European Convention On Human Rights Research Articles

International standard of access to justice and subject of civil procedural law

The current state of development of national systems of civil justice is described by the growing influence of the ideas of accessibility and efficiency of justice in civil cases and requires the harmonization of national systems with international standards of fair trial. This necessitates a rethinking of some classical provisions of the doctrine of civil procedural law to comply with modern realities. The aim of the article is to study the evolution and approaches to the modern interpretation of the international standard of access to justice in civil cases, as well as its impact on the doctrine of the subject of civil procedural law at the doctrinal level. The article is based on dialectical, histo rical-legal, system-structural, logical-legal, comparative-legal research methods, as well as methods of analysis and synthesis, autonomous and evolutionary interpretation of the European Convention on Human Rights (ECHR). The authors advocate a broad approach to the concept of access to justice, including access to justice, access to effective remedies and access to alternative dispute resolution. Through the prism of the international standard of access to justice, the ideas of procedural centralism, based on the idea of judicial protection as the main and most effective form of protection of violated rights, and procedural pluralism, based on the provision of multiple forms of protection, the effectiveness of which is determined by the circumstances of a particular dispute. The authors substantiate the conclusion about the expediency of the perception of the idea of procedural pluralism at the level of the national legal order. A parallel is drawn between the ideas of procedural centralism and pluralism that have developed in foreign literature, and the narrow and broad concept of the subject of civil procedural law, formed in the domestic doctrine. Taking into account the autonomous interpretation of the concept of “court”, enshrined in paragraph 1 of Art. 6 of the ECHR, as well as the increasing popularization of alternative dispute resolution, provide arguments in support of a broad concept of the subject of civil procedural law, including civil litigation and alternative dispute resolution, in particular, arbitration, international commercial arbitration, mediation, etc.

Brevi considerazioni sul tema del sindacato del giudice amministrativo sugli atti della Banca d’Italia

The aim of the paper is to understand wich limits are related to the judicial review of the administrative courts and their jurisdiction in the italian administrative experience, especially with reference to the supervisory decision of the Bank of Italy. Since that the Bank of Italy is now considered as an independent administrative authority, Italian law doesn’t require a substitutive review of the merits of administrative decisions. Also the art. 6 European Convention on Human Rights (ECHR) doesn’t require a substitutive review of the merits of administrative decisions regarding civil rights. This assumption is related to the concrete application of the principle of separation of powers

Compulsory Vaccination for Healthcare Workers in Italy for the Prevention of SARS-CoV-2 Infection.

The European Convention on Human Rights (ECHR) judgement no. 116(2021) of 8 April 2021 establishes the principle of mandatory vaccination, indicating the criteria that national legislation must comply with, following the principle of non-interference in the private life of the individual. Vaccination for the prevention of SARS-CoV-2 infection appears to be an essential requirement for providing healthcare assistance. The European experience with compulsory vaccinations, offers a composite panorama, as the strategy of some European countries is to make vaccinations compulsory, including financial penalties for non-compliance. As in other countries, there is a clear need for Italy to impose compulsory vaccination for healthcare workers, in response to a pressing social need to protect individual and public health, and above all as a defense for vulnerable subjects or patients, for whom health workers have a specific position of guarantee and trust. The Italian Republic provided for mandatory vaccinations for health professionals by Decree-Law of 1 April 2021 no. 44, to guarantee public health and adequate safety conditions. As stated by ECHR, the Italian State, despite having initially opted for recommendation as regards to SARS-CoV-2 vaccination, had to adopt the mandatory system to achieve the highest possible degree of vaccination coverage among health professionals to guarantee the safety of treatments and protection of patients’ health. We present the Italian situation on vaccine hesitation in healthcare workers, with updated epidemiological data as well as the doctrinaire, social, and political debate that is raging in Italy and Europe.

Inter-State Communication under ICERD: From ad hoc Conciliation to Collective Enforcement?

Abstract The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) contains the inter-State communication procedure within which the Committee on the Elimination of Racial Discrimination (CERD) received the following three communications in 2018: Qatar v Saudi Arabia, Qatar v the United Arab Emirates, and Palestine v Israel. In these cases, CERD characterized this procedure as relating to collective enforcement, analogous to the inter-State application procedure within the order/regime of the European Court of Human Rights (ECtHR). However, unlike the European Convention on Human Rights (ECHR), ICERD does not refer to ‘collective enforcement’, but merely contains ad hoc conciliation, that is a bilateral means for reaching a mutually agreed solution to a dispute. This article aims, rather critically, to assess whether, and to which extent, it is justified to view the CERD ad hoc conciliation procedure as a means of collective enforcement.

