European Convention On Human Rights Research Articles

The Compatibility of Mandatory Vaccination with the European Convention on Human Rights: Implications for a National Vaccination Policy.

This contribution examines the compatibility of mandatory vaccination with the European Convention on Human Rights (ECHR) through an analysis of the relevant ECHR rights and related case law of the European Court of Human Rights (ECtHR). By focusing on Article 8 (Right to Private Life), Article 2 (Right to Life) and Article 9 (Freedom of Thought, Conscience and Religion) ECHR, we formulate conditions under which mandatory vaccination legislation is justified. With that, this analysis aims to provide national legislators with guidance on responsible legislative policy. Additionally, this article discusses the legal framework underlying the Dutch vaccination policy, including developments therein since COVID-19. Furthermore, the role of the European Union in the context of vaccination is briefly discussed. The importance of an extensive societal and parliamentary debate before implementing a mandatory vaccination policy is stressed, as is the need for proportionality in enforcement.

The CRPD and mental health law reform in Scotland

Scotland's mental health and capacity legislation and its implementation is underpinned by European Convention on Human Rights (ECHR) informed principles, and such legislation and its implementation has remained largely ECHR compliant. It is designed to protect individuals' autonomy from inappropriate and disproportionate nonconsensual intrusions but its scope is largely limited to this. However, since the legislation was enacted at the start of the twenty first century the UK subsequently ratified the UN Convention on the Rights of Persons with Disabilities (CRPD) which requires the law and related practice to focus on giving effect to all the rights of persons with mental disabilities (people living with psychosocial, cognitive and intellectual disabilities) on an equal basis with others and to actively support such equality in rights enjoyment.The Terms of Reference of the independent Scottish Mental Health Law Review (2019–2022) included considering and making recommendations to align Scotland's mental health and capacity legislation with the CRPD. After engaging widely with stakeholders its recommendations sought to strengthen the voice of persons who use services and of those who care for them, reduce the need for non-consensual measures and secure rights to the help and support necessary to live a good life. In order to achieve this, it recommended, amongst other things, a refocusing on mental health and capacity law together with a Human Rights Enablement, Supported Decision Making and Autonomous Decision Making framework.

Accession of the EU to the ECHR: A more developed fundamental rights low for the EU after the Lisbon Treaty?

The Treaty of Lisbon introduced important changes in the protection of human rights in the EU, the most important of which lie in the changes in Article 6 of the Treaty on the European Union. These provisions indicate that the EU Charter of Fundamental Rights is now legally binding, having the same status as primary EU law, and that the EU "shall accede" to the European Convention on Human Rights (ECHR). Since the entry into force of the Treaty of Lisbon, the Charter has been referred to on numerous occasions by the European Court of Justice and now acts as the main source of human rights in the EU. This article examines the import of this case law, some of which are ground-breaking and controversial, as well as how the higher profile for human rights under the Charter is likely to change the nature of the EU’s relationship with the ECHR. The article also examines the complex procedure for the EU’s accession to the ECHR, which is now underway, highlighting particularly significant aspects of this process. The article concludes with some general reflections about the status of human rights protection in the EU, suggesting that this has become one of the most significant areas of EU law that has had, and continues to have, a crucial impact on the EU’s relationships with its Member States, the EU and international law.

Realizacja prawa do prywatności w rozumieniu poszanowania życia rodzinnego i wykonywania opieki rodzicielskiej w warunkach ubóstwa. Uwagi na gruncie wybranych norm prawa międzynarodowego publicznego i Europejskiej konwencji praw człowieka

