European Court Of Human Rights Research Articles

Intersexuality and Transgender Identity as a "Problem" of Participation in Sports Competitions

Amidst a global landscape where transgender individuals face unprecedented challenges in accessing equitable sexual health care, our review breaks new ground by exploring the intricacies of sexual health within the transgender community. Unveiling the critical gaps in current health care practices, our research not only amplifies the voices of those often marginalised in health narratives but also pioneers a comprehensive, culturally sensitive approach to transgender sexual health. The literature review tries to find medical and subsequent legal justifications for PRO and CONS of participation of transgender and intersex athletes in the category of the opposite sex. It tries to analyse which differences in life can be relevant in defining competitive advantages, which nowadays lead to very controversial, often politically motivated conclusions. The opinions of the professional and sports public do not go along with some decisions of sports associations and authorities. It therefore also deals with the recent decision of the European Court of Human Rights in the case of Caster Semenya, as well as the participation of athletes across different sports disciplines and categories. It does not ignore the question of the adequacy of anti-discrimination measures. Furthermore, it evaluates the impact of such participation on the integrity and fairness of competitive sports, highlighting the need for a balanced approach that respects the rights of all athletes. This study stands at the forefront of transforming sexual health care for transgender individuals worldwide.

ECtHR: Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (Application No. 53600/20, 9 April 2024)

The present paper focuses on the analysis of the landmark decision of the European Court of Human Rights in which the Court has, for the first time, ruled on human rights violation due to climate change. It begins with the description of the convention as a so-called living instrument that aims at the interpretation of the European Convention on Human Rights taking into account the current social circumstances and challenges, such as the growing need for environmental protection and addressing climate change. In the judgment in question, the Court held that Switzerland had violated the applicant's rights due to insufficient legislative measures to protect individuals from the adverse effects of climate change. As a result of the long-awaited but unconventional conclusion, the judgment has become the target of much criticism. The paper thus concentrates on the main seemingly innovative or rather surprising pillars of the judgment, such as the court's determination of locus standi, the scope of a state's positive obligations in the context of climate change and its related margin of appreciation, as well as the unprecedented consideration of scientific evidence. The paper concludes by summarising the possible implications of the court's arguments for similar future cases, which will undoubtedly increase in number.

Personal Autonomy and Human Corporeality: What Protects the Right to Personal Integrity?

This paper discusses the controversial and evolving nature of the right to personal integrity in the context of modern legal discourse, with a specific focus on its intersection with bodily boundaries and bio- and digital technologies. It points out that the traditional understanding of this right may no longer be sufficient to protect individuals, especially given the advancements in digital technologies, the Internet of bodies (IoB), as well as the challenges posed by the COVID-19 pandemic.This research highlights the ongoing debate and legal complexities surrounding the right to personal integrity and personal autonomy, especially in the face of technological advancements, and suggests the need for a broader perspective to safeguard human dignity and physicality, both in the physical and digital domains. For these purposes, the evolving legal landscape is explored, with reference to the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR).We believe that the classic concept of the right to personal integrity no longer ensures the security of the individual, and in order to achieve this goal, it is necessary to expand its scope taking into account the human dignity, especially in the context of the continuous progress of bio- and digital technologies.

Fragmentation in the European and Inter-American Human Rights Courts Regarding the Scope of Religious Autonomy: An Analysis of the Use of Sources and Methodologies

ABSTRACT Fragmentation in International Human Rights Law (IHRL) may affect the universality of human rights norms and their legitimacy. This article analyses a recent case of contradiction between the European and the Inter-American Court of Human Rights (IACHR) regarding employment contracts of religious education teachers and the scope of religious autonomy. These courts reached contradictory conclusions on key substantive issues because they used different ways of framing the issue at stake, and different legal sources and interpretative methodologies. The analysis reveals that while the European Court of Human Rights (ECHR) relied on the use of comparative law, a test of proportionality, and the margin of appreciation, the IACHR relied mainly on American domestic law and the opinions of two expert witnesses. In this case, the IACHR could learn from the approach of the ECHR to develop a more rigorous legal methodology in order to keep the coherence of the international legal system.

