Court Of Human Rights Research Articles

Specificity in the Inter-American Court of Human Rights

Abstract Human rights bodies formulate highly specific orders to minimize the risk of State non-compliance. However, specificity comes at a cost, reducing State autonomy when local agents implement measures on the ground. This article develops the concept of specificity in human rights reparations and analyses the specificity formulas deployed by the Inter-American Court of Human Rights in structural measures as a form of positive subsidiarity. We employ qualitative data analysis software to process 322 measures of non-repetition ordered by the Inter-American Court through to the end of 2020. This analysis identifies two modes of specificity: process-based, which defines procedures for compliance, and outcome-based, which sets the goals for the State. After coding over 800 segments of text from Court decisions, we outline an exhaustive legal framework with 26 process-based categories and 2 outcome-based forms of specificity. We conclude that outcome-based specificity can help courts balance positive subsidiarity and State autonomy in the design of reparations.

The right to a fair trial in the light of the minimum guarantee of legal assistance in the practice of the European Court of Human Rights

The research attempts to form the essence of the modern understanding of the right to a fair trial through the prism of the minimum guarantee of legal assistance. Attention is drawn to the fact that the European Convention itself does not define the mechanism of its application, which in turn complicates its application by different states with certain differences in legal systems. In this regard, it is substantiated that by ruling on the application of the European Convention, the European Court of Human Rights (ECHR) sets the direction for building one of the most effective systems of human rights protection, which is subsequently manifested in the national systems of the Convention member states. In view of this, the article analyses the most important, key and modern practice of the ECHR in relation to consideration of applications for violation of the minimum guarantee of legal assistance in the context of violation of the right to a fair trial and summarises it, as well as identifies the risks of such an approach. In addition, the paper analyses the current conceptual vision of such transformations from the point of view of legal scholars, both academics and practitioners. In the course of analysis of modern ECHR judgments, the author found that in a significant number of them the Court indicates that the mere violation of the minimum guarantee of legal assistance does not automatically mean a violation of the right to a fair trial, and the author emphasizes the possible risks of such an interpretation, in particular, for the States which are leaders in violation of the guarantee of legal assistance, where the specifics of national systems reflect a systematic violation of this right. It is determined that the application of the minimum guarantee of legal assistance is not limited to criminal proceedings, and the court is not the only institution that must comply with this guarantee to ensure fairness of the proceedings. It is also emphasised that the practice of applying this guarantee cannot be limited to court proceedings only. The author also suggests improving the legal technique of implementing the European Convention into national legislation by amending its translation into Ukrainian.

A Jurisdictional Vertigo: Compulsory Arbitration, Sports and the European Court of Human Rights

Abstract This article discusses jurisdictional issues when cases related to arbitral awards of the Court of Arbitration for Sport end up before the European Court of Human Rights (ECtHR). By focusing on the ECtHR’s Third Chamber judgment in the Semenya case, it discusses how the unique governance structure of sports governing bodies, as the benchmark for such disputes, has distorted the traditional jurisdictional paradigms of the ECtHR, posing challenges for the Court in addressing potential human rights violations in the realm of sports. This article argues that human rights claims arising from sports activities form a new class of human rights litigation stemming from the activities of private actors with a strong public character. Such dynamics grant the ECtHR a central role as the ultimate arbiter in protecting human rights within the realm of sports and require it to subject the sports proceedings to a comprehensive review both on procedural and substantive grounds, even with relation to athletes residing outside the territory of Council of Europe member States.

Brussels in Strasbourg: Theoretical Reflections on the Impact of European Union Law on the Case-Law of the European Court of Human Rights

Brussels in Strasbourg: Theoretical Reflections on the Impact of European Union Law on the Case-Law of the European Court of Human Rights

Analysis of the admissibility of establishing the circumstances of intentional deprivation of life of the testator by the heir in a civil case through the lens of the presumption of innocence, the practice of the European Court of Human Rights...