Physical and sexual abuse against young athletes in sport in light of article 8 of the European Convention on Human Rights (ECHR)

Numerous young athletes have suffered from physical and sexual abuse at the hands of their coaches. Despite this, the European Court of Human Rights (ECtHR) has never dealt with a violation of child rights under the European Convention on Human Rights (ECHR) in the case of physical and sexual abuse in sport. In this situation, a question that may arise is how young athletes can argue a violation of their substantive rights under the Convention before the ECtHR in the case of such abuses? In this regard, the right to physical and mental integrity under Articles 10 (2) and 27 (2) of the Swiss Federal Constitution (SFC) as well as the prohibition of an excessive limitation of personal freedom under Article 27 (2) of the Swiss Civil Code (SCC) may play an essential role to build a bridge between the Convention rights and the fundamental human rights under national law in light of the SFT’s precedents within the meaning of substantive public policy under Article 190 (2) (e) of the Swiss Private International Law Act (PILA). Although the International Federations (IFs) have not recognised a legal standing of young athletes suffering from physical and sexual abuse, state parties to the ECHR must implement positive obligations under Article 8 (1) of the ECHR to take necessary measures to protect young athletes against such abuses by non-state actors and may require sports governing bodies within the jurisdiction to comply with Article 8 (1)’s obligations. Accordingly, this article might serve to clarify a duty of sports governing bodies to protect young athletes against such abuses through a lens of the ECHR.

Kemalism, the Judiciary, and Human Rights Diffusion: The ECHR in Turkey

Turkey’s gradual descent into authoritarianism and the dismal human rights record that has come with it are rightly understood to highlight the illiberal politics of president Erdogan and his ruling AK-Parti. Yet, repression and denial of human rights claims have a long tradition in Turkey which precedes the current crisis by many decades. With a focus on the European Convention on Human Rights (ECHR), this paper examines the period between the ratification of the ECHR by Turkey in 1954 and the mid-2000s. Drawing on the “spiral model” of human rights diffusion (Risse/Ropp/Sikkink 1999), the paper traces the Convention’s contested diffusion into Turkish law, evident in the extensive case law of the European Court of Human Rights against Turkey as well as the strong resistance it encountered from the Turkish judiciary. It then proceeds to argue that this resistance was an expression of a Kemalist outlook, then prevalent among the judiciary and the wider state elite. This argument is supported by an analysis of key ideological features of Kemalism and their expressions in the case law of various Turkish courts. This, in turn, leads to the conclusion that Kemalism essentially functioned as a “blocking factor”, precluding full implementation of Human Rights norms and potentially closing a brief window of opportunity for full democratisation and human rights reform at the turn of the century.

Beyond Urgenda: The role of the ECHR and judgments of the ECtHR in Dutch environmental and climate litigation

AbstractHuman rights have been championed as the new frontier in environmental and climate change litigation, especially since the Dutch Urgenda case. However, little is known about whether this alleged turn to rights is really happening beyond a few high‐profile judgments. This article examines how and when courts have relied on the European Convention on Human Rights (ECHR) and case law of the European Court of Human Rights (ECtHR) in environmental cases in the Netherlands since 2016. In doing so, it will show the broad potential and wide range of environmental cases in which rights are used. Rights talk is at the same time frequently overlooked or avoided by the parties and the courts, partly because the added value is limited in the light of specific national (EU‐inspired) statutory provisions. To date, the actual impact of the EC(t)HR has been rather minimal beyond Urgenda, partly because of the limitations in the ECHR. This articles sketches avenues for further (empirical) research.

The Potential of Application of the ECHR in Climate Change Related Cases

Abstract The purpose of this article is to analyse the existing case-law of the European Court of Human Rights (ECtHR) in environmental cases in order to determine whether the European Convention on Human Rights (ECHR) ensures protection in cases related to climate change and its adverse impacts. Due to the fact that to date the ECtHR has not yet ruled on the issue of climate change, the article analyses environmental cases addressed by the ECtHR based on article 8 (right to respect for private and family life) and article 2 (right to life) of the ECHR taking into account potential application of their conclusions to climate change.

