European Convention Research Articles

CHILDREN’S RIGHT TO PROTECTION FROM LABOUR AND SEXUAL EXPLOITATION

Children's rights have a very important place in human rights law. One of the important steps towards protecting fundamental children's rights is establishing a 'special juvenile justice system.' Special laws for children in modern societies are important in protecting children's rights. In addition to special laws, international agreements in this context play a key role in protecting and developing children's rights. There are different forms of child exploitation, such as sexual exploitation, child labour, physical abuse, psychological abuse, forced marriage, sexual assault, organized begging, etc. Nowadays, we see a significant increase globally when we look at the data related to child abuse and child labour. When it comes to child sexual abuse, no universally accepted definition defines sexual abuse. In this context, it is also important to emphasize the difference between sexual abuse and sexual exploitation. When we consider child labour, child labour negatively affects children's mental, social, physical, and psychological development. Child workers work long hours, often in dangerous conditions, to contribute to the livelihood of their families. Working conditions, also prevent these children from going to school, spending time with their peers, playing games, and spending their free time. There are important international conventions such as the UN Convention on the Rights of the Child; the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote Convention); Optional Protocol of the Convention on the Rights of the Child on the sale and sexual exploitation of children; The Budapest Convention; Convention 182 on The Worst Forms of Child Labour, 1999; Maritime Labour Convention, 2006; Worst Forms of Child Labour Recommendation, 1999 (No. 190) that we should particularly highlight in terms of the prevention of both child sexual exploitations.

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

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

TECHNOLOGY AND LEGAL CHALLENGES OF CONTEMPORARY ARMED CONFLICT

The purpose of the article is to research the relationship between IHL, IHRL and national law norms, and to give recommendations about the prevention of using technologies in contemporary armed conflicts. Research methods: in the article, the research was carried out using the comparative-legal method in order to present the relationship between international and national legal norms. Also, we will use the normative method to emphasize the need of introduction of new norms to regulate the problem. Results: after the World War II, adoption of the new international norms significantly decreased the war statistics, however, in recent years, development of technologies, which was further accelerated by the pandemic, changed the mentioned statistics, to the extent that new technologies are actively used in war. Unfortunately, preventive and/or prohibitive international norms do not exist, therefore, we do not have the practice of regulating them. Paucity of regulative norms and the absence of proper literature in this field underscores the relevance of this topic. The use of new technologies can lead to violations of the principles of international law and human rights, which requires the creation of preventive mechanisms within the framework of international law. Discussion: the relevance of the topic is also determined by the war situation in the world, which reminds us that against the backdrop of challenges in international law, there is a gap in terms of illegal integration of technologies in contemporary armed conflicts, which, as a result, leads to a breach of human rights and violation of the norms of both the Geneva Convention and the European Convention on Human Rights.

Міжнародно-правові та національні гарантії реалізації права особи на захист життя і здоров’я

This article analyzes the norms of international and national legislation concerning the right of individuals to life and health protection, through the lens of their practical implementation. The study identifies the positive and negative aspects of the legislative regulation of the right to protection, examines the reasons for states’ non-compliance with certain international legal treaties, and offers several remarks on the effectiveness and feasibility of the established legal provisions. In particular, the publication emphasizes the high efficacy of the norms of the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child in light of the practice of the European Court of Human Rights and the activities of UN specialized committees. At the same time, the paper criticizes the effectiveness of the provisions of the Geneva Conventions and their additional protocols due to the lack of proper mechanisms for their implementation and identifies the main reasons for states’ violations of the aforementioned international treaties. Among the main issues of the implementation of the norms of these conventions, the author identifies the lack of political will of the states, insufficient training and awareness of military personnel, non-compliance by states with international justice mechanisms, and the lack of effective control and monitoring of compliance with the norms of the conventions. Additionally, based on the analysis of the practice of applying the legal rules on necessary defense, the article highlights the urgent need to define the time limits of the defense situation and the criteria for determining the proportionality of actions during defense at the legislative level. Furthermore, to improve and eliminate inconsistencies between the provisions of the Criminal Code of Ukraine and the Constitution of Ukraine, the author proposes specific amendments to the Basic Law.

