal persons. The question of whether such interferences are proportionate is beyond the article's scope and remains a topic for future research.

The Price of Justice: Compliance and Damages Awarded by the Inter-American Court of Human Rights

The Price of Justice: Compliance and Damages Awarded by the Inter-American Court of Human Rights

Clearing Muddied Waters: The Relationship Between the Rule of Law and the Fight against Corruption in the Jurisprudence of the European Court of Human Rights

Clearing Muddied Waters: The Relationship Between the Rule of Law and the Fight against Corruption in the Jurisprudence of the European Court of Human Rights

A World of Difference: Overcoming Normative Limits of the ECHR Framework through a Legally Binding Recognition of the Human Right to a Healthy Environment

Abstract This article argues that while the Strasbourg human rights system provides a level of environmental protection through existing rights and their evolutive interpretation by the European Court of Human Rights, adopting an additional Protocol to the European Convention on Human Rights (‘ECHR’) on the right to a healthy environment (‘R2HE’) would strengthen safeguarding of environmental human rights. By comparing R2HE with the green human rights doctrine, I identify six normative limits within the current ECHR framework, which, as shown through an analysis of the historic and most recent case law, stem from the lack of legally binding recognition of an autonomous R2HE. In this vein, this study argues that the Protocol could enable forward-looking environmental adjudication and resolution of a wide range of situations affecting both the environment and human rights, foster a more consistent, predictable adjudication process, as well as support the Council of Europe’s goal of strengthening human rights protection in response to the triple planetary crisis.

Representation Reinforcement in the European Court of Human Rights

Abstract The European Court of Human Rights has long been cast as a defender of democracy in Europe. Yet, this idea has not always been at the core of the Court’s perception in the literature or indeed aligned with its jurisprudence which are often viewed in more Dworkinian terms. We suggest that there are good reasons, however, to take this idea more seriously in line with some of the early discussions on the function of the Convention. We argue that a good way to flesh out this idea is by drawing on the recent discussion on comparative representation reinforcement, sometimes labelled comparative political process theory, which builds on earlier work by US constitutional theorist John Hart Ely. Such an – expanded and updated – Elyian approach, we believe, has much to offer not just for domestic constitutional courts around the globe, but also for a supranational human rights court such as the ECtHR. We spell out what this might mean for the Court’s jurisprudence with reference to a few key areas of jurisprudence and the protection of minority rights in particular and sketch some implications for when to exercise restraint and when to intervene in a robust manner.

The Inviolability of the ‘Essential Core’ of Human Rights: An Intersectional Feminist Vindication

Navigating the jurisprudence of the United Nations (UN) Human Rights Committee, the UN Committee on the Economic, Social, and Cultural Rights, and the European Court of Human Rights, this article shows that while the two committees are by and large committed to the idea of absolute inviolability of “essential core” of human rights, the Court shows an erratic commitment to the same. This article dubs commitment to absolute inviolability as essentialist and commitment to violability (i.e., “essential core” being violable under certain circumstances), as non-essentialist, and argues in favour of an essentialist approach.This article argues that commitment to essentialist approach can potentially help solve the prioritization/hierarchization dilemma, reduce the implementation gap between Civil and Political (CP) and Economic, Social and Cultural (ESC) rights, and in a way contribute to reconciling the universalist agenda of the International Human Rights Law (IHRL) with cultural relativism— each of these specifically speak to the feminist approaches to, and critiques of, the IHRL more generally and the intersectional feminist approaches to IHRL in particular. This motivates the author to call her standpoint in favouring the essentialist approach, an intersectional feminist one. Dhaka University Law Journal, 2024, 35 (1), 177-192

Customs Penalties in the EU and Ukraine: Harmonizing the Unharmonized

This paper is an international law research on (1) the challenges of customs offenses harmonization in the EU, (2) an approximation of Ukraine’s (or other candidate country’s) legislation with the EU customs acquis. The research aims to (a) clarify the situation in the field of customs offenses, (b) analyse previous harmonization efforts, (c) find common denominators, and (d) synthesize the recommendations on how Ukraine shall act to harmonize with the EU customs acquis in the relevant field. At least two successful cases of harmonization are analysed, and conclusions are highlighted. A particular analysis is provided on the impossibility of abrupt alignment or using any EU country as a role model. The article offers an alternative – a gradual approximation by exchanging best practices. The research also emphasizes the importance of the procedural factors in the harmonization process. The article also defines additional possible sources of best practices such as (1) effectiveness, proportionality, and dissuasiveness through the prism of the Court of Justice of the European Union (CJEU) interpretations and (2) European Court of Human Rights (ECtHR) case law.