The Modest ECtHR Supervision of Spain´s Prison System

AbstractThe European Court of Human Rights (ECtHR) has not yet ruled against Spain for breaching Article 3 of the European Convention on Human Rights (ECHR) on account of the material conditions in Spanish prisons. Most of the ECtHR´s case law regarding Spanish prisons and detention conditions refers to the incommunicado detention regime, for which the ECtHR has condemned Spain for breaching the procedural limb of Article 3 of the ECHR and, in its most recent decision on the topic: Portu Juanenea and Sarasola Yarzabal v. Spain of 13 October 2018, also for breaching the material limb of that same provision. Besides the case law regarding the incommunicado detention regime, the ECtHR has ruled on issues related to arrangements for granting adjustments of sentence, which have traditionally been understood to fall outside the scope of the ECHR. In this sense, Del Río Prada v. Spain of 21 October 2013 and Arrozpide Sarasola and Others v. Spain of 23 October 2018 constitute important attempts of re‐examining the concept of penalty for the purpose of extending the guarantees of the Convention. Still, however, altogether considered, the case law of the ECtHR on Spain's prison system and policies is relatively modest if compared with the significant case law issued against other European countries regarding this same topic. The reasons behind the limited ECtHR oversight of Spain's prison system are varied and not straightforward and the present article aims at shedding light on this question, while highlighting the many potential areas where an alignment with some of the criteria set forth by the ECtHR is needed.

Recognizing Religious Minority Rights

The European Convention on Human Rights (ECHR) does not contain any provision on minorities, and neither has the European Court of Human Rights (ECtHR) considered the notion of minority rights when dealing with claims involving religious minorities. This contribution aims to show how the Court addresses the rights of religious minorities through the concepts of ‘religious diversity’ and ‘pluralism’. In order to overcome the historical tension between individual rights versus group rights, the author offers a theoretical typology on religious minority rights that combines rights- holders with individual and group interests and takes into consideration UN human rights texts on minorities and the freedom of religion, as well as the ECHR and the Framework Convention for the Protection of National Minorities. By applying the three categories of the above- mentioned typology— individual differentiated rights to members of minorities, group- differentiated rights, and special interest group rights— to the Court’s jurisprudence on members of religious minorities and religious communities, the author concludes that while the ECtHR has systematically reiterated its commitment to pluralism, it has partly failed to grant protection to religious diversity, particularly, when ‘uncomfortable’ religious diversities are the stake.

Economic, Social and Cultural Rights During Crisis in Cyprus: The Interplay Between Domestic and External Normative Systems

Economic, Social and Cultural (ESC) rights have been present and active in the Cypriot legal order from the moment of its constitutional genesis. Due to the special relationship between the Constitution and the European Convention on Human Rights (ECHR), the judiciary has adopted a unique approach when interpreting the Constitution; it has been willing to engage into a comparative juridical analysis and to rely on the ECHR and the findings of the European Convention on Human Rights (ECtHR). Through this nexus with the ECHR and the streamlined approach with the ECtHR, the legal system of Cyprus has been progressive in placing social and economic rights – and to a lesser extent cultural rights – in a secure position. This traditional approach of the Cypriot courts was called into question by the 2011-2016 economic crisis, which challenged the interplay between domestic and external normative systems. The aim of this paper is to assess the impact of the recent economic crisis on the protection of ESC rights and the change in the balance between domestic and normative systems. The analysis concludes that the protection of ESC rights under the Cypriot Constitution, as formed by Cypriot case law, has been substantive and effective, while positively influenced by the extensive deployment of the comparative method. That long-standing approach has been challenged by the economic crisis and it seems that the extrovert judicial viewpoint is now partly reconsidered. The Supreme Court has indicated, albeit in specific instances, its willingness to disregard guidance from external influences and to focus instead on the idea that national constitutional protection can and should exceed that of the ECHR.

Commentary to Article 37 – Environmental Protection of the EU Charter of Fundamental Rights

Article 37 of the EU Charter of Fundamental Rights lays down the duties of public authorities in relation to environmental integration in policy-making and implementation. It does not, however, establish any individually justiciable right to environmental protection, or to an environment of any particular quality. In omitting any reference to environmental rights, Article 37 also falls short of explicitly incorporating in the Charter environmental rights that have been recognised under the European Convention on Human Rights (ECHR) and other international human rights treaties. This lacuna is particularly striking with regard to environmental rights of a procedural character (ie access to environmental information, participation in the decision-making concerning the environment, and access to justice in environmental matters). This paper thus explores whether Article 37, short of asserting any right related to the environment, may nevertheless influence the interpretation and application of EU law and of Charter provisions guaranteeing individual rights.

