European Convention Of Human Rights Research Articles

Freedom of Expression/Right of Information in Relation to the Protection of Personal Data in the Framework of Globalism in Albania

Freedom of expression and the right to information are fundamental rights of citizens everywhere in the world, including our country Albania, where these rights are sanctioned both in the Constitution and in other international acts, such as the European Convention of Human Rights (ECHR) and the Universal Declaration of Human Rights (UDHR) which are an inseparable part of our legal system.   Received: 25 December 2023 / Accepted: 25 February 2024 / Published: 23 April 2024

The Legal Limits of Jurnalisme

The freedom of expression and information is guaranteed by Article 10 of the European Convention of Human Rights and also by many other international conventions and national constitutions. This freedom is not without limits and the limits are imposed where it affects the the rights of other subjects and state secrets. This paper aims to treat the legal limitations of the jurnalisme. It aims to give an answer to these questions; Does the right of information has limits? How this right is limited? Which is the report between public information and the state secrets? Which is the report between information and the protection of the secret during a criminal investigation? Which is the report between information and private life? For giving an answer to those questions, we will look mostly the international law, using the analytic and synthetic methods.   Received: 25 December 2023 / Accepted: 25 February 2024 / Published: 23 April 2024

Should Courts Decide Climate Policies?

Abstract In State of the Netherlands v. Urgenda Foundation (the Urgenda verdict), the Dutch Supreme Court ordered the Dutch Government to pursue a goal of a 25 % rather than a 20 % decrease in CO2 emissions. The present article discusses the verdict and climate litigation of this kind more generally from a functional perspective rather than from the perspective of democratic legitimacy. It argues that the premises of the Court were inapplicable from an economic perspective and that the faulty reasoning is indicative of reasons why judicial restraint is socially desirable in the area of climate policies. From the viewpoint of social welfare, it may be desirable that a court overrides climate policy if the policy neglects the interests of future generations, i.e. if it is unsustainable. However, the Court did not consult the economic literature on sustainable climate policies. It relied on a consensus among climate scientists, on the European Convention of Human Rights, and on the precautionary principle. We argue that if the Court had consulted the economic literature, it would have found disagreement about how quickly emissions should be lowered, and it would have had to address many complex sources of disagreement that cannot be eliminated by recourse to human rights or the precautionary principle. The Court would have had to subjectively assess different economic theories. However, the litigation process is not set up for and judges are not trained for this complex assessment.

Conservative Jurisprudence and Russia’s Response to ECtHR Judgements on Cases of Domestic Violence

Abstract This article examines Russia’s record in complying with the European Convention of Human Rights, the decisions of the European Court of Human Rights (ECtHR) and the CoE’s policies in relation to the human rights of women – the protection of women from domestic violence in particular. It seeks to explain why Russia has systematically refused to introduce specialized legislation on protection from domestic violence. It argues that human rights of women, especially cases of domestic violence, became the main point of contention between Russia and the CoE for two main reasons: a fundamentally different approach to the human rights of women and equality, inherited from Soviet-era legislation; and a special type of legal reasoning of international legal obligations – conservative jurisprudence – which undermined the understanding of the legal value of protection of human rights of women and led to invoking various arguments of cultural sovereignty. Non-compliance and quiet avoidance of any gender-sensitive legislation, not least on domestic violence, indicate that Russia has never really committed to the rule of law.

From Text to Meaning: Unpacking the Semiotics of Article 9 of the European Convention on Human Rights

AbstractThrough an analysis of the European Court of Human Rights’ decisions concerning the practice of veiling, this article problematises the semiotics-architectural structure of article 9 of the European Convention of Human Rights (Freedom of thought, conscience and religion), questioning which representation of the human and the female subject is recognised and therefore protected by secular/liberal and Human Rights law. It argues that the semiotics-architectural structure of article 9, which is based on the distinction between faith and its manifestation, not only relies on a particular ontological understanding of the religious subject as well as a specific notion of religion, but it also reveals a distinct relationship between the individual and sovereign power through the division between the public and the private spheres. In light of this, the western debate surrounding the women’s veiling overlooks how liberal secularism perceives and defines the religious and legal gendered subject in the modern world, and how this understanding is embedded in and reproduced through the law, which emerges as an instrument for regulating minority religious communities.