From statutory localism to Strasbourg jurisprudence: the changing legal place of Humanism in religious education in England

ABSTRACT This article will show how statutory localist principles for religious education in England have become increasingly entwined in national and supranational European processes, most recently after demands for Humanism’s inclusion in syllabuses. Four legal phases are outlined. The statutory localism of 1944 is described, notably the establishment of locally agreed syllabuses addressing contextual needs. Then, the 1988 reforms are considered, especially the inclusion of criteria with a national focus on ‘Great Britain’. Next, the first of two recent human rights cases in the English courts is reviewed: R (ex. P Fox) v SSE, in 2015, under A2P1 of the European Convention on Human Rights (right to education), on the absence of Humanism in examination specifications. Finally, R (ex p. Bowen) v. Kent County Council, in 2023, on Kent’s refusal to accept a Humanist representative, under Article 14 (freedom from discrimination) is discussed. It is argued that local decision-making must now pay attention to complex national and supranational law. The arrangements suggest an unwieldy intersection of the local and global. Local decision-making has become geographically indeterminate as contextual concerns, national judicial decisions and supranational obligations must be addressed.

Regulating advanced biomedical technologies: A modern criminal law perspective

This study explores the urgent need for criminal law to address the advancements in biomedical technologies, particularly focusing on cloning. It highlights the dichotomy between the potential therapeutic benefits of cloning technologies, such as combating hereditary diseases, and their possible misuse. The paper discusses international legal frameworks and declarations, such as the United Nations Declaration on Human Cloning and the Council of Europe Convention on Human Rights and Biomedicine, which seek to navigate the ethical and legal challenges of cloning. The distinction between therapeutic and reproductive cloning is emphasized, with therapeutic cloning offering significant medical advancements raising profound ethical concerns, particularly regarding the moral status of the embryo. The paper critiques the current legislative landscape in the Republic of Armenia, which it finds insufficient in addressing the complexities introduced by these technologies, suggesting a need for comprehensive legal reform to safeguard human dignity and genetic integrity within the context of modern medicine.

Arbitration and the right to a fair trial

Abstract It is a good thing to resolve disputes. Yet arbitration is perceived as being contrary to the right to a fair trial under article 6 of the European Convention on Human Rights. Indeed, the current approach of the courts is to say that an agreement to arbitrate is a waiver of the right to a fair trial. That is factually incorrect and alarming in principle. This article investigates the problem and proposes a new approach. The end result confirms the legitimacy of arbitration and improves our understanding around the independence of arbitrators and the confidentiality of proceedings.

The Impact of Turkey's Withdrawal From the Istanbul Convention on Suspicious Female Deaths and Femicides.

In recent years, suspicious deaths, often portrayed as "falls from a height," have been increasingly associated with femicides in Turkey. This phenomenon coincided with the official withdrawal process from the "Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence" (Istanbul Convention). Our study aims to reveal the impact of Turkey's withdrawal from the Istanbul Convention on femicides and the yet officially unrecognized "suspicious female deaths." This research, conducted in a descriptive, cross-sectional epidemiological style, draws its population from records of suspicious female deaths and femicides that occurred in Turkey between January 1, 2020, and June 1, 2023. There has been a notable increase in the rate of suspicious female deaths. Additionally, a significant rise has been observed in the proportion of women who were employed, had children, and sought legal protection in these deaths. The study suggests a return to the Istanbul Convention.

Criminal law protection of private life in the context of negative and positive obligations of the state