The relevance of the subject under study was conditioned by the fact that in Ukrainian judicial practice, both judges and experts who are members of the Scientific Advisory Council of the Supreme Court have differed in their opinions regarding the possibility of disqualifying an heir from inheritance based on the requirements of Article 1224, Part 1 of the Civil Code of Ukraine. The purpose of this study was to clarify such general legal issues as the applicability and extension of the presumption of innocence in civil proceedings, and protection against violation of this principle in the resolution of certain civil law disputes. The methods of analysis, synthesis, comparison, generalisation, and case study were employed to examine the decisions of national courts of general jurisdiction of various instances, the Constitutional Court of Ukraine, and the European Court of Human Rights. It was stated that the deceased heir – the accused, who inflicted serious bodily injuries to his father – the testator, as a result of which the latter died, cannot be considered as having no right to inheritance, based on the analysis of the content of Article 1224, Part 1 of the Civil Code of Ukraine. The study proved that a form of condemnation by public authorities and posthumous conviction outside the scope of due process of law would be establishment by a court in a civil case of the circumstances of intentional deprivation of the testator’s life by an heir, where the former died at the time of the consideration of a civil dispute. It is unacceptable for a civil court to rely on the circumstances of the indictment and the grounds for closing criminal proceedings against a deceased defendant – an heir. Only a guilty verdict establishes a person’s guilt. If it is referred to in other procedural decisions, it is probable that the person will be socially stigmatised. A civil court may not assume the powers of a court that are exercised only in criminal proceedings when resolving a dispute over inheritance. The practical value of the study lies in the development of arguments for the court and participants in the trial

‘Heads and Tails’: Admissibility and Remedies at the European Court of Human Rights

‘Heads and Tails’: Admissibility and Remedies at the European Court of Human Rights

The Court’s Correcting Mechanism: ‘General Measures’ as a Judicial Remedy to Address Legislative Inaction?

Abstract Citizens confronted with a domestic legislator remaining inactive in contravention of its human rights obligations may turn to the European Court of Human Rights (ECtHR or Court). Having already passed legal challenges at the ‘heads’ end of the European system of human rights, the question arises whether they can find redress at the ‘tail’. When the ECtHR establishes a violation due to a lack of regulatory framework, it may decide to indicate general measures in Article 46 and pilot judgments. Based on an analysis of case law, this paper elaborates on how the Court goes about its remedial practice in legislative inactivity cases. The observations relate to addressing the domestic legislator directly, and the frequency, legal status, content, and deadline of the measures. They can, at least in part, be explained by the Court’s adherence to the principle of subsidiarity. Still, many uncertainties concerning the Court’s practice remain.

Too Big to Remedy? What Climate Cases Tell Us About the Remedial Role of Human Rights

Abstract As the European Court of Human Rights (Court) considered the human rights impacts of climate change for the first time, its initial climate cases issued an invitation to think beyond climate change, and to interrogate key aspects of how the Court deals with systemic or societal problems. While its ruling in KlimaSeniorinnen v Switzerland presented much-discussed innovations in terms of the Court’s treatment of the admissibility and merits of climate cases, and especially in terms of the victim status test, the ‘tail’ end of the Court’s violation judgment has not received sufficient attention. Here the Court had a particular opportunity to respond to the structural nature of climate change. Its deferential remedial findings relate to the Court’s understanding of reparation and its own role, which in turn shape its willingness to open its remedial toolbox. The present piece interrogates the remedial options available in climate cases, focusing particularly on the KlimaSeniorinnen case to re-examine the idea that some issues are simply too extensive or too complex to receive scrutiny – or a remedy – from a human rights institution such as the Court.

Media Attention and Compliance With the European Court of Human Rights

Media Attention and Compliance With the European Court of Human Rights

Religious dress in the healthcare setting: Unpacking legal arguments and balancing individual rights

This article explores the complex debate surrounding healthcare providers seeking to express their religious beliefs through the wearing of religious attire considering critical legal, ethical, and practical aspects. Drawing insights from the jurisprudence of the European Court of Human Rights and European Court of Justice, it sheds light on the implications for healthcare settings. The study highlights the sensitivity of the healthcare context, where specific arguments surface, such as the debated significance of religious neutrality given the vulnerability of patients and concerns about health and safety. Difficulties may arise when patients feel discomfort when treated by visibly religious healthcare providers. However, patients’ preferences regarding the religious neutrality of healthcare providers cannot be generalised, especially when considering the needs of certain minoritised communities. Furthermore, questions can be raised about the admissibility of potentially accommodating prejudice through prohibitions on religious dress. The article further examines hygiene and safety arguments used by healthcare institutions to restrict religious attire, arguing that while health and safety standards are crucial, scientific support for outright bans is limited, especially considering the possibility of reasonable adjustments. The central theme is the necessity for balanced considerations while upholding religious freedom and prioritising patient care, with particular emphasis going on the idea that the needs of patients cannot be generalised.

Ties that Sever: Losing the Right to Belong in Denmark

AbstractIn 2018, the Danish Supreme Court revoked Adam Johansen’s citizenship in conjunction with his conviction for terrorism. Applying a proportionality test adapted from European Court of Human Rights (ECtHR) jurisprudence for naturalised, not natural, citizens, the Danish court determined that Johansen’s Muslim faith tied him to Tunisia, his father’s country, rather than to Denmark. In March 2022, the ECtHR unanimously upheld this judgment. In so doing, the ECtHR solidified an emerging standard in cases of citizenship revocation for natural citizens, which standard is weaker than the protections enjoyed by naturalised citizens. This article reviews the Danish and ECtHR jurisprudence to show how the explosive expansion of citizenship revocation in relation to terror crimes, combined with the ECtHR’s emerging jurisprudence rejecting substantive review for such revocation, demonstrates a significant, multidirectional weakening of rights protections in Europe.

