ECHR Case Law Research Articles

The effectiveness of domestic violence investigation: standards of the Istanbul Convention and the ECHR case law

The effectiveness of domestic violence investigation: standards of the Istanbul Convention and the ECHR case law

Applicability of the ECHR case law within the judicial higher Court remedy examination

In this paper, we have realized a complex study of the practical aspects regarding the impact of ECtHR jurisprudence on the judicial higher court remedy examination. The paper contains analysis of the theoretical and practical aspects, aimed to resolve procedural issues by referring to the practice of the European Court of Human Rights, addressing in the criminal process the importance of ECtHR precedent and determining the need for its application. The article highlights importance of applying the precedent of the European Court as a source of law in the criminal process, analyzing the premises and consequences of the applicability of ECtHR jurisprudence within judicial higher court remedy examination.

The freedom of Personal Self-Determination as the Prime Principle for "The Religion or Belief Manifestation Test" in ECHR Case-Law

This article focuses on the case law under Article 9 of the ECHR in the field of classifying an act as a manifestation of a particular religion or belief. It aims to criticize the long-time rigid practice of the European Commission and the European Court, which grants them the Power of Assessment in this regard. Namely, in the light of the general principles of the freedom of religion and belief, the author explains why it is natural and necessary for the Court to give up its Power of Assessment and leave the issue entirely in the scope of personal self-determination. In arguing own view, the author relies upon the Court's approach developed in the Case - Osmanoğlu and Kocabaş v. Switzerland (ECHR. 2017).

Freedom of expression after disinformation: Towards a new paradigm for the right to receive information

ABSTRACT As part of the EU strategy to combat disinformation, the Media Freedom Act has introduced a right to have access to a plurality of editorially independent media content, marking progress beyond the current EU legal framework and ECHR case-law. This shift can be attributed to a heightened societal awareness of the impact of harmful expressions, an increasing focus on duties and responsibilities in human rights, and the disjunction of production and distribution in the digital media industry. This right appears to possess a distinctive horizontal and positive dimension, and ultimately consists of a right not to receive media content of such quality that hinders the democratic discourse.

On the Principle of Voluntary Consent to Organ Donation in the Legal Acts of the Russian Federation and International Law

The development of transplantation in the Russian Federation raised in addition to ethical some legal issues, like the conflict of the Law of the Russian Federation “On transplantation of human organs and tissues” and the Federal Law “On burial and funeral business”. Goals and tasks of the research. The main goal of the study is to determine the content of the principle of presumed consent and its legal boundaries. This goal led to the setting of the following tasks: firstly, on the basis of international and national law, to establish the donation procedure, and, secondly, to analyze the practice of the Constitutional Court of the Russian Federation and the European Court of Human Rights on the legality of the principle of presumed consent. Methods. For the study, both general scientific methods like analysis, synthesis, deduction and induction were used, as well as private scientific methods, the main role played the comparative legal method. Guided by it, the author compared the approaches to the legal regulation of donation in various legislative acts of the Russian Federation and international law. Comparative analysis was used to study the practice of the Constitutional Court of the Russian Federation and the ECHR case law. Brief conclusion. The author reveals two models of legal regulation of donation – presumed and requested consent. After studying the Law of the Russian Federation “On transplantation of human organs and tissues” and the Federal Law “On the basics of health protection of citizens in the Russian Federation”, the author suggests ways of improving the national legislation on posthumous donation.

Recognition of a status acquired abroad

This report addresses questions of civil status recognition in Sweden, the main legal developments and case-law related to the recognition of a civil status. The ECHR and CJEU case law influenced the case-law some extent, especially in relation to cross-border recognition of names and surrogacy arrangements. Meanwhile, autonomous private international law on recognition of marriages prefers substantive Swedish law and protects the Swedish approach to children’s rights and gender equality.

Features and trends in the application of the ECHR case law in the legal system of Russia

Features and trends in the application of the ECHR case law in the legal system of Russia

The impact of ECtHR case-law on the CJEU's interpreting of the EU's return acquis: More than it first seems?

Abstract After canvassing the CJEU's return-related case-law and identifying the references to the ECHR and the Strasbourg case-law within it, based on empirical research of CJEU rulings, this article explores the possible reasons and motivations for the EU Court's more guarded approach towards ECHR and ECtHR case-law in interpreting and developing the EU's return acquis (as opposed to the EU asylum legislation). Potential explanations are manifold. Nonetheless, one might still argue that, substance-wise, quite a number of human rights protected under the ECHR and ECtHR case-law have been presented in the CJEU rulings as EU law standards. Hence, it is also arguable that ECtHR jurisprudence does play a role behind the scenes in the CJEU's deliberations but does not surface in the judgments themselves.

Trans Justice Fights Trans Moral Panic

Between the summer of 2019 and the summer of 2021, a violent discussion about trans rights took place in Spain. This paper argues that the discussion can be understood as an instance of ‘social problems work’, more specifically as part of a moral crusade or a moral panic episode. Implicit in this is the idea that there has been an over-reaction to trans recognition and trans equality laws, publicly presented as a major social problem. This paper also provides legal arguments against the fears voiced in the discussion, by summarizing relevant ECHR case-law that agrees with an alternative feminist account of trans rights that de-pathologizes gender-identity self-determination. The paper thus suggests that a ‘cultural war’ over gender identity has been ignited and has yet to be fully fought and won.