The Contribution of the European Court of Human Rights to the Construction of a Corruption-Free Society

Abstract Corruption is a serious threat to the stability and security of societies, undermining institutions and democratic values, ethical principles, and justice, as well as sustainable development and the rule of law. It manifests itself in many ways and in a multitude of contexts, affecting almost all human rights, including economic and social rights (i.e., the right to work, the right to food, the right to housing, the right to health, the right to education, the right to public services, the right to development), as well as civil and political rights (i.e., the right to equality and non-discrimination, the right to political participation, the right to an effective remedy and to a fair trial). In this perspective, starting from an examination of the direct and negative impact of corruption on the enjoyment of human rights (Section 1), the analysis that follows focuses on the obligations of States to respect, promote, and above all, protect human rights (i.e., take all necessary measures to ensure their full enjoyment) (Section 2), traces the ECtHR’s most incisive pronouncements on violations of individual guarantees in the context of corruption (Section 3), and highlights the crucial role of the Court’s case law in defining more effective, preventive, and punitive measures against corruption (Section 4).

A Fair Trial Perspective on Albanian Law No. 19/2016 “On Additional Measures for Public Security”: Aligning with European Human Rights Standards

This study critically assesses Albania's Law No. 19/2016 "On Additional Measures for Public Security" against the European Convention on Human Rights (ECHR), focusing on privacy and the right to a fair trial. Through comparative legal analysis, it juxtaposes Law No. 19/2016 with ECHR provisions and the European Court of Human Rights (ECtHR) jurisprudence, examining the law’s alignment with human rights norms, especially regarding surveillance. The analysis uncovers substantial discrepancies, particularly in the law’s approach to public surveillance and the protection of individual rights, indicating a need for significant legal reform in Albania. The paper proposes amendments to better align national legislation with ECHR standards, advocating for clearer surveillance regulations, enhanced privacy protections, and adherence to fair legal processes. It champions a balanced public security strategy that respects human dignity and freedom, aligning with European human rights principles. Received: 15 January 2024 / Accepted: 22 May 2024 / Published: 02 July 2024

Demokratia: Will the Greek Ideal Work in Greece’s Favour to Return the Parthenon Marbles under International Law?

Abstract This article reviews the recent publications concerning the centuries-old dispute over the Parthenon Marbles. The discussion focuses on the application of international law to the question of the return of the Parthenon Marbles to Greece, and reviews Professor Catharine Titi’s book The Parthenon Marbles and International Law, with reference to and comparison with Alexander Herman’s book The Parthenon Marbles Dispute. This review specifically evaluates the question of whether there is a customary international law on the return of unlawfully removed cultural heritage, which would require States, and specifically the United Kingdom, to be bound to such a rule. The existence of this rule would strengthen the efforts of Greece to argue for the return of the Marbles, which Titi argues is best resolved through diplomacy, and not recourse to the European Court of Human Rights or the International Court of Justice. Despite a growing global discussion about the need for repatriation of colonial-looted cultural objects, it remains to be seen whether it will have any impact, or indeed put pressure on, the Trustees of the British Museum or the UK Parliament which must pass an act to deaccession the Marbles from the national collection.

The principle of proportionality in the practice of the European Court of Human Rights

The principle of proportionality in the practice of the European Court of Human Rights

THE USE OF SCHOLARSHIP BY THE EUROPEAN COURT OF HUMAN RIGHTS

AbstractThe relationship between scholarship and adjudication has attracted considerable attention in recent years, especially in those areas where significant academic expertise has been developed and academic scrutiny of decisions is common. Yet the role of scholars and scholarship in the context of the adjudicatory practices of the European Court of Human Rights (ECtHR) has remained palpably under-investigated. This article begins to fill this gap in the literature by carrying out the first large-scale empirical study of the use of scholarship by the ECtHR. The authors rely on a purpose-built dataset comprising all the citations made by the Grand Chamber of the Court in judgments and separate opinions appended to it. The study finds that the Court's majority uses scholarship for the purposes of reviewing facts and interpreting international and domestic law but does so rarely. The majority of the ECtHR does not use scholarship to interpret the European Convention on Human Rights or for persuasive purposes, unlike the individual Judges in their separate opinions. Indeed, individual Judges refer to scholarship more often, for more varied and arguably different purposes. This use, however, is inconsistent in terms of both frequency and the types of sources referred to.