Interference in family life is a particular form of threat to poor families, especially when the only impetus for state action in the form of an interference in the right to privacy is the poor material situation of the family. The article reflects on the possible threats to the realisation of family life within the framework of the right to privacy established under public international law, in particular the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the European Convention on Human Rights (ECHR). In the view of the Human Rights Committee, the family should be oriented towards enabling the child to remain in the care of his or her parents or to return to their care or to other family members. The Committee on the Rights of the Child points out that the implementation of the right to privacy prohibits the recognition of material poverty as a basis and justification for taking a child out of parental care and into foster care. The European Court of Human Rights case law presented in the article confirms that children from poor families are at risk of being taken away from their parents and placed in foster care due to the financial status of the family, which may constitute a violation of the Article 8 of the ECHR. The fact that state authorities wrongly equate the lack of sufficient resources to support the family with child neglect poses a threat to the family life of poor individuals. Victims of violations of family bonds through harm to the private lives of family members should be protected under the human rights system. The following analysis makes it possible to identify the relevant problems from the point of view of the impoverished person or/and family, such as the questioning of parental capacity as a consequence of the erroneous equation of poverty with child neglect, or the withdrawal of the right to material assistance, all of which affect the realisation of family life, and further enables the identification of legal remedies for protection.

Why Incorporate the ECHR? The Domestic Incentives of Human Rights Commitment

Abstract Why do consolidated democracies incorporate international human rights law (IHRL) treaties into national law? Existing research suggests contrastive accounts of the participation of democracies in IHRL regimes. While overall more likely to ratify, consolidated democracies are sometimes reluctant to accept demanding human rights commitments and less likely than both newly democratic and authoritarian regimes to incorporate international law in their constitutions. To theorize why established democracies commit to IHRL, this paper provides a comparative process tracing of the decisions to incorporate the European Convention on Human Rights (ECHR) into national law in Denmark and Sweden in the early 1990s. Why did these solid democracies with an exceptional commitment to human rights wait over 40 years to give domestic effect to a treaty they had helped create? Assessing rival theories of state commitment to human rights norms, the findings suggest that contextual developments in European law provided an opportunity for domestic political elites to seek insurance by incorporating the ECHR to place constraints on executive power. The argument qualifies claims about material strategizing or socialization to European norms as the primary drivers of incorporation.

On the Basis of Migratory Vulnerability: Augmenting Article 14 of the European Convention on Human Rights in the Context of Migration

AbstractThe fact that migration cases seldom raise any questions under Article 14 of the European Convention on Human Rights (ECHR) is neither inevitable nor justified. This article reaffirms the equality provision as a useful and indeed necessary mechanism for the European Court of Human Rights to deal with such applications. More concretely, we build on our previous work, which identified a legal tool suitable for achieving this reorientation in judicial practice: the principle that we call ‘migratory vulnerability’, once recalibrated away from a group-based approach to a notion of vulnerability as situational and socially induced. In this article, we explain how the principle of migratory vulnerability, even if it does not represent an inherently suspect ground of differentiation, enables us to identify instances of discrimination defined as a measurable disadvantage that is disproportionate or arbitrary and cannot, therefore, be reasonably justified on the basis of the Convention. This presupposes a move away from nationality as a privileged ground in migration-related cases and from the ‘comparator’ test to determine Article 14 ECHR violations, to also encompass situational experiences. We end with two examples that show that this reconceptualization is both workable in practice and of added value, enabling the Court to find violations that presently go undetected.

Panel II – Bank Resolution and Fundamental Rights

Abstract The second Panel of the SRB’s Legal Conference, moderated by the SRB General Counsel Karl-Philipp Wojcik, focused on the possible interferences between the resolution framework and the protection of fundamental rights as embedded in the EU Charter of Fundamental rights (the Charter) the European Convention on Human Rights (ECHR) and its protocols. The panellists also picked up case law developments regarding those interferences before both the European Court of Justice (ECJ), and the European Court of Human Rights (ECtHR).