Recognition of a status acquired abroad

This report describes legal framework and practical aspects of civil status recognition in Poland. The provisions of the Act on Private International Law and the Law on Civil Status Registry, as well as the Polish judical and administrative practice are presented. There are ceraitn values that are protected by the Polish Constitution and therefore changes in recognition of the status acquired abroad in some matters seems more difficult to be implemented in the nearest future. The ECHR and CJEU case law are important for the discussion of the issue related to recognition of a status acquired abroad in Poland.

Recognition of a status acquired abroad

This report addresses questions of civil status recognition in Baltic states: Estonia, Latvia and Lithuania. All three states restored their independence in the early 90-ties, and since then, they have been developing their legal systems, including – private international law. With time, the relevance of private international law increases, mainly due to the increased migration. However, the doctrine of Baltic private international remains limited. This report presents main legal developments and growing case-law related to recognition of civil status. The ECHR and CJEU case law influenced to some extent, the Lithuanian courts’ case law regarding names and same-sex couples. Latvian courts continue to refuse recognition of non-Latvian spelling of names, and Estonian authorities are the most flexible in this regard. Both Lithuania and Latvia used the protection of the national language as the justification to deny granting the recognition of names acquired abroad. It occurs that all the states do not focus on developing methodologies for recognizing the civil status acquired abroad.

New technologies and respect for the worker’s privacy in ECHR case law

The article analyses the changes in labour law brought about by globalisation and digital transition, investigating, in particular, the consequences on some basic values including, in particular, the protection of the right to privacy and the respect of private life in the employment relationship. Particular attention is devoted to the critical interpretation of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, through a critical analysis of the jurisprudence of the European Court of Human Rights in the light of the most relevant cases dealt with, with a specific focus on the identification of the parameters of legitimacy of video surveillance and remote control activities, also in the perspective of European regulation of the use of artificial intelligence systems.

The standard of proof “beyond a reasonable doubt” in criminal proceedings of Ukraine in the context of the ECHR case-law

The purpose of the paper is to determine a content of the standard of proof “beyond a reasonable doubt” (SP “BRD”) in the ECHRcase law and Ukrainian criminal proceedings by defining the criteria that characterize it. The subject is the SP “BRD”, doctrine of Ukraine and case-law, including its criticism by the individual judges of the ECHR and Ukrainian scholars. The research methodology includes the methods of analysis, the method of synthesis, the methods of deduction and induction, comparative-legal method, systematic and formal-legal methods. The results of the study. The acceptability of the SP “BRD” in the Ukrainian criminal proceedings is substantiated, in particular, its compliance with the purpose of criminal procedural proof. Practical implication. The criteria which characterize the SP “BRD” in the ECHR’s and SC’s case law are highlighted.

Application of ECHR case-law by international regional courts of human rights

Application of ECHR case-law by international regional courts of human rights

REMOTE MONITORING AND VIDEO SURVEILLANCE IN THE WORKPLACE BETWEEN ITALIAN LAW AND THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

The article considers the mechanisms of “defensive” remote control in labor relations. It analyzes different methods of collecting personal data and the purpose of their use in labor relations, as well as the impact of digitalization on labor relations and the variety of control tools. The author investigates the boundaries of remote control in the ECHR case law, including the decisions of Italian courts in the field of video surveillance and suppression of illegal behavior of employees. The author concludes that a new and more specific legislative regulation of the employer’s remote control is needed.

An evolving conception of discrimination in Europe

CESAA 19th ANNUAL EUROPE ESSAY COMPETITION 2011 - Postgraduate winner: Simone Abel (University of New South Wales)In 2007, the European Court of Human Rights’ Grand Chamber handed down its judgment in DH and Others v Czech Republic. The case arose out of the disproportionately high number of Roma children assigned places in segregated schools for children with intellectual disabilities in the Czech Republic. It was alleged that this practice discriminated against Roma children who had normal, or even above normal, intelligence levels. The applicants claimed that they had been discriminated against in the enjoyment of their right to education on account of their race or ethnic origin TheCourt made a finding of indirect discrimination against the Czech government. Commentators have hailed this as a landmark judgment that expands the conception of discrimination under the European Convention on Human Rights. This paper will discuss how this finding differs from the First Chamber’s judgment and other ECHR caselaw to alter the conception of discrimination under the European Convention on Human Rights.

Home Quarantine or Home Isolation During the Covid-19 Pandemic as a Deprivation of Liberty under Polish Law

Combating the COVID-19 pandemic requires that States should take many measures, which may also substantially interfere with the rights or freedoms of individuals. One commonly used mechanism to counter the spread of the SARS-CoV-2 virus is home quarantine or home isolation. Bearing in mind the guidelines arising from ECHR case-law, the article assesses whether home quarantine or home isolation applied under Polish law constitutes a deprivation of liberty. Taking into consideration the manner and conditions of these isolation measures and the possibility of using coercive measures, home quarantine or home isolation under Polish law constitutes deprivation of liberty within the meaning of Article 5(1)(e) of the ECHR. Then attention is drawn to selected consequences arising from this classification. In particular, it is emphasized that they cannot be imposed by a decision of the legislator, but only as a result of an act of law enforcement by sanitary authorities or courts.