Privacy in the Digital Age: Implications of the European Court of Human Rights’ Interpretation of Privacy as Personality Right for the UN Human Rights Committee

Privacy in the Digital Age: Implications of the European Court of Human Rights’ Interpretation of Privacy as Personality Right for the UN Human Rights Committee

Medical assistance in dying for palliative patients in different countries of the world: lessons on euthanasia legalization

Background. The practice of countries in legalizing euthanasia is useful for other countries that have not yet allowed Medical Assistance in Dying (MAiD). Palliative patients in these countries have varying levels of access to medical care, including adequate analgesia. Medical care in many countries does not meet the needs of palliative patients, and systems of palliative and hospice care are often poorly developed. MAiD can be an alternative to the suffering of palliative patients at the end of life. Aim. Analysis of legal, social and financial aspects of euthanasia legalization in different countries of the world. Materials and Methods. The method of system analysis, comparative method and bibliosemantic method were used for the research. Results and Conclusions. The path to the legalization of euthanasia begins with a wide public debate. Important is the opinion of medical professionals, who are usually divided into two camps: those who deny the necessity and humanity of euthanasia, as well as those who advocate legalization to end the suffering of their patients, seeking to satisfy their persistent and conscious desire to exercise their "right to die". Countries take different paths and at different speeds to legalize euthanasia. The difference between the models of legalized euthanasia lies, first of all, in its permitted type (passive or active), distribution to different age categories of hopeless patients (in particular, to children), to incapacitated patients with cognitive disorders. Active euthanasia is allowed in such European countries as the Netherlands (since 2001), Belgium (since 2002), Luxembourg (since 2009), Spain (since 2010), Switzerland (since 2011). Since these years, there has been a change in the attitude towards medically assisted death of the European Court of Human Rights, which previously categorically regarded euthanasia as intentional murder. In all countries that have legalized euthanasia, an active discussion continues regarding the rules for its implementation. A common feature of countries that have already legalized euthanasia is the approval of the procedure by at least a third of medical professionals. Keywords: medically assisted suicide, suicide tourism, Quality of Death Index, suicide of critically ill palliative patients, right to life, right to die.

대체복무제의 개선방향에 관한 소고

It is meaningful to look back on the current alternative service system at the present time, three years after the alternative service system was implemented. In particular, considering that there is still controversy over the punishment of the alternative service system, it is necessary to reconsider what direction the alternative service system should have in the future. Currently, alternative service personnel in Korea are serving in correctional facilities for 36 months, twice the length of active military service, which is longer than the maximum difference between the general military service period and the alternative service period in Armenia, which the European Court of Human Rights called punitive. In addition, in Armenia, it was controversial that the place of service should be at the workplace 24 hours a day, even though the place of service was various private institutions such as orphanages, nursing homes, mental health institutions, and facilities for the disabled. In Korea, the form of having to serve in a single place called correctional facilities and camp service can be even more problematic. In fact, although there are no uniformly established standards under international law regarding the period of alternative service, according to the recommendations of the Ministerial Committee within the European Council and the decisions of the UN Human Rights Commission, it is mentioned that the period of alternative service should be within a reasonable range that is non-punitive. In addition, among the countries implementing alternative service, the largest difference in period of less than 1.5 times was found. And the European countries have alternative service institutions in various fields, such as social welfare, health, culture, religion, peace, education, the environment, and emergency rescue, and Korea also needs to prepare a variety of service institutions as possible in addition to correctional facilities. In addition, in terms of diversifying service types, it is necessary to consider a method of distinguishing between the types of service that can be served as non-combatants within the military and the types of alternative service of civilians outside the military. Lastly, considering that there are countries that have abolished the interview survey in the process of applying for alternative service, and this was a measure of respect for the freedom of conscience of conscientious objectors, I think Korea needs to consider discussing it in the long run.

Religious Freedom in the Workplace in the Case Law of the European Court of Human Rights

Wolność wyznania jest jednym z fundamentalnych praw podstawowych. Jako prawo człowieka, gwarantowana jest przez prawo międzynarodowe, prawo europejskie, jak i prawa krajowe. Jest to prawo, którego realizacja niesie ze sobą wiele wyzwań, szczególnie w kontekście konfliktu między indywidualną wolnością, równością oraz między autonomią jednostki a kolektywnymi swobodami grup religijnych. Szczególnie interesujące jest zagadnienie jego ochrony w środowisku pracy. Głównym celem artykułu jest zbadanie, czy orzecznictwo Europejskiego Trybunału Praw Człowieka (ETPCz) skutecznie reguluje zagadnienie wolności religijnej w miejscu pracy, zapewniając pracownikom adekwatną ochronę. Przeprowadzana jest analiza art. 9 Europejskiej Konwencji Praw Człowieka ustanawiającego wolność religijną oraz odpowiedniego orzecznictwa ETPCz.