The article examines the significance of the State of Ukraine’s fulfillment of the negative and positive obligation to ensure proper realization, non-interference and protection of the right to privacy for its criminal law protection. The author emphasizes the importance for each State which is a party to the European Convention on Human Rights to formulate a national criminal law policy around criminalization of socially dangerous encroachments on human privacy in the context of compliance with the provisions of Article 8 of the European Convention. The author reveals the concept and content of the negative and positive obligations of the State in this area. The author analyzes the doctrinal approaches to understanding the significance of the ECHR legal positions formed because of legal interpretation of the provisions of the European Convention as a source of criminal law and criminal law policy of Ukraine. The author develops the position that such legal positions are not a source of criminal law. The author concludes that the provisions of the Convention on ensuring respect for human privacy, as interpreted by the ECtHR in its judgments (whether in respect of Ukraine or any other State party to the Convention), may be recognized as grounds for criminalization in a narrow sense, which does not include penalization. Formation of two main approaches to understanding the “right to respect for private life” provided for in Art. 8, namely, as the state’s obligation not to interfere in the private sphere of a person (negative obligation) and as the state’s obligation to take active steps to protect this right (positive obligation), actually combines the right to non-interference by the state in the private life of a person and the right to respect, which is realized through the creation of effective mechanisms for the protection of the right to privacy by both state bodies and individuals. Thus, the need to fulfill the negative and positive obligations of the State to comply with Article 8 of the European Convention is a significant factor in the social conditionality of criminal law protection of respect for private and family life in the context.

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.

The exclusion of Russia from Council of Europe: initial reflections on the effects

Abstract The new situation related to Russia’s aggression against Ukraine led to Russia’s exclusion from the Council of Europe and the European regional human rights protection system in March 2022. This article aims to examine the legal and political consequences of the Russian Federation’s exclusion from the Council of Europe and the European human rights protection system. The research objective was achieved through the analysis of normative acts (hard law, soft law) of the Council, a review of domestic and foreign literature, and the analysis of statistical data provided by the Council and the European Court of Human Rights. The article seeks to answer the following research questions: 1. What are the actual and potential consequences of excluding Russia from the Council for both Russia and other member states?, 2. What impact will Russia’s exclusion from the Council of Europe and the European human rights protection system have on the citizens of Russia and those under its jurisdiction? Membership in the Council of Europe entails mandatory participation in the European human rights protection system, based on the European Convention on Human Rights and the European Court of Human Rights. The primary consequences of Russia’s exclusion from the Council are: 1. exclusion from the family of European states, 2. denunciation of the Convention and other agreements adopted within the organisation, and 3. the inability to file individual and interstate complaints against Russia.

Is it time for a European Convention against Racial Profiling?

Four years after the murder of George Floyd and the global Black Lives Matter protests, racial profiling not only remains prevalent in law enforcement practices in- and outside Europe, but takes on new forms in the wake of technological developments enabling large scale data analysis and the use of algorithmic risk profiles. A few years ago, the European Court of Human Rights (ECtHR) first dealt explicitly with the issue of racial profiling in the twin cases of Basu v. Germany and Muhammad v. Switzerland. More recently, the ECtHR held in Wa Baile c. Suisse that Switzerland had violated the prohibition of discrimination by subjecting the applicant to racial profiling at Zürich train station, as part of a police action to apprehend persons without a valid residence permit. 1 While these judgments, especially in Wa Baile, go some way towards securing international State accountability for racial profiling, they also illustrate the difficulties of fighting such profiling as a form of structural discrimination under the ECHR. Meanwhile other human rights bodies, at the European and international levels, have both acknowledged the structural nature of racial profiling and published numerous policy guidelines and recommendations for positive State action to ensure non-discriminatory law enforcement. Yet, to date all of these instruments remain at the level of soft law. Despite the ECtHR's recent efforts, European human rights law thus does not impose legal obligations on States to actively prevent and combat racial profiling. This column signals this gap, and considers some of the pros and cons of adopting a European Convention against Racial Profiling.