Georgia v. Russia (II)

On January 21, 2021, the European Court of Human Rights (ECtHR or Court) issued its judgment in the interstate case of Georgia v. Russia (II). Georgia complained that Russia committed systemic human rights violations in the course of the 2008 war in South Ossetia and Abkhazia. Both of these regions are de jure parts of Georgia, but they have not been effectively governed by central Georgian authorities since the collapse of the Soviet Union in 1991. During the night of August 7–8, 2008, Georgian artillery attacked Tskhinvali (the administrative capital of South Ossetia). Russian forces entered South Ossetia and Abkhazia the next day. Russian and Georgian troops engaged in hostilities for five days, before agreeing a ceasefire on August 12, 2008. Since then, a significant military contingent of Russian troops has remained in South Ossetia and Abkhazia. The Georgian authorities complained of systemic violations of European Convention on Human Rights (ECHR) Articles 2 (right to life), 3 (prohibition of torture), 5 (right to liberty), and 8 (right to privacy), ECHR Protocol 1 Articles 1 (right to private property) and 2 (right to education), and ECHR Protocol 4 Article 2 (Freedom of movement).

The Charlie Hebdo Caricatures and Islamophobia vs Freedom of Expression

Charlie Hebdo the famous French magazine published a mockery drawings from the Prophet Mohammed- the Prophet of Islam -followed by massive anger all over the Islamic world and even in other European countries calling to boycott all the French goods on the ground that such drawings defamed and affronted the messenger of Islam. On the other side the French President French President Emmanuel Macron has defended the decision by Charlie Hebdo magazine to re-publish offensive caricatures of Islam's Prophet Muhammad, saying we've freedom of expression, and freedom of belief, which led to more stronger controversy with other leaders in the world. In this article I will clarify whether such caricatures can be considered as freedom of expression or merely offensive drawings and not covered by the protection of the freedom of expression. In this article I will examine the European Convention on Human Rights (ECHR) which entered into force on 3 Sep 1953 and ratified by France. Also on the other hand I will examine the Islamic approach from other's believes, religion and conscience. Part One: The freedom of expression and relevant articles in the ECHR. Part Two: The mockery drawings and the freedom of expression. Part Three: The Islamic doctrine from profane other's religions. Conclusion.

Evolutionary trends in the interpretation of the European Court of Human Rights under the European Convention on Human Rights

The purpose of this Article is to analyse evolutionary trends in the interpretation of the European Convention on Human Rights (ECHR) by the European Court of Human Rights (ECtHR). To achieve this goal, a wide range of general philosophical methods were used. The Article submits that the ECHR has shown a growing commitment to the evolutionary method of interpretation, using the doctrine of a "living instrument", the ECHR, which is particularly important for Member States with specific problems, although this method limits the scope in the discretion of the State. It is concluded that the interpretative methodology used by the ECHR involves the use of its methods, including increasingly developing methods of consensus, efficiency, judicial activism, comparison, innovative interpretation, autonomous method, and "balance" method. This demonstrates, inter alia, the unlimited potential to improve the ECHR's interpretation of conventional standards. In the context of modern transformations in the direction of proactive international justice, judicial activism objectively departs from a formal application of legal norms and reflects the ECHR's desire to protect the fundamental human rights of individuals and communicatethem.

A Mobile Phone in One Hand and Erskine May in the Other: The European Research Group’s Parliamentary Revolution

Abstract It has become axiomatic that backbench Members of Parliament (MPs) at Westminster have limited the capacity for independent action under the burdens of constituency business and whipped votes. Even the limited avenues available for such MPs to shine, such as select committees, are often illusory because parliamentarians have little time to prepare the materials or brief themselves on any but the highest profile witnesses. The political parties have benefitted from this state of affairs; docile MPs make for reliable votes. The rise of the European Research Group (ERG) as a parliamentary force disrupts this narrative. Galvanised by single-issue opposition to the UK’s involvement in ‘Europe’, encompassing both the European Union (EU) and the European Convention on Human Rights (ECHR), the Group successfully exploited the balance of power in the Commons during the 2017–2019 Parliamentary Session. This article analyses the methods by which the Group’s members magnified their influence over Brexit debates.