Experience of foreign countries in ensuring procedural guarantees of the rights of participants in criminal proceedings

The fundamental rights, freedoms and legitimate interests of a person, being subject to the greatest restrictions during criminal proceedings, are guaranteed by the existence of substantive and procedural rules in the legislation aimed at protecting, defending and implementing procedural guarantees of participants in criminal proceedings. The dynamics of social, political, economic and legal life, the social mentality of today, as well as convergence processes determine the adaptation of national criminal procedure legislation to International law. However, the issues of adaptation of national legislation to the provisions of foreign legislation in terms of guaranteeing each participant in criminal proceedings the protection, defence and realisation of their rights, freedoms and legitimate interests in accordance with international standards remain controversial. At the same time, there are a number of gaps and inconsistencies in the provisions of the criminal procedure legislation, the gradual elimination of which will allow Ukraine to reach the international level as a state that guarantees each participant in criminal proceedings the protection, defence and exercise of their rights, freedoms and legitimate interests in accordance with European standards, as well as reduce the number of applications to the European Court of Human Rights. Based on the results of the study, and on the basis of a selective analysis of foreign experience of certain countries, the article identifies the existing problematic issues related to the guarantee of the rights of participants to criminal proceedings, and also formulates proposals for improving criminal procedure legislation in this area, using international experience. The problematic areas of guaranteeing the rights of participants to criminal proceedings include the legal status of individual participants to criminal proceedings, compensation for damages, and the use of procedural terminology. In order to improve and bring the criminal procedure legislation of Ukraine closer to international standards in terms of protection, safeguarding and realisation of the rights, freedoms and legitimate interests of participants in criminal proceedings, the following proposals have been presented: to establish a unit, body or organisation for the protection of the rights, freedoms and legitimate interests of witnesses with the development of appropriate programmes for their protection; to introduce the use of separate procedural terminology; to develop a procedure for granting and exercising the right to free legal aid to victims, civilians as well as the procedure for compensation for damage caused by a criminal offence.

Guaranteeing russia’s responsibility for war crimes in Ukraine: the information and legal aspect

The article examines the issue of bringing russia to justice for mass war crimes, crimes against humanity and acts of aggression committed during the full-scale invasion of Ukraine. The purpose of the work is to analyse the available legal instruments, to formulate a comprehensive approach to solving this problem and to search for effective information and legal mechanisms to ensure the inevitability of russia's punishment under international law. The research methodology is based on a systematic analysis of current international legal norms and procedures in the field of international humanitarian law. The relevance of the work is due to the unprecedented scale of war crimes committed by russia in Ukraine and the need to bring the perpetrators to justice in order to restore justice. The scientific novelty is that for the first time a comprehensive information and legal model for prosecuting and bringing to justice the aggressor state for war crimes is proposed. The paper analyses the current legal mechanisms for bringing Russia to justice for war crimes committed in Ukraine at the national and international levels. The practical role of the key institutions – the International Criminal Court and the European Court of Human Rights – in ensuring the inevitability of punishment for the russian federation is considered. Potential opportunities for russia to avoid responsibility are identified. The article proposes an information and legal model for the effective prosecution and bringing russia to justice for its act of aggression against Ukraine. The results obtained can be applied in the field of international criminal law and ensure compliance with international humanitarian law norms. The practical significance lies in the formation of a basis for specific actions by the international community to hold russia accountable for crimes in Ukraine. Despite all the difficulties, the international community should make every effort to bring the russian federation to justice in accordance with international law. The proposed information and legal model can be one of the effective tools to achieve this goal.

Parallel Proceedings – Investment Arbitration and the European Court of Human Rights

Abstract This contribution addresses the intersection of international human rights law and international economic law in situations where investors can bring claims under both protection systems. It discusses why multiple proceedings concerning one set of facts may be problematic and identifies situations in which duplication may occur. It presents instruments that have been developed at the domestic or international level to prevent this phenomenon. The article analyses the case law of the European Court of Human Rights (ECtHR) as well as of investment arbitral tribunals dealing with parallel or subsequent litigations. The conclusions set out whether the mechanisms used by arbitral tribunals and the ECtHR are adequate to deal with the phenomenon of potential multiple proceedings.