The impact of EU law on national legal systems and the world order

The article analyzes the impact of EU law on national legal systems and the world order. With the collapse of the Soviet Union, the EU began active work on strengthening its authority and influence. In the 1990s, the EU (whose members also belonged to the Council of Europe) made the ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms (with Protocols) (European Convention on Human Rights) a necessary condition for EU membership, which involved a lot of preparatory work in the field of human rights for candidate countries. The founding treaties of the EU, in contrast to ordinary international treaties, established a new legal order with its own institutions, in favor of which states limited their sovereign rights in increasingly wide areas, the subjects of which are not only member states, but also their citizens. The active development of integration processes taking place within the framework of the EU leads to further convergence and closer interaction of the national legal systems of the member states with the EU, as a result of which the circle of legal relations, which are legally regulated by the norms of EU law, is expanding. A key role in the proper functioning and implementation of these norms (EU law) is played by the specific procedure of their implementation into the national law of the member states, which is understood as the process of transposition of the norms of EU law, including the creation of the order and procedures for their introduction into the national legal systems of the member states. With the deepening of European integration, the constitutionalization of EU law began: the founding treaties evolved from a set of agreements binding only on member states to founding treaties that provide the basis of a single legal regime. This regime grants rights and imposes obligations on all public and natural persons on the territory of the EU, since the norms of the founding treaties have direct effect and absolute supremacy, forming a kind of integration legal system. Currently, there is a close connection between EU law and the national legislation of the EU member states. The impact of EU law on the national legal systems of candidate countries for EU membership is indisputable. These trends suggest that while the emergence of Community (now Union) law has given rise to a new legal order, distinct from national law, these historically distinct legal orders now form a common legal system.

The Personal Identity of the Human Being and the Right to Privacy from the Perspective of Standards of the European Court of Human Rights: Theoretical Legal Reflections

Abstract This article seeks to present the problem of the personal identity of the human being as an important element of the right to one’s private life being respected. The presentation is from the point of view of the guarantees related to the establishment of standards for the protection of human rights by the European Court of Human Rights in Strasbourg. Relevant for this reflection is the theoretical legal approach to this matter, with particular reference to the methods of interpretation of the European Convention on Human Rights. The article discusses the problem of understanding personal and social identity in a cultural context related to group and individual axiology. It presents historical determinants of the ideology of approaching the status of the individual within the state and the general standards of the right to have one’s private life respected. Two key methods of interpretation for devising standards of protection, i.e. the evolutionary interpretation and the method of the cultural margin of assessment, are also analysed. Not only do these methods allow for taking changes in European social axiology into account, but they also allow for the distinctiveness of social axiology at the local level. From this perspective, an answer is given to the question, do the ECHR’s standards for the protection of the right to respect for private life serve to reinforce the personal identity of a human being?

Judicial control over the observance of human rights and freedoms during the consideration of the prosecution’s motions for permission to conduct covert investigative (search) actions in terms of observance of the principles of the right to a fair trial

The article is devoted to the problematic issues of regulation of judicial control during consideration of applications for permission to conduct covert investigative (detective) actions and use their results for other purposes, in terms of ensuring the right to a fair trial guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The principle of fairness of a trial is interpreted in certain judgments of the European Court of Human Rights as the proper administration of justice, the right of access to justice, equality of parties, adversarial nature of the trial, reasonableness of the trial, etc. The construction of Article 6 of the Convention indicates the existence of the following key elements of the right to judicial protection: 1) the right to a hearing; 2) fairness of the hearing; 3) publicity; 4) reasonable time; 5) hearing by a court established by law; 6) independence and impartiality of the court. The author examines the key issues affecting the objectivity of court decisions in this area, imperfections of the procedures provided for in the criminal procedure legislation in terms of ensuring the fairness of the trial, reasonableness and motivation of the court decision. Special attention is paid to the problems of ensuring the independence and impartiality of the court as a factor that significantly affects the legality of such decisions, and the author suggests ways to improve the effectiveness of judicial control in this area. According to the author the legal regulation provided for by criminal procedure legislation in the area of judicial control over covert investigative (detective) actions, both in terms of consideration of applications for permission to conduct activities related to interference with private life and the use of the information obtained in another criminal proceeding or for another purpose, does not ensure compliance with the guarantees of the right to a fair trial provided for in Article 6 of the European Convention. Along with the need to take effective measures aimed at ensuring the independence of the judiciary and the impartiality of judges, criminal procedure legislation also needs to be improved. In particular, the article suggests that reforms should be aimed at overcoming “formalism” in the course of consideration of applications for permission to conduct covert investigative (detective) actions.