Should the European Court of Human Rights Treat the Anonymous and the Absent Witness Equally? The Application of the Same Three-Step Test

The ‘right to (cross)-examination’ is regulated in Article 6(3)(d) of the European Convention on Human Rights (ECHR). However, this right is not absolute and can, under circumstances, be limited. This is notably the case when evidence given by anonymous or absent witnesses is presented in court.
 In the prominent Al-Khawaja and Tahery judgement, the European Court of Human Rights (ECtHR) listed three principal requirements which was later called the three-step test for the admissibility of testimonies of absent witnesses. Although the situation generated by the admission as evidence of testimonies by absent witnesses and by anonymous witnesses differs, the ECtHR appears to have gradually applied the same test to both types of testimonies to assess whether their admissibility violates the defence rights under Article 6(3)(d) ECHR.
 Even though the three-step test is important, the ECtHR has contradictory judgments on the admissibility of evidence by absent and anonymous witnesses. This study will thus analyse and evaluate this judicially-created test by discussing the differences between anonymous and absent witnesses.

The Constitutional Relevance of the ECHR in Domestic Law: The Kosovo Perspective

Abstract This article examines the status and importance of the European Convention on Human Rights (ECHR) and European Court of Human Rights (ECtHR) Jurisprudence in the national legal system of the Republic of Kosovo. This will be accomplished by pursuing two main paths: first, by a doctrinal analysis of the constitutional status of the ECHR and the Jurisprudence of the ECtHR in Kosovo and, second, through a closer examination and analysis of specific cases as to the level of their (non) implementation by the Constitutional Court and regular courts of Kosovo. Even though Kosovo is not a member of the Council of Europe and has not ratified the ECHR, the ECHR has a specific and privileged place in the legal system of Kosovo and is part of its constitution. This makes Kosovo a very special case regarding the technique chosen for the incorporation of international instruments for human rights in its internal legal order. Public authorities in Kosovo agree to the obligation that the scope and meaning of fundamental rights should always be determined based on the standards established in Strasbourg. However, implementing these Strasbourg-derived standards is not simple or easy. Some of the elements identified for the application of these standards in internal judicial practice include the degree and measure of implementation, the methodology of choosing cases, the methods of interpretation, and local legal culture. This article, explains these elements by analyzing statistical data and specific court cases.

What level of respect does opposition to same-sex marriage deserve in a democratic society?

The opening of marriage to same-sex couples shifted the legal debate from whether that should be done to the extent to which individuals and organisations can lawfully refuse to engage with same-sex marriage or can continue to argue against such marriages. This raises the question of the level of respect that needs to be shown to anti-LGBT (lesbian, gay, bisexual, transgender) views in a democratic society, a question that ought to have been, but was not, the central issue in Lee v Ashers Baking Company Ltd. By focusing on the right not to express a view that the defendants in that case did not hold, the United Kingdom(UK) Supreme Court avoided examining the views that they did, in fact, hold. The defendants’ belief that LGBT people are sinful, manifested in their opposition to same-sex marriage, is in essence a belief in heterosexual superiority, which is a form of homophobia and therefore inconsistent with the values underlying the European Convention on Human Rights (ECHR), especially that of dignity. This article explores the level of respect such beliefs and their expression can expect to receive in the UK. It concludes that it should be no higher than ‘toleration’. It will identify as the central flaw in the Supreme Court’s approach that it afforded a higher level of respect than toleration, that it allowed the belief in heterosexual superiority to exempt the defendants from a legal obligation that would have to be met by those whose views on homosexuality were more in line with the values of the ECHR.

Deference, Dignity and ‘Theoretical Crisis’: Justifying ECtHR Rights Between Prudence and Protection

Abstract The present article engages with human rights law’s purported ‘theoretical crisis’, according to which rights—and specifically those in the European Convention on Human Rights (ECHR)—are bereft of a convincing theoretical foundation. In doing so, the article interrogates the use of crisis-oriented language, challenging the very idea of a ‘theoretical crisis’ of rights. Identifying the tension between judicial activism and judicial deference as the source of the crisis narrative, this piece engages with the theoretical foundations of ECHR rights, rejecting binary opposition between opposing moral and political accounts of these rights. It presents an alternative account by framing human rights as capable of combining convincing moral foundations with institutional and political realities. This means melding principle and dynamism, and using moral values to interrogate a human rights law that remains indivisible from its institutional backdrop. Under this account, both the Court’s tools of deference, especially its European consensus doctrine, and the objection of rights inflationism must be subjected to scrutiny. This article straddles theory and practice to allow for a fresh perspective concerning the justification of rights, what is at stake, who bears the burden of restraint, and how current responses to backlash should be re-evaluated.