An Elusive Goal: Understanding the Effectiveness of the Inter-American Court of Human Rights

An Elusive Goal: Understanding the Effectiveness of the Inter-American Court of Human Rights

The Concept of a “Criminal Case” in the Jurisprudence of the Polish Constitutional Tribunal against the Background of the Case Law of the European Court of Human Rights

The Concept of a “Criminal Case” in the Jurisprudence of the Polish Constitutional Tribunal against the Background of the Case Law of the European Court of Human Rights

Looking at Abortion Jurisprudence of the European Court of Human Rights as an Equality Issue

This article explores how, when and to what extent could a finding of a violation of Article 14 ECHR provide substantive benefit to those who have been denied legal abortion in their home States and are seeking justice under the ECHR framework. This topic is extremely relevant as it allows for a critical evaluation of the Court’s approach to equality and abortion judgements from the perspective of substantive equality and feminist legal theory. Access to safe and legal abortion services is an equality question because the ability to control when one has children directly influences how equally one can participate in public life. The Court’s current use of formal equality, based on the idea that those in similar situations should be treated in the same way, makes the application of an equality approach to its abortion cases impossible. It is proposed that the Court should adopt substantive equality instead. This article follows Sandra Fredman’s multidimensional concept of substantive equality composed of the redistributive, recognition, participatory and transformative dimensions. The substantive equality approach recognises that individuals cannot be separated from their characteristics. The aim is to change the underlying structures that cause inequalities in the first place and to celebrate differences instead of fitting everyone into the same box. A finding of a violation of Article 14 ECHR by the Court would provide additional benefits for those seeking justice under the ECHR framework for being denied legal abortions in their home States and would have a substantial impact as it would lead to acknowledging the disadvantages of belonging to certain groups, elimination of harmful gender stereotypes and to possible changes in domestic laws of the Contracting Parties due to the Court’s influence.

Correction to: Specificity in the Inter-American Court of Human Rights

Correction to: Specificity in the Inter-American Court of Human Rights

Warsaw Mayor’s Position Regarding the Christian Cross

The article examines the position taken by the Mayor of Warsaw, Poland’s capital city, regarding the symbol of the Cross. First, the Ordinance of 8 May 2024 on the introduction of the Standards for Equal Treatment in the Warsaw City Hall is described. Second, the author cites relevant fragments of Sejm and Senate resolutions that informed the debate in defence of the Cross in the wake of the 2009 ruling of the European Court of Human Rights – resolutions that are still relevant given the current sociopolitical circumstances.

Public Wrongs and Human Rights: An Orderly Approach?

AbstractCriminal law is a system for societal ordering, as much as it is for protection against interpersonal harm and wrongs. Whilst such laws can engage rights to privacy and freedoms of expression and movement, international human rights rarely feature in criminal theory. Using Duff’s public wrongs theory, a normative argument is made for recognition of international human rights within the national civil order, as well as through a proposed supra-national human rights polity. This is tested through identification of human rights criminalization principles from public ordering cases in the European Court of Human Rights. International human rights offers a formal route to recognition of liberal principles, as well as adding possible new boundary conditions within criminal theory.

ECtHR judgment in Medvid v. Ukraine in the context of life imprisonment reform

The article analyzes the judgment of the European Court of Human Rights in the case of Medvid v. Ukraine. In this judgment, the ECtHR assessed the mechanism for reviewing life imprisonment introduced in Ukraine.The author examines the reform of life imprisonment in Ukraine, the mechanism for commutation of life imprisonment and parole of this sentence both introduced in 2022, as well as an assessment of the reform by scholars, human rights organizations, and international institutions.The author highlights the ECHR case law establishing the conditions for reviewing life sentences: transparency, predictability, and efficiency. The author analyzes the arguments of the applicant and the Government in the case of Medvid v. Ukraine regarding the compliance of Ukrainian legislation with these conditions and Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It is stated that the ECtHR has recognized the new mechanism for reviewing life imprisonment as providing a realistic possibility of release. The author highlights the key arguments of the Court in favour of this decision: clear time limits for reducing the sentence, objective assessment criteria, judicial review of decisions made by the prison administration, and the possibility of further rehabilitation. At the same time, the author notes the problem of a long period of uncertainty before the final implementation of the mechanism, which constitutes a violation of Article 3 of the ECHR.The author also notes the impact of this decision on further legal regulation and law enforcement practice in terms of life imprisonment review.