Criminal Liability for the Infringement of IP Rights: Ukraine and the European Court of Human Rights Case Law

Ukraine’s national legislation and the European Court of Human Rights’s case-law outline Сopyright protection. Many cases exist where the public significance and damage from copyright infringement entails holding the guilty person criminally responsible for the transgression. Given copyright infringement cases do not reflect a predominant concern over other crimes, a structured criminal prosecution mechanism does not exist. Thus, the European Court of Human Rights’ legal positions and instructions intend to eliminate gaps legally regulating criminal liability for copyright infringement. Hence, the legal regulation, its gaps and ECHR case law impacts on Ukrainian practice were analysed. This structure enabled proposing steps for improving legally regulating criminal liability for copyright infringement in Ukraine.

Finding a balance between equal treatment, transparency, and legal certainty when allocating scarce authorisations

The Dutch Council of State recently ruled that potential applicants should have the right to compete in a transparent procedure when scarce authorisations are allocated. This right to compete is based on the Dutch principle of equality, and is inspired by the European principles of equal treatment and transparency. Until this ruling, most scarce authorisations in the Netherlands were granted for an indefinite period of time, with no transparent allocation procedure. The question which follows is: should these scarce authorisations be withdrawn, or would this be contrary to the principle of legal certainty? By looking at the definition of a scarce authorisation and the development of the principles under EU, ECHR and Dutch case law, I conclude that competent authorities are allowed to withdraw the old scarce authorisations ex officio after a transitional period or payment of compensation. However, in my opinion, competent authorities are not obliged to withdraw old scarce authorisations, since old scarce authorisations cannot be amended substantially and therefore will become available in due time. In this way, old scarce authorisations remain intact for a longer period of time and, therefore, the infringement of the right of property is reduced. In other words, in the end, competent authorities should be allowed to decide what the best option is: either (1) withdrawing the authorisations ex officio after a transitional period or payment of compensation or (2) awaiting a request to amend the authorisation – with due regard to the circumstances of the case.

THE CONSTITUTIONAL COURT IN THE MECHANISM OF DOMESTIC REMEDIES IN STATES WITH DIRECT ACCESS TO CONSTITUTIONAL JUSTICE: OPERATIONAL AND ECONOMIC ASPECTS

This article studies the legal status and the performance of the Constitutional Court (hereinafter referred to as the CC). The experience of States with direct access to a body of constitutional jurisdiction enables to distinguish the CC's position in the system of State jurisdictions (with particular economic justification of its activity) and to substantiate its role in the mechanism of domestic remedies. The aim of the article is to reveal the CC's place in the mechanism of domestic remedies of States with centralized constitutional review and direct access to constitutional justice on the part of effective protection of the applicants’ rights and the state budget in the formation of judicial remedies. Methodology. The leading methods of the article are correlation, comparativelegal, dialectical and technical logic methods of research, etc. They enable to compare and contrast international standards in the field of legislation of different European States, to reveal the nature of constitutional and legal conflicts and specifics of the constitutional procedure for the CC’s cases. These problems are also investigated using the method of synthesis of financial justification of the activities of the bodies of constitutional jurisdiction and the effectiveness of the results of their activities in the protection of rights and freedoms of an individual and a citizen. This enables to formulate further development and suggestions for improving the legal regulation of the CC’s activities in the States that have recently begun to implement this instrument of protecting constitutional human rights and freedoms. The key results of the study. It is proven that the CC is a specific body that is the last at the national level to exercise exceptional special powers aimed at protecting human rights and fundamental freedoms. The role of the CC in the system of domestic remedies is revealed. The CC is an autonomous body of constitutional jurisdiction with a constitutional status, independent of the executive and legislative branches. It is substantiated that the CC is factually affiliated to the judicial authorities engaged in jurisdiction. It is proven that the CC's activities are characterized by judicial independence, combined with the powers of the CC judges to decide legal matters within its constitutional jurisdiction. Cases are judicial in nature, and the CC considers them on the rule of law. The decisions adopted shall be mandatory (binding) and shall not be altered by other branches of government. The main functions of the body of constitutional jurisdiction are distinguished into quasi-judicial, cognitive and evaluative, harmonizing. The consistent universal approach of the European Court of Human Rights (hereinafter referred to as ECHR) states that the notion of "court" does not necessarily mean classical jurisdiction, integrated into the judicial system of the state. Finally, the article proves the requirement of recognizing the CC as a “court established by law” essentially and functionally. Consistent approaches and criteria for defining the notion of "court established by law" formulated by the UN Committee on Human Rights and the ECHR's case-law prove that the CC can be identified as the last mandatory domestic remedy before applying to international judicial institutions, subject to the criterion of an effective remedy, formulated by the ECHR's caselaw during proceedings in the CC.