Nationalism in the Judicialization and Culturalization of Religion: The Case of Religious Education in Greece

Religious education (RE) is frequently a topic of intense political debate and a focal point of party politics in the Greek context. This article presents the latest chapter in political contestation over the teaching of religion in Greek public schools, one which entails a new dimension—that of intense judicialization. Since 2015, the issue of religious education in Greek public schools has been the subject of multiple court cases addressed by the Greek high court, the Council of State, with one case addressed by and one case pending before the European Court of Human Rights. Beyond teasing out links between Greek Orthodoxy and nationalism underpinning each of these cases, this article also seeks to locate this example of judicialization of politics and religion in a broader theoretical context. It engages with another phenomenon at play in the Greek case as in many other cases globally, the culturalization of religion. Through the example of the Greek legal battles over religious education, we see how the judicialization of a particular political question on religion (policy on RE) rests on a culturalization of religion, which, in the legal domain, entails a rebranding of ‘religion’ as ‘culture’ so as to protect ‘religion’ from limitations placed on it by expectations of liberal state neutrality. The inherent difficulties in defining religion and culture, both individually and in relation to one another, are fundamental to both the theoretical and the practical, socio-legal challenges arising from such developments.

The implementation specifics of the right to be forgotten in the context of the decisions of the Court of Justice of the European Union and the European Court of Human Rights

The article is dedicated to the legal analysis of the case law of the CJEU and the ECtHR regarding the implementation of the right to be forgotten and the right to privacy. It is established that the development of digital technologies has enabled rapid information exchange and its almost indefinite storage in the digital environment. However, such widespread availability of data about individuals and the inability to update or supplement this information have posed new challenges to society in ensuring the protection of personal data and privacy. The right to be forgotten is one of the tools through which a person can delete truthful but outdated information about themselves on the Internet, provided that such information is not of public interest. It is proven that although the right to be forgotten has been implemented within the EU for over a decade, lawyers and human rights activists consider it the second most complex obligation of the General Data Protection Regulation to implement. It is argued that both the CJEU and the ECtHR often inadequately describe the factual circumstances of cases and disregard the confidentiality of the parties involved. Individuals who apply to the court for the deletion or anonymization of personal data on the Internet often receive the opposite effect due to the public and scientific community’s interest in such cases. It is argued that in order to maintain a reasonable balance between privacy and freedom of expression, court decisions should contain all factual circumstances of the case, but the personal data of the parties involved and other circumstances that may indicate the applicant should be anonymized. This will help avoid censorship, ensure the right to memory, and enable an understanding of the factual basis on which courts have developed their legal arguments. It is argued that since the materials of cases before the ECtHR and the CJEU are often transmitted to national courts of member states for quality protection of confidentiality, it is necessary for them to correctly anonymize the personal data of the parties involved in the case and information that could identify the applicant.

Overview of some aspects of protection of the right to information

The right to information in the broadest sense is a component of the constitutional and legal status of a person in the country, and the existence of an effective mechanism for realizing this right, including its protection, demonstrates the state of reality of the proclaimed principles of the rule of law. The article is an attempt to provide a broad overview of the possibilities of protecting the rights of individuals and legal entities to information in Ukraine. The authors tried not to limit themselves to analyzing the mechanisms of a specific branch of law, but made an attempt to outline possible violations of the right to information and analyze the legal means of stopping such violations and preventing negative manifestations in the future. The article analyzes both jurisdictional and non-jurisdictional ways of protecting the right to information, which have their own specific features of manifestation and application within different branches of law. The author considers the ways of protecting the right to information through the mechanisms of civil, administrative and economic branches of law, and makes a certain systematization of the types of violations of the right to information depending on the subject of violation (private or public), on the consequences, on the nature and manifestation of violations. The authors analyzes the positions of national courts and the European Court of Human Rights regarding the existence of legislative restrictions on judges in choosing the ways to protect the applicants’ right to information. The authors also compare the approaches of the European and Ukrainian legislators to the interpretation of the concept of “non-jurisdictional remedies” on the example of legal acts regulating the procedure for exercising information rights, and provide examples of relevant preventive measures (technical and organizational). The authors analyzes the capabilities of the Ukrainian Parliament Commissioner for Human Rights in the mechanism of protection of the right to information and provides examples of the use of his/her powers in response to appeals on violation of the right to information. Gaps in information legislation are identified and ways to eliminate them are suggested.