When mandatory exercise at work meets employees’ rights to privacy and non-discrimination: a comparative and European perspective

In 2017, the municipality of Copenhagen made exercise mandatory for social workers performing physical tasks, such as lifting patients, cooking and cleaning. Private Danish companies have also started to impose exercise on their employees, including sedentary employees. Rationale behind mandatory exercise in the workplace is that it makes employees healthier and more productive, which is a win-win for employees and employers. However, mandatory exercise can put employees in a vulnerable position as employers potentially interfere with some of the fundamental rights of employees, namely their bodily autonomy and privacy. In addition, the increased emphasis on exercise at work and being ‘physically fit’ can indirectly lead to unlawful discrimination practices in recruitment, during employment, and at termination, as employers may exclude or sanction people who are not be able, or do not want, to exercise on various grounds, ranging from age, disability, pregnancy, religion, to health conditions. Therefore, this article examines the lawfulness of mandatory exercise at work in light of the fundamental rights of employees in two selected jurisdictions (Denmark and France), as well as under relevant European Union (EU) law, and the European Convention on Human Rights (ECHR) and related case law. Using a comparative and European perspective, the article examines the legality of mandatory exercise at work in the selected jurisdictions. It analyses and compares the level of protection of employees’ rights to privacy, autonomy and non-discrimination in France and Denmark. It also assesses whether mandatory exercise could qualify as an occupational health and safety measure in the selected jurisdictions. The article examines these questions in light of the increasing recognition and integration of fundamental rights in labour law at European, EU, and national levels. The article finds that the French and Danish labour laws offer different levels of protection of employees’ rights to autonomy, privacy and the right to non-discrimination. As a result, mandatory exercise would likely be deemed to be legal in Denmark, and illegal in France. However, the legality of mandatory exercise under Danish law could be challenged in light of the strong protection of employees’ fundamental rights at EU and European levels. The article concludes that rather than an obligation, exercise should be framed as a right for employees.

Expanding the Right to Remain as a Trafficked Person under Article 4 ECHR and the ECAT

AbstractMS (Pakistan) v Secretary of State for the Home Department, the first human trafficking case related to non‐removal to reach the UK Supreme Court, clarifies the effects of the interplay between the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) and the European Convention on Human Rights (ECHR). The decision expands the right to remain for trafficked persons under Article 4 ECHR with reference to the obligation to investigate trafficking under the ECAT. Trafficked persons cannot be removed while their trafficking experience is being investigated and tribunals have the power to decide whether a person was trafficked. Thus, MS (Pakistan) strengthens the influence of international law, and the role of courts and tribunals. This note argues that, based on MS (Pakistan), other obligations under the ECAT, besides the obligation to investigate trafficking, may in the future be raised in trafficked persons’ appeals against removal.

Anti-libidinal Interventions and Human Rights

Anti-libidinal interventions (ALIs) are used in several jurisdictions to reduce male sex offenders’ libido. One common objection to these interventions holds that when offenders are either required to undergo them or offered to undergo them as an alternative to continued incarceration, ALIs violate recipients’ human rights. In this article, I examine this objection, which I call the human rights objection to ALIs, in relation to the European Convention on Human Rights (ECHR). Specifically, I examine the objection to ALIs in relation to Articles 3, 8 and 12 ECHR, which are the rights proponents of the human rights objection have identified as most relevant. I argue that the human rights objection in its current form fails to establish that ALIs violate recipients’ ECHR rights in respect of all these Articles.

The electoral commission, disinformation and freedom of expression

This commentary examines how the prospective electoral commission could play a role in combatting disinformation in the run-up to Irish elections. While legislative debates have pointed to the potential role of the commission in protecting elections from anti-democratic actors who disseminate false electoral claims, no clear mandate has detailed how this could manifest. This ambiguity is exacerbated by Ireland’s electoral statutory framework, which has struggled to adapt to the challenging digital realities of contemporary electoral engagement. While the emergence of disinformation and related digital exigencies represents a potential for regulatory scrutiny, this must be considered alongside Article 10 of the European Convention on Human Rights (ECHR) and Article 40.6.1 of the Irish Constitution, both of which protect the right to freedom of expression. In positing how the new commission could counter electoral disinformation, a natural starting point is to probe how such functions are shaped and limited by this fundamental right. Moreover, the reluctance of the Irish judiciary and the European Court of Human Rights (ECtHR) to accept regulatory interference with political expression means that restrictions on the dissemination of information in the run-up to elections must be treated with delicacy when shaping the commission’s potential functions in this critical area.