Modern Technologies as a Challenge for the Right to Privacy under the European Convention on Human Rights

Abstract The paper explores the right to privacy as a human right and its contemporary challenges in the digital age. It discusses the definition of privacy, its recognition in international human rights documents, and the wording of the right to privacy in the European Convention on Human Rights (ECHR). The article highlights the increasing difficulty of protecting privacy in the digital age and the potential threats posed by modern technologies. It also examines the balance between the right to privacy and freedom of expression, particularly on the internet, citing relevant case law from the European Court of Human Rights (ECtHR). Furthermore, the article discusses mass surveillance and the protection of personal data as a component of the right to privacy. It emphasizes the importance of effectively enforcing the right to privacy to protect individuals and societies.

ECtHR Case-law Concerning Russian Aggression on Ukraine and the Events Taking Place after 2014

Abstract Ukraine has faced ongoing armed conflict within the eastern parts of its territory since 2014. The state witnessed the annexation of Crimea, de facto occupation of Donetsk and Lugansk regions, the shooting down of Flight MH-17, and numerous human rights violations in the eastern parts of the country. Since the Russian aggression in 2022, Ukraine has faced armed conflict throughout the country. At the same time, Russia and Ukraine had been states parties to the European Convention on Human Rights (ECHR). Russia ceased to be a party to the ECHR on 16 September 2022, due to its expulsion from the Council of Europe (CoE) six months earlier. All the applications against the Russian Federation filed to the European Court on Human Rights (ECtHR) before this date should – and will – be examined by the Court. This research mainly aims to analyse the Court’s existing case-law concerning the events in Ukraine after 2014, and the ECtHR jurisprudence concerning armed conflicts. The purpose of such analysis is to examine the possibilities and challenges the Court will face in its forthcoming judgments in inter-state applications filed by Ukraine against Russia. It should be stressed that the execution of these future judgments may also be an issue.

Cross-Border Disaster Displacement and Non-Refoulement under Article 3 of the ECHR: An Analysis of the European Union and Austria

Abstract Academic literature and policy papers have suggested that the principle of non-refoulement can address the protection gap that exists for people displaced across international borders in the context of disasters and climate change. This article analyses whether non-refoulement under article 3 of the European Convention on Human Rights (ECHR) and subsidiary protection under article 15(b) of the European Union (EU) Qualification Directive could meet this expectation. It assesses their applicability to the cases of individuals who would face difficult living conditions due to the impacts of disasters upon return to their State of origin. This analysis lays the groundwork for a case study focusing on Austria, which as a Council of Europe and an EU Member State has obligations under the ECHR and the Qualification Directive. The case study discusses whether the principle of non-refoulement under article 3 ECHR and the eligibility criteria of subsidiary protection – as incorporated in Austrian law and as interpreted by Austrian courts – address the protection gap at the national level. To this end, the results of a qualitative analysis of 646 decisions on international protection decided by the Austrian appellate court are presented. The article concludes that the ‘livelihood’ approach used by the Austrian courts opens up the possibility of taking disasters and their impacts into account when conducting a real risk assessment under article 3 ECHR. However, the European Court of Human Rights’ suggestion of applying the ‘medical cases’ approach in cases relating to ‘naturally occurring phenomena’ is not adequate to address the protection gap. Against this backdrop, the article reflects on a possible way forward.

