European Convention On Human Rights Research Articles

The road (not) taken: implications of health-focused arguments for rights-based climate change litigation in Europe

ABSTRACT Rights-based climate change litigation has become central to advancing mitigation ambition across the globe. This article analyses trends in legal argumentation in such litigation at the supranational level and identifies two principal arguments commonly employed by litigants: the adverse effects of climate change on human health or culture. The study reveals that claims based on the European Convention on Human Rights (ECHR) almost exclusively engage with health-based arguments, while culture-based arguments are more prevalent in cases brought under the International Covenant on Civil and Political Rights and the American Convention on Human Rights. Various factors are explored to elucidate the reason for this distinction, including the types of applicants, the absence of an explicit right to culture in the ECHR, the European Court of Human Rights’ earlier environmental jurisprudence, and perceptions of justiciability. In doing so, the analysis sheds light on the potential implications of the differing approaches to rights-based climate change litigation before the European Court of Human Rights. This includes the Court’s landmark judgment in Verein KlimaSeniorinnen and others v Switzerland as well as implications for future cases. This research offers critical insights on the strategic direction of rights-based climate change litigation, including its possible limitations.

A New Right to Procedural Accuracy: A Governance Model for Digital Evidence in Criminal Proceedings

This paper motivates and studies the feasibility of a new digital right to procedural accuracy (RPA) for digital evidence processing in criminal investigations. The need to guarantee a new principle of procedural accuracy under Art. 6 of the European Convention on Human Rights (ECHR) is based on the concern that digital forensic science and AI technology have a significant impact on individuals’ rights in criminal proceedings, which are neither coherently nor comprehensively addressed. The personal and material scope of RPA are examined and include: (i) protection against unreliable digital evidence processing; (ii) right to access the chain of evidence, explanation, and forensic assistance; and (iii) the right to participate in the determinative stages of the digital evidence processing. Limitations of the RPA are also discussed.

Fair Satisfaction due to Violations of Patients' Rights in Healthcare

This article explores and presents the meaning of the award of just satisfaction for breaches of patients' rights that interfere with fundamental human rights and the personal integrity of the individual in the field of healthcare. The research is based on well-established methods of legal science, using historical, normative-dogmatic, comparative, axiological and sociological methods. This article reveals and presents a view on the normative regulation of the field of scientific study and points out the shortcomings of the regulation of the judicial protection of rights in health care in the Republic of Slovenia. The study concludes that the interference with a patient's right protected by law results in an interference with the patient's private life, which is why the court should mitigate the ongoing violation and its consequences without undue delay. The patient should be able to seek judicial protection of his or her rights in the healthcare system within the national system through the establishment of an institute of just satisfaction under Article 41 The European Convention on Human Rights (ECHR). The instrument of just satisfaction, as provided for by the ECHR and developed by The European Court of Human Rights (ECtHR), should be used as an important remedy in cases of violation of a patient's rights where no other immediate judicial remedy is available. It remains open to debate for which violations of patients' rights just satisfaction should be granted and in what procedure in order to ensure its swift effect. Keywords: Just satisfaction; non-pecuniary damage; criteria for non-business liability; exceptional circumstances; mitigation of the harmful consequences

Relying on Human Rights Treaties to establish access to Same-sex registered Partnerships and Marriage – Confronting the Question of Cultural Sensitivities

This piece sets out to compare the stance of the Inter-American Court of Human Rights (IACtHR) under the American Convention on Human Rights (ACHR) with that of the European Court of Human Rights (ECtHR) (known as Strasbourg Court) adjudicating on the European Convention on Human Rights (ECHR) in relation to family rights of same-sex couples. Specifically, it looks at the stances taken by the two Courts towards same-sex relationship formalisations – registered partnerships and marriage – exploring their responses to the stances taken in the states within their jurisdiction towards such formalisations. This article confronts and compares the stances taken by the two Courts, and their underlying bases, when they encounter the varying stances on this controversial issue taken in the states in question, relating to cultural predilections. The article concludes that reliance on finding a consensus among the contracting states in this context has had a detrimental impact on the Strasbourg jurisprudence in terms of upholding the principle of non-discrimination, an impact that can be traced to discriminatory stances taken in a number of the ECHR-contracting states towards same-sex unions. It finds in contrast that the Inter-American Court of Human Rights has not accepted that finding such a consensus should affect its decisions in this context, and therefore it has not allowed cultural acceptance of homophobia to affect its stance. Keywords: ACHR; ECHR; ECtHR; IACtHR; Same-sex marriage; Strasbourg Court

Navigating hate speech and content moderation under the DSA: insights from ECtHR case law

ABSTRACT The dissemination of hate speech online necessitates forceful content moderation to protect individuals and democratic values, without undue infringement of freedom of expression and the right to access information. In Europe, recent regulatory measures like the Digital Services Act (DSA) address the amplification of harmful content on social media, and place responsibilities on Very Large Online Platforms to counter societal risks, such as hate speech. The DSA mandates that platforms balance commercial interests with protecting user rights and safety, necessitating nuanced moderation strategies. However, both automated and human moderation face challenges in accurately identifying and countering hate speech. The European Convention on Human Rights (ECHR) and its interpretation by the European Court of Human Rights (ECtHR) provide essential guidance for navigating how to counter hate speech and also protect freedom of expression. This article aims to contribute to the understanding the emerging landscape of platform regulation and how the demands in the DSA can be better understood and operationalized regarding moderation of hate speech, in light of ECtHR case law.