Subsidiarity v. Pan-europeanism: LGBTQ and Transgender Rights in the EU and under the European Convention of Human Rights

The European Union and the Council of Europe were supposed to create continent-wide standards and rules for governance, commerce, and human rights. Yet subsidiarity remains an important principle respecting state-specific policy. Occasionally Pan-Europeanism and subsidiarity conflict and this is the case with LGBTQ and transgender rights. This Article examines the legal tensions surrounding the protection of human rights as it addresses transgender individuals and members of the LGBTQ community. It argues that the current framework of law supporting subsidiarity is inconsistent with the broader goals of non-discrimination at the heart of the values of both the European Union and the Council of Europe.

Procedural Approach to the Public Interest in Migration Control when Applying Article 8 of the ECHR

This research explores the European Court of Human Rights’ (ECtHR or the Court) application of Article 8 of the European Convention of Human Rights (ECHR) when engaging the public interest in migration control. The study research explains the current case law of the Court and examines when the public interest in migration control can be applied as a legitimate aim. The research is questioning whether the public interest in controlling migration can be used as a legitimate aim when an interference of the right to family life has been established and whether the public interest in migration control should be seen as a static factor. The research claims that the Court’s unclear way of distinguishing between positive and negative obligations and its lack of assessing the public interests when balancing the personal interests against the public interests in controlling migration makes the case law inconsistent and unclear. In order to make the case law more consistent the research suggests that the Court should use a procedural approach like in cases where the State’s interest in public safety is engaged.

Due Process, the Constitutional Right of the Defendant in the Trial: Overview According to the European Convention on Human Rights

The right to a regular legal process is one of the basic rights recognized by the person, and more precisely a positive right, since its realization requires the intervention of the state. The care that must be shown in respecting the due process of law must be great. This requires not only the vigilance of the administrative bodies and the courts towards their legal obligations, but also the interest of the person himself to claim his right. The paper focuses on the approach that has the right to a regular legal process towards the defendant as well as on the jurisprudence of the Constitutional Court in Albania and the European Court of Human Rights. Answers are given to questions such as: what is the status of the right to a regular legal process in the Constitution of the Republic of Albania and how is it harmonized with the European Convention of Human Rights? What are some of the elements of this right; How is the defendant positioned in front of this right?
  
 Received: 2 October 2023 / Accepted: 10 December 2023 / Published: 23 December 2023

Constitutional protections of property and energy-efficient housing in Croatia

The aim of this article is to present the energy-efficiency building requirements in general and their relationship with the constitutional protections of property afforded by the Croatian Constitution and the European Convention of Human Rights (ECHR), and the reconstructions and energy-efficiency retrofitting of existing buildings and the relationship between these measures and the constitutional protections of property.

Borrowed Words and Judicial Gestalt: A Dialogical Reading of Hirst, the ECtHR and Prisoner Voting Rights

Abstract This article suggests that judgments of the European Court of Human Rights exhibit a textual quality that Mikhail Bakhtin called dialogism, namely, a kind of discourse constituted by a plurality of mutually effecting and interpenetrated voices. Such compositional choice is not just a lengthy prolegomenon to any decision, nor an unnecessary appendix that could be safely eliminated; it is actually fundamental for the construction—and comprehension—of any ECtHR opinion. In this article, I will focus on the 2005 case of Hirst, in which the Grand Chamber declared that the UK legislative blanket ban on prisoner voting is incompatible with the European Convention of Human Rights. As a controversial case about as-yet live-wire issues, Hirst can be shown to be a profoundly dialogized text despite all appearances to the contrary, which paves the way for a more general argument about the dialogical practice of adjudication by the Court.