Non-compliance of the European Court of Human Rights decisions: A machine learning analysis

The paper investigates all (971) non-executed pending leading cases of the European Court of Human Rights (ECtHR) between 2012 and 2020 through Machine Learning (ML) techniques. Drawing on the extant scholarship, our interest on compliance has centred on state level and case level variables. For the identification of important variables, four databases have been used. Each country party to the European Convention on Human Rights (ECHR) received 232 distinct factors for eight years. Since we aim to make a parameter estimation for a high-dimensional data set, Simulated Annealing (SA) is employed as feature selection method. In the state level analysis, Support Vector Regression (SVR) model has been applied yielding the coefficients of the variables, which have been found to be important in spelling out non-compliance with the ECtHR decisions. For the case level analysis, different cluster techniques have been utilized and the countries have been grouped into four different clusters. We have found that the states that have relatively high levels of equality before the law, protection of individual liberties, social class equality with regard to enjoying civil liberties, access to justice and free and autonomous election management arrangements, are less susceptible to non-compliance of the decisions of the ECtHR. For the case level analysis, type of violated rights, the existence of dissent in the decision and dissenting votes of national judges for their appointing states affect the compliance behaviour of the states. In addition, a notable result of the research is that if a national judge casts a dissenting vote against the violation judgment of the ECtHR involving the state that appointed him/her, the judgment is likely not to be executed by the respondent state.

Food, dignity, and the European Court of Human Rights

Abstract Austerity measures and the cost-of-living crisis have led to rising poverty rates and violations of socioeconomic rights in the UK and Europe. However, there are limited routes of redress for these violations in many European countries. Claims using Article 3 of the European Convention on Human Rights (ECHR) to address violations of socioeconomic rights are suggested but not fully described in the academic literature. The European Court of Human Rights has found violations of the Convention in very limited circumstances caused by poverty and destitution. These circumstances include violations of the ECHR in cases of insufficient food being provided to those detained by the state. This paper considers possible violations of Article 3 ECHR in relation to food poverty. It argues that hunger is a violation of human dignity and provides tangible evidence of degrading treatment. It identifies benefit caps, the two-child limit, and benefit sanctions as policies that can lead to food poverty and, as a result, could amount to degrading treatment. For some living in food poverty due to these policies, Article 3 ECHR may provide a route of redress.

FEATURES OF IMPLEMENTATION OF THE RIGHT OF AN INDIVIDUAL TO DESTROY INFORMATION REGARDING HIMSELF (RIGHT TO BE FORGOTTEN)

The article defines the content of the concept of an individual’s right to destroy information regarding himself (the right to be forgotten) as one of the most important elements of the right of an individual to information regarding himself, which consists in the ability of an individual to demand deletion or erasure of personal information. The author determines that an individual’s right to destroy of information regarding himself enables an individual to control the availability and dissemination of information regarding himself, which may prevent the endless dissemination of personal information about an individual and potential damage to him or his confidentiality in the future. The author determines that the EU has made a significant contribution to the regulation of the right to be forgotten in the complex of personal data protection legislation, since EU Regulation 2016/679 sets out the conditions for acquiring such a right, the grounds for unconditional fulfillment of a request for deletion of information regarding oneself and the cases in which this right may be limited. However, the latter does not consider the entire scope of personal information, which complicates the mechanism for exercising this right. The analysis also revealed that the United States does not have a unified federal legislative regulation of the right to erase or destroy, and that court practice generally does not satisfy claims for the erasure of information regarding oneself, referring to the provisions of the First Amendment to the Constitution. In Canada, civil law is focused on certain cases of exercising the right to demand the removal or correction of certain information by the original source, but the Canadian legal framework does not define the right to be forgotten. The concept of the civil right to be forgotten in the understanding of the legal system in Ukraine is also not defined. Summing up, the author notes that the case law of the European Court of Human Rights is currently focused on establishing the criteria and limits of balancing between Article 8 of the European Convention on Human Rights (ECHR) and the data controller’s right to freedom of expression under Article 10 of the ECHR in terms of ensuring the right of an individual to be forgotten. In Ukraine also there is an urgent need to regulate the right of an individual to information regarding himself, especially in terms of his right to erase such information and to regulate the mechanism for exercising the right of an individual to destroy information regarding himself.