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

Deportation and human rights: the right to respect for private life in MK (Albania) v Minister for Justice and Equality

The sovereign power to control the entry and residence of persons in the state, and the corollary power to deport, has long been considered to be a defining feature of statehood. State discretion as to who may remain within the national border is, however, tempered by international and regional human rights obligations, as well as domestic constitutional principles. In this context, it is well established that a deportation will violate Article 8 of the European Convention on Human Rights (ECHR) if it constitutes a disproportionate interference with family and/or private life in the host country.

The reform of Irish mental health law: Aligning with human rights obligations?

This article critically examines the proposed reforms to Irish mental health law the Mental Health Act 2001 (2001 Act). The article will provide background to the 2001 Act and the lengthy law reform process, which has resulted in the publication of the Heads of Bill that propose significant amendments. The article assesses the suggested reforms, considering Ireland's 2018 ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD), which provides important context to the law reform process. The 2001 Act is the primary piece of legislation regulating mental health services and safeguarding the rights of persons subject to the legislation in Ireland. While passed in 2001, the legislation did not come into effect until 2006. The 2001 Act was seen as bringing Irish mental health law into compliance with international human rights law, in particular the European Convention on Human Rights (ECHR). However, Ireland's ratification of the CRPD has necessitated closer scrutiny of the legislation. This review has culminated in the publication of a Heads of Bill in July 2021 and pre-legislative scrutiny by the responsible parliamentary committee in 2022. The long title of the Heads of Bill explicitly states its goal of safeguarding individual autonomy and underscores its commitment to upholding and advancing the rights of people subject to the legislation. The analysis of the Heads of Bill addresses several key areas. These areas include a background to the long process of review, new guiding principles, the category of persons under the mental health legislation, mental health tribunals, consent to treatment, advance healthcare directives, provisions relating to children and young people, and independent advocacy. Based on this analysis of the Heads of Bill, recommendations are suggested which would strengthen respect for the human rights of persons subject to the legislation.

Annotated insights into legal reasoning: A dataset of Article 6 ECHR cases

We present a novel annotated dataset of legal cases pertaining to Article 6 – the right to a fair trial – of the European Convention on Human Rights (ECHR). This dataset will serve as a useful resource to the research community, to assist in the training and evaluation of AI systems designed to embody the legal reasoning involved in determining the appropriate legal outcome from a description of the case material. The annotations were applied to provide finer-grain classifications of legal cases at the document level. Each classification label was sourced from a domain knowledge model, derived with legal expert guidance and known as an Angelic Domain Model (ADM), such that the classifications correspond to the actual legal rationales used by the Court when determining the outcome of a given case. We discuss our annotation pipeline, including annotator training, inter-annotator reliability evaluation, and the dissemination of the annotation outputs and associated metadata.

Comparative Analysis of Jurisprudence on Interventions to the Right to Property Through Taxation: The Constitutional Court of Türki˙ye and European Court of Human Right

Fundamental rights and freedoms of individuals are guaranteed in both constitutions and international treaties. One of the most important treaties protecting fundamental rights and freedoms is the European Convention on Human Rights (ECHR). Türkiye, which adopts a monist understanding, is one of the countries that are party to the ECHR. Since it was founded in 1959, Türkiye has been one of the three countries that are subject to the most judgments by the European Court of Human Rights (ECtHR). In order to make this bad record better and to protect fundamental rights and freedoms more effectively, the individual application mechanism to the Constitutional Court has been entered into force in Türkiye since 2012. This paper argues whether the case law of the Constitutional Court of the Republic of Türkiye, which is necessary to reduce the applications made to the ECtHR against Türkiye and the violation decisions given by the ECtHR, is compatible with the case law of the ECtHR. The paper analyses the right to property, which is one of the most related rights to taxes, and focuses only on tax interventions to this right. The right to property is important not only because it is directly related to taxes, but also because it is the second most violated right among the violation decisions made by the ECtHR against Türkiye between 1959-2022, after the right to a fair trial. The methodology employed is based on a comparative jurisprudential analysis of the Constitutional Court of the Republic of Türkiye and ECtHR. In this way, the similarities and differences between the way the two courts dealt with the cases in the interventions to the right to property through taxes can be analyzed. As a result, it is understood that both Courts treat the right to property in the same way, but the Turkish Constitutional Court adopts a stricter and more protective interpretation than the European Court of Human Rights in terms of legality criteria.