What’s Fairness Got to Do with it? Fair Opportunity, Practice Dependence, and the Right to Freedom of Religion

The right to religious liberty as for instance set out in the European Convention of Human Rights protects acts of religious observance. Such protection can clash with other considerations, including laws aimed at protecting other state interests. Religious freedom therefore requires an account of when the right should lead to exemptions from other laws and when the right can legitimately be limited. Alan Patten has proposed a Fair Opportunity view of the normative logic of religious liberty. But Patten’s view faces several problems. The normative work in his view is mainly done by added accounts of reasonable claims and of justifiability. So, the Fair Opportunity view in itself does not provide a normative criterion. Defenses of the Fair Opportunity view must therefore turn on the theoretical preferability of its structural features. But the Fair Opportunity view has the wrong form to capture the right to freedom of religion. The form of the right to freedom of religion is due to how its point is to address how states limit the liberty of citizens. Given a practice dependent approach, which assigns importance to the point and purpose of the right to freedom of religion, Patten’s theory is thus problematic.

The political aspect of inter-state litigation before the European Court of Human Rights

From its outset the Inter-State Applications procedure was conceived as the most effective means to put an end to human rights violations, guaranteeing compliance with the European Convention of Human Rights. Nevertheless, with time, this remedy has evolved differently from that envisaged by its authors, becoming only a secondary mecha-nism of the Convention. Today, the overwhelming majority of cases before the European Court of Human Rights (hereafter ,, the ECtHR”) are individual applications. Since its creation, the Strasbourg Court has considered thirty State applications, with only eight of them reaching a judgement on the merits. Still, the number of interstate cases currently being referred to the ECtHR demonstrates their growing relevance. In light of the above, this article shall touch upon the reasons and consequences of this phenomenon.

Implementation of Union Directives in the matter of Romanian Criminal Law. Study on extended confiscation

Through this paper we propose to analyze a very controversial subject in the matter of criminal law institutions, extended confiscation, a mechanism of substantial law that was not found in the original form of the Criminal Code, but which has raised a legal discussion since its implementation.
  In this context, the paper analyzes issues that have been interpreted differently by judicial doctrine and practice, the correctness of the transposition of the directive on extended confiscation in relation to European Union standards, the interference of this sanction with the guarantees of European Convention of Human Rights, the issue of the application of this sanction in relation to the application in time of the criminal law and with regard to certain crimes, but also the interference with other extra-criminal institutions that have a reparative role in the patrimonial plan.

Victim Status of Individuals in Climate Change Litigation before the ECtHR

Abstract The climate change applications currently pending before the European Court of Human Rights (ECtHR) present substantial challenges to the status quo of the Strasbourg system, encompassing both merits and admissibility issues. Of particular concern is their compliance with the admissibility requirement outlined in Article 34 of the European Convention of Human Rights (echr), which stipulates that applicants must be victims of a violation of the Convention by a State to file a case before the Court. Given the diffuse nature of the harms stemming from climate change, identifying individuals as victims of its effects and, consequently, whose rights are allegedly infringed upon, becomes a complex task. Furthermore, establishing a direct causal link between the harm endured and the actions or omissions of a single State proves to be equally challenging. Therefore, the aim of this article is to scrutinize how this admissibility requirement might operate in the cases at hand. In particular, it argues that, albeit with some caveats, it is legally possible to consider some climate change applicants as both direct and potential victims, as per the definitions established by the case law of the ECtHR. Nevertheless, this solution could pose significant challenges to the legitimacy and efficiency of the Strasbourg system, which the Court will have to prevent when deciding these cases.