지능정보사회에서 사회보장 영역의 정보화와 기본권 보호

In the field of social security, the transition to the ‘Digital Welfare States’ is accelerating as we detect fraud, and discover welfare blind spots using intelligent information technology. However, this can increase concerns about privacy protection and the advent of a surveillance society, and fixation of prejudice. The balance between innovation using new technologies and protection of fundamental rights is raised as an important task. In relation to these issues, this paper analyzes the Hague District Court’s case on the System Risk Indication (SyRI) to examine the impact of informatization in the social security area on the guarantee of basic rights and the implications to South Korea related to the direction of normative response to it.
 SyRI is a legal instrument used by the Dutch government to detect various forms of fraud, including social benefits, allowances, and taxes fraud. The court has ruled that the legislation regulating the use of SyRI does not comply with Article 8 of the European Convention on Human Rights (ECHR), which protects the right to respect for private and family life, home and correspondence. The court has decided that the legislation does not strike a fair balance, as required under the ECHR, which would warrant a sufficiently justified violation of private life. In that respect, the application of SyRI is insufficiently transparent and verifiable.
 The SyRI case has an important meaning for many countries pursuing a digital welfare state in that it warned of such dangers regarding the digitalization of welfare, which has been promoted with only the convenience and efficiency of social security administration. Even if it is need to use intelligent information technology for a legitimate purpose, it can cause various risks and side effects, so we must first establish a legal basis through sufficient social discussion and agreement. In addition, rather than obsessing over efficiency and administrative convenience, it is necessary to think about fundamental measures to solve the problems of fraud and blind spots in the social security field, and focus on using technology for this purpose. Also, the legislation should accommodate enhanced transparency regarding risk models and algorithms, provision of information to the data subjects, objective evaluation procedures for the need for data processing and the adequacy of the process, and data protection impact assessment. Through this, it will be possible to prevent damage to constitutional values such as human autonomy, the right to self-determination of personal information, the privacy or the right to respect for private life, and equality, and to minimize restrictions on fundamental rights.

The Disappearing ‘Minimum Rights’ of Article 6 ECHR: the Unfortunate Legacy of Ibrahim and Beuze

Abstract This article critiques the European Court of Human Rights’ recent extensive case law on the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR), and particularly the right to legal assistance in criminal trials. The article examines the significant and ongoing impact of the judgments in Ibrahim (2016) and Beuze (2018) and argues that the recent case law reflects buyer’s remorse on the part of the Court for its landmark judgment in Salduz (2008). Article 6 is among the most heavily litigated provisions of the ECHR, and this article is the first extended scholarly analysis of the post-Beuze case law. The article identifies two interrelated trends in the most recent case law: first, the Court taking a number of analytical steps that allow it to overlook the text of Article 6(3) in favour of an impressionistic assessment of the overall fairness of the proceedings; and, second, the Court providing Governments with multiple opportunities to advance public interest justification arguments despite continued pronouncements that Article 6 is an unqualified right. The article suggests that the jurisprudence is weakening the Article 6 guarantees.

Human Rights as a Regulatory Tool for ‘Just Transition’ in Europe (and Beyond)

In the context of increasing human rights litigation on climate change, this article examines the potential to include labour-related concerns regarding just transitions. Taking the European Convention on Human Rights (ECHR) as a case study, the argument is made that there is potential to do so, not only utilizing Articles 2 and 8, but also Articles 10 and 11. The scope of the European Court of Human Rights (ECtHR) case law is examined in this respect. The article examines case law which is indicative of the potential application of Articles 2 and 8 to work and the environment, alongside the prospects of combining claims under Articles 10 and 11. Emerging jurisprudence on Articles 10 and 11 may be significant, as recent study of ‘human rights experimentalism’ indicates, since efficacious engagement in human rights litigation requires collective voice from those most affected, both in terms of crafting claims and implementing judgments. Their recognition in the context of combined environmental and labour concerns would be an important step towards transformational structural change relating to ‘just transition’ Human Rights, Climate Change, Just Transition, European Convention on Human Rights (ECHR), European Court of Human Rights (ECtHR), Freedom of Association, Worker Status, Human Rights Experimentalism