CONTRIBUTIONS OF DECLARATION OF ETHICS FOR TURKISH JUDICIARY TO THE RIGHT TO A FAIR TRIAL IN TERMS OF EFFECTIVE PARTICIPATION IN TRIALS

A fair trial forms the foundation of all laws and procedures applicable in legal cultures. The European Court of Human Rights (ECtHR) defines a fair trial as a foundational norm of the rule of law in democratic societies and strives to guarantee the proper administration of justice. The right to a fair trial is enshrined in Article 6 of the European Convention on Human Rights (ECHR). One of values protected by the right is the right to participate effectively in a trial. For effective participation in a trial to occur, a hearing must be conducted, and a defendant must have the means and opportunity to express himself/herself. These opportunities must be afforded to defendants by the courts. A court must adhere to ethical rules as well as procedural or substantive rules to ensure a fair trial. The Council of Judges and Prosecutors published "Declaration of Ethics for Turkish Judiciary" on March 6, 2019. Judicial ethics determine how judicial services should be carried out fairly for specific purposes. The purpose of the article is to analyze the contributions of the principles outlined in "Declaration of Ethics for Turkish Judiciary" to the right to a fair trial in terms of effective participation in a trial.

Local authorities at the European Court of Human Rights

ABSTRACT The high-level Reykjavík Declaration (2023) recognises the importance of local authorities (the lowest tier of administration within a state) for the functioning of the European Convention on Human Rights (ECHR) system. This article seeks to provide a better understanding of the human rights role of local authorities and the potential of the European Court of Human Rights (ECtHR) as a promoter of this role. It examines how local authorities appear in the judgments of the ECtHR and assesses the extent to which they provide clear pictures of local authorities and their role in human rights issues. The analysis draws on a close reading of a sample of cases encompassing a diverse set of states and human rights issues. It shows how the ECtHR’s reasoning indicates what is required of a local authority for a specific set of circumstances, but also the general attributes of local authorities that are conducive to the provision of human rights. For judgments of the ECtHR to promote local authorities as human rights actors, local authorities and their interlocutors need to be able to identify the judgments and the elements of reasoning therein that are of most relevance for their circumstances.

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.

Article: When human rights and investment protection intertwined: the role of the European Court of Human Rights in the enforcement of intra-EU BITs within the EU

Since the judgment of the Court of Justice of the European Union (CJEU) in Achmea, a veil of uncertainty has surrounded the destiny of intra-EU investment agreements and their awards thereto. This paper aims to contribute to the debate about the consequences of Achmea focusing on the non-enforcement of intra-EU awards within the EU. Specifically, it examines whether the European Court of Human Rights (ECtHR) may play a role in case of non-enforcement of those awards. It essentially argues that, in some circumstances, the refusal to enforce intra-EU arbitral awards may be considered as contrary to the European Convention on Human Rights (ECHR) by the Court, particularly Article 1 Protocol No. 1 (right to property) and Article 6 (right to a fair trial). In this regard, the central argument of this paper is that a refusal to enforce an award based on the Achmea objection can raise concrete issues of proportionality, especially if one considers the enforcement of ICSID awards. Specifically, the lack of an effective mechanism of effective redress for investors in EU law may lead to a breach of both the right to property and the right to a fair trial that cannot be justified either under the ECHR and the famous Bosphorus presumption.

JUSTICE IN THE LIMINAL: THE COUNCIL OF EUROPE AND THE RIGHT TO A HEALTHY ENVIRONMENT

AbstractAs the human right to a healthy environment is codified around the globe, some systems still lag behind. One noticeable straggler is the Council of Europe, which is currently undergoing its fourth attempt to recognize the right. This article examines the proposals tabled within this system in light of overarching debates about climate justice and environmental rights, before focusing specifically on the spatial and temporal limits of the European Convention on Human Rights (ECHR) and the institutional features of its Court. First, the article describes what the author sees as the current liminal moment in the development of human rights law, a time of transition in which established legal concepts can be questioned or reaffirmed. Second, it sketches recent proposals for locating and conceptualizing the right to a healthy environment within the Council of Europe. Evaluating different options, it makes the case for including this right in the ECHR. Third, the article discusses the right's potential to reshape the spatial and temporal limitations on legal subjectivity and Convention protections. These proposals come at a crucial time when the system's ability to protect human rights from environment-related impacts is being tested by climate litigation. The article understands these developments as interrelated and discusses whether current proposals could deliver on demands for climate justice by extending protection to future generations and for extraterritorial environmental impacts.

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.