JR87, Application for Judicial Review

JR87, the first respondent, now nine, attended a controlled primary school in Belfast and took part in non-denominational Christian religious education (RE) and collective worship (CW). Her parents described themselves as ‘broadly humanist’ and had not raised their daughter in any religious tradition. Once she began attending school, however, they noticed that she would say a prayer before eating and ask them questions about God and religion. They voiced their concerns to the school about its RE teaching and were told that its provision of RE and CW was ‘bible-based’, followed the core syllabus for education and complied with the relevant legislation. They challenged this, arguing that the relevant legislation contravened their Convention rights under Article 9 of the European Convention on Human Rights and Article 2 of Protocol 1 (‘A2P1’). They were successful in the lower court and the Department of Education appealed.

The right to a fair trial in the light of the minimum guarantee of legal assistance in the practice of the European Court of Human Rights

The research attempts to form the essence of the modern understanding of the right to a fair trial through the prism of the minimum guarantee of legal assistance. Attention is drawn to the fact that the European Convention itself does not define the mechanism of its application, which in turn complicates its application by different states with certain differences in legal systems. In this regard, it is substantiated that by ruling on the application of the European Convention, the European Court of Human Rights (ECHR) sets the direction for building one of the most effective systems of human rights protection, which is subsequently manifested in the national systems of the Convention member states. In view of this, the article analyses the most important, key and modern practice of the ECHR in relation to consideration of applications for violation of the minimum guarantee of legal assistance in the context of violation of the right to a fair trial and summarises it, as well as identifies the risks of such an approach. In addition, the paper analyses the current conceptual vision of such transformations from the point of view of legal scholars, both academics and practitioners. In the course of analysis of modern ECHR judgments, the author found that in a significant number of them the Court indicates that the mere violation of the minimum guarantee of legal assistance does not automatically mean a violation of the right to a fair trial, and the author emphasizes the possible risks of such an interpretation, in particular, for the States which are leaders in violation of the guarantee of legal assistance, where the specifics of national systems reflect a systematic violation of this right. It is determined that the application of the minimum guarantee of legal assistance is not limited to criminal proceedings, and the court is not the only institution that must comply with this guarantee to ensure fairness of the proceedings. It is also emphasised that the practice of applying this guarantee cannot be limited to court proceedings only. The author also suggests improving the legal technique of implementing the European Convention into national legislation by amending its translation into Ukrainian.

How Should the European Court of Human Rights Remedy Violations of Article 18 echr? The Case for Remedial Realignment

Abstract This article assesses whether the European Court of Human Right’s (Court) remedial reasoning in Article 18 European Convention on Human Rights (Convention) judgments coheres with the Court’s merits-based reasoning finding a violation of this particular provision. Article 18 violations have come to highlight structural problems in state parties, most notably complicity from domestic judiciaries and/or state prosecutors in state efforts to restrict Convention rights for anti-democratic ulterior purposes. The article finds that this substantive feature of Article 18 violations does not generally extend to the Court’s approach to formulating remedies and that the Article 18 violation judgments evidence the same remedial oversight generally present in the Court’s broader case law. The article argues, however, that the Court’s remedial approach in Article 18 violation judgments should be highly prescriptive and specific in respect of both individual and general measures on account of the reality that Article 18 serves both individual and constitutional justice and engages the positive dimension of subsidiarity.

Honor Killings in Traditional Societies: Revisiting the Case of Türkiye After Istanbul Convention Withdrawal

This research delves into the complex dynamics of honor and honor killings in traditional societies, with a specific focus on Türkiye, which has a Muslim-majority population and secular-democratic politico-legal system. It sheds light on the cultural and societal frameworks that reinforce honor, particularly in the context of gender relations and familial reputation. Using a qualitative methodology, the study analyzes the case of Türkiye, with a significant emphasis on the controversial withdrawal from the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, also known as the Istanbul Convention. Examining discussions in the parliament, legal documents, and secondary sources, such as research reports, supports the case study. The findings reveal a complicated interplay between traditional perceptions of honor, legal inadequacies, and societal attitudes that perpetuate violence against women. The study argues that while legislative reforms have been implemented, cultural and societal norms continue to pose significant challenges to their effectiveness. The conclusion underscores the urgent need for a multifaceted approach, incorporating legal, educational, and societal strategies to dismantle the cultural norms that condone honor-related violence. This article contributes to the discourse on gender-based violence, advocating for a comprehensive understanding and action to address honor killings in Türkiye and beyond.