Postulat posiłkowego stosowania zasad prawa karnego a odpowiedzialność z tytułu administracyjnych kar pieniężnych

The article focuses on the problem of liability for administrative fines, taking into account elements of a subjectivising nature of administrative liability to demonstrate the possibility of subsidiary application of criminal law provisions by public administration bodies. Through the analysis of the case law of the Supreme Administrative Court, selected Regional Administrative Courts, the Constitutional Tribunal, as well as the European Court of Human Rights, it is shown that the problem of measuring and imposing administrative fines on the basis of the provisions of substantive administrative law and Section IVa of the Code of Administrative Procedure requires a much broader analysis than any conducted thus far. Due to the legislator’s failure to guarantee the correct scope of legal protection that would include demonstrating the circumstances that are also of a subjective nature, obliged entities have been deprived of numerous legal guarantees provided not only in Article 42(2) of the Constitution of the Republic of Poland but also in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The analysis of the nature of administrative fines proves that the current regulations of Section IVa of the Code of Administrative Procedure require significant reform, in particular, to guarantee the absence of arbitrary imposition and execution of administrative sanctionsby public administration bodies. Verifying the judgments from the point of view of taking into account the subsidiary application of the provisions of criminal law has made it possible to present a discussion on the nature of administrative liability, which is first and foremost of significance in terms of implementing the obligations of the State Party to the ECHR within the framework of taking into account subjective circumstances, but also in terms of the application of the ne bis in idem principle in the situation of concurrence of criminal and administrative liability. With this in mind, a de lege ferenda postulate is to amend the provisions of Section IVa of the Code of Administrative Procedure by including in its scope additional legal guarantees of obliged entities while taking into account the principle of legalism in its broadest sense.

TECHNICAL MEANS IN CRIMINAL PROCEEDINGS (PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS)

The article examines the judicial legal positions of the European Court of Human Rights (hereinafter — ECHR) on the issue of the use of technical means in criminal proceedings. The rulings of the ECHR on the issues of application of video-conferencing, wiretapping technologies, biometric systems and polygraph are analyzed. It is necessary to ensure the effective participation of the accused in the course of the trial, the possibility of presenting evidence and confidential communication with the defense lawyer when using videoconferencing. The ECHR also insists that there is sufficient legal regulation and safeguards against abuse in the use of special technical means for collecting information on private life and surveillance technologies. The polygraph has no special evidentiary value for the ECHR, but its results can be used along with other evidence. The position of the ECHR that the use of technical means and innovations in criminal proceedings is on the whole positive and contributes to the efficiency of justice is summarized. However, in this case the guarantees of a fair trial must be observed and the violation of the privacy of participants in legal proceedings is inadmissible. Measures to improve the Russian legislation are proposed, taking into account the judicial legal positions of the ECHR on the issues under consideration regarding the use of technical means in criminal proceedings, and the importance of achieving a balance between respect for the rights and freedoms of the individual and the need to use technical means for the effective investigation of crimes is emphasized.

Violence against Women as a Structural Risk: Responding through Prevention with Due Diligence

Situations of crises such as the Covid–19 pandemic expose the fissures in society, both domestic and global. Using violence against women as an example, the paper shows how structural risks amplify during crises and how the concept of due diligence can be used to address these risks. By focusing on prevention, it analyses the existing approaches towards due diligence in the context of violence against women by the Inter-American Court of Human Rights, the European Court of Human Rights, the Committee on Elimination of Discrimination against Women and the Special Rapporteur on violence against women. The paper looks at how these mechanisms have considered the invocation and applicability of the duty of prevention with due diligence as well as the measures that states need to take to discharge such a duty. It concludes with a reflection on what can be done to further strengthen the arguments of the mechanisms analysed in this paper to utilise the full potential of due diligence concerning state obligations towards the prevention of violence against women.

Extraterritorial Application of the European Convention on Human Rights at Sea

We live in a world where we face countless crises and directly experience armed conflicts. The seas, such as the Red Sea, the Black Sea, and South China Sea hold strategic importance in these crises and conflicts. The sea is a unique and challenging environment, considering both its distinct physical characteristics and the jurisdictional issues. At sea, human rights can be compromised in various ways, and these cases often go unreported or they lack sufficient public awareness. It is also an expansive area to monitor, and the effectiveness of the police or military forces is sometimes hindered by limited resources or the reluctance to take action due to the non-compliance with legal regulations. It is the responsibility of the international community to encourage the authorities to prosecute the perpetrators by establishing a legal framework that effectively safeguards human rights and can be enforced by state authorities. This paper aims to explore the challenges of enforcing human rights during the arrest and detention process in cases of transnational crimes or violations of international law, such as piracy, terrorism, and drug trafficking committed on sea, involving the case law of the European Court of Human Rights.