To have or have not: Limiting the data available for subsequent use by the police

In search of evidence in criminal investigation police often collect data in bulk, and the question addressed concerns whether the bulk data as a whole or only in part may be deemed available for subsequent use. The article suggests that only data exposed to the police in the digital forensic analysis performed as part of the investigation, should be deemed available for subsequent use. Such data are termed digital assessed information and are contrasted to data whose content is not known to the police. The latter should be deleted or made inaccessible for further use once the original case is finalised. The position is anchored in the criminal procedural principles of purpose limitation and purpose orientation, recognised in case-law related to Article 8 European Convention of Human Rights (ECHR), further validated in considerations of fairness and coherence with the rules for use of excess information in intercepted communications.

Vulnerability, Care Ethics and the Protection of Socioeconomic Rights via Article 3 ECHR

Abstract Vulnerability analysis serves a distinct purpose within adjudication of Article 3 of the European Convention of Human Rights ('ECHR'), in that it has been used by the European Court of Human Rights (‘ECtHR’ or ‘the Court’) to lower the threshold for a finding of ill-treatment from which positive obligations relating to socioeconomic rights have arisen. However, the group-based notion of vulnerability invoked by the Court is extremely limited, producing minimal protection from deprivation whilst equally paternalizing and essentializing the populations it deems vulnerable. In light of these failings, this article proposes a new element to be incorporated within the Court’s vulnerability analysis which can deliver greater protection of socioeconomic rights via Article 3: the political theory of care. By highlighting care’s potential to transform the concepts of vulnerability and state responsibility whilst empowering the care-receiver, it argues that care can overcome the limitations of the Court’s current approach as a means of targeting destitution.

Facial recognition technology, democracy and human rights

On 4 July 2023, the Third Section of the European Court of Human Rights (ECtHR) delivered the first judgment on the compatibility of facial recognition technology with human rights in Glukhin v. Russia. The case concerned the use of facial recognition technology (FRT) against Mr Glukhin following his solo demonstration in the Moscow underground. The Court unanimously found a violation of Article 8 (right to respect for private life) and Article 10 (freedom of expression) of the European Convention of Human Rights (ECHR). Regarding FRT, the Court concluded that the use of highly intrusive technology is incompatible with the ideals and values of a democratic society governed by the rule of law. This case note analyses the judgment and shows its relevance in the current regulatory debate on Artificial Intelligence (AI) systems in Europe. Notwithstanding the importance of this decision, we argue that the Court has left crucial questions unanswered.

Tolerance, prohibition of political parties and the ECTHR

Is the European Court of Human Rights (ECtHR) tolerant of extremist political parties? In interpreting Article 11 of the European Convention of Human Rights which enshrines the freedom of assembly and association, the Court is concerned with this issue. This article critically discusses some of the theses put forward in the Court’s judgments. It aims to check some of its perspectives and bring philosophical nuances regarding tolerance. Tolerance can help build a plural and free-thinking society that is so important for the realization of political and democratic rights. The Court’s agreement to ban only two political parties allows us to reflect on the willingness to listen to more extreme political convictions, even if they bother, shock and harass the public sphere.

License in entrepreneurial activity under the provisions of the European Convention of Human Rights

License in entrepreneurial activity under the provisions of the European Convention of Human Rights

Judicial Review of Mufti Decisions Applying Islamic Family Law in Greece

Greece is a unique example of a country member of the Council of Europe that allows for the application of Sharia law by the Mufti on a select part of its citizenry: the members of the Muslim minority in Western Thrace (situated in NE Greece). However, to produce their effects, Mufti decisions need to undergo review and to be declared enforceable by the civil court. The aim of this article is to explore the relevant legal framework arranged in law 4964/2022 and presidential decree 52/2019, whereby the details of such a judicial review are set out. In particular, this article considers the prerequisite of the exequatur to religious adjudication, and then, it goes through all of the levels over which the said review extends, bringing progressively into focus the review of the scope of jurisdiction, the review of compatibility with the Constitution and the European Convention of Human Rights, and the review of some additional issues raised specifically by presidential decree 52/2019 over and above the points just mentioned. A final remark follows in connection with possible errors committed in religious adjudication—errors of law or fact—which remain beyond the reach of the review.