How Should the European Court of Human Rights Remedy Violations of Article 18 echr? The Case for Remedial Realignment

Abstract This article assesses whether the European Court of Human Right’s (Court) remedial reasoning in Article 18 European Convention on Human Rights (Convention) judgments coheres with the Court’s merits-based reasoning finding a violation of this particular provision. Article 18 violations have come to highlight structural problems in state parties, most notably complicity from domestic judiciaries and/or state prosecutors in state efforts to restrict Convention rights for anti-democratic ulterior purposes. The article finds that this substantive feature of Article 18 violations does not generally extend to the Court’s approach to formulating remedies and that the Article 18 violation judgments evidence the same remedial oversight generally present in the Court’s broader case law. The article argues, however, that the Court’s remedial approach in Article 18 violation judgments should be highly prescriptive and specific in respect of both individual and general measures on account of the reality that Article 18 serves both individual and constitutional justice and engages the positive dimension of subsidiarity.

With Swiss Seniors the Climate-Litigation Movement Chalks up Another Hollow Victory

Abstract With the European Court of Human Rights’ April 2024 decision, the climate-litigation movement might feel confident that it has demonstrated that a state’s mitigation policy is subject to human rights law. In fact, all that it has managed to do is to convince the Strasbourg court to overextend itself and discredit itself by concocting a position that defies not only law but logic. The human rights framing is too narrow for the problem of climate change. It focuses on the comfort of one particular species, ignoring the rest. Worse, it is irrelevant to the problem, as the reality of it is that each and every member of this species is causing climate change, not their governments, so the issue cannot be presented as one of protecting individuals from the power of government – and therefore not one that engages human rights law.

Breaking Judgment in European Court of Human Rights on Climate Litigation－A Brief Comment on the Case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland of April 9, 2024

Breaking Judgment in European Court of Human Rights on Climate Litigation－A Brief Comment on the Case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland of April 9, 2024

Проблемы привлечения адвокатом-защитником специалиста в уголовном судопроизводстве

The article studies the problems of attracting a specialist defense lawyer in criminal proceedings. The author examines the main reasons for the opposition of government entities to the right of the defense to present a specialist’s report, which contains a revision of the expert’s report. The legal positions of the European Court of Human Rights, as well as the Constitutional Court of the Russian Federation on issues of expert evidence are noted. In addition, the researcher turns to practical examples of both negative rejection of a specialist’s conclusion as unacceptable criminal procedural evidence, and the positive practice of perceiving a specialist’s conclusion as a basis for ordering a repeat forensic examination and even termination of a criminal case. Ultimately, the author concluded that it is necessary to reform the domestic criminal process in order to increase the efficiency of attracting a specialist defense lawyer as a means of countering criminal prosecution.

The concept of discrimination, its forms and manifestations in accordance with the practice of the European Court of Human Rights

The paper examines the application of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits discrimination. The author highlights the absence of a clear definition of "discrimination" in the text of the Convention, which complicates its interpretation. Examples from case law, such as the "Belgian Linguistic case" and "Sidabras and Džiautas v. Lithuania", illustrate different approaches to interpretation of the concept of discrimination. The following forms of discrimination are discussed: direct, indirect, discrimination by association, and positive actions. The necessity of considering the specific circumstances of individual cases for objective and reasonable court decision to be made is emphasized. The paper describes how the European Court of Human Rights protects the rights of individuals affected by discriminatory measures or actions, particularly in the context of education, employment, religion, etc. For instance, in the "Belgian Linguistic case," the Court preferred the English version of the Convention's wording, warning against a literal interpretation of the French version that could lead to excessive prohibition of any differentiation. Additionally, the "D.H. and Others v. the Czech Republic" case illustrates the Court's approach to indirect discrimination and the importance of assessing the impact of state measures on specific groups. Positive measures, such as those highlighted in "Horváth and Kiss v. Hungary," demonstrate the Court's stance on the state's obligation to address systemic issues and provide effective protection against discrimination. The analysis underscores the broad scope of Article 14 and the role of the European Court of Human Rights in ensuring non-discrimination across various spheres.

Verein KlimaSeniorinnen Schweiz and Others v. Switzerland: the European Court of Human Rights’ Answer to Climate Change

Abstract In Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the European Court of Human Rights issued its first climate-change-related decision. In a near-unanimous decision, the Grand Chamber of the Court found that Switzerland had breached its obligations under the European Convention on Human Rights. It held that the Alpine state must review and amend its climate change policies accordingly. In this case note, we highlight the key points of the judgment and comment briefly on certain points.