European Court Of Human Rights Case Research Articles

ECTHR case law on legal liability for offences in the field of environmental protection environment

Pursuant to Article 55 of the Constitution of Ukraine, everyone has the right, after exhausting all national legal remedies, to apply for protection of their rights and freedoms to the relevant international judicial institutions or international organisations of which Ukraine is a member or participant [1]. One of such organisations is the European Court of Human Rights (ECTHR), which decides on the establishment of violations of human rights enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms (CCHR). Given that Ukraine has recognised the jurisdiction of the ECTHR and the principle of extending its judgments to third states that are not parties to the case, we consider the study of the Court’s case law to be a necessity for the member states.
 This article analyses the ECTHR case law on legal liability for environmental offences. Based on the results of the study, it is found that the peculiarity of the ECTHR judgments in cases concerning environmental offences is the absence of direct enshrining of “environmental” rights in the Convention, and the establishment of the components of such offences by interpreting the existing rules in each individual case.

The discretion of the EU Member States in shaping the non-conviction based confiscation regime in the light of CJEU and ECHR case law

The research presented in the article aims to assess the scope of the normative freedom of EU Member States when implementing non-conviction based confiscation. This study was based on the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECHR). The study shows that despite the broad discretion of the Member States resulting from the position of the CJEU, domestic regulation of this type of confiscation falls outside the scope of EU law; the extensive jurisprudence of the ECHR sets quite precise boundaries concerning the concept of confiscation without prior conviction. Thus, it limits the discretion of Member States in this regard, providing both safeguards for individuals and guidelines for national legislators that intend to develop non-conviction based confiscation regimes in their domestic legal system.

Peculiarities of Labour Rights Protection in the Case Law of the European Court of Human Rights

The practice of defence of labour disputes is quite dynamic. That is why the analysis of labour rights protection in the European Court of Human Rights (ECtHR) is quite relevant. The purpose of the study is to analyse the current case law of the European Court of Human Rights on the protection of labour rights; to analyse the ECtHR's interpretation of the concept of forced labour and the right to form trade unions; to summarise the problematic issues of the ECtHR's case law in the field of labour rights protection and ways to resolve them. The methodological basis of the study is general and special methods and techniques of cognition. The article substantiates that one cannot complain directly to the ECtHR about deprivation of the opportunity to work, denial of access to the workplace, or refusal to hire. The European Convention explicitly states only 2 rights: the right to form and join trade unions and the prohibition of forced and compulsory labour. The author explains the concepts of forced labour and the right to form trade unions and outlines the problematic issues of the European Court of Human Rights case law in the field of labour rights protection and ways to resolve them.

Misunderstanding the margin? The reception of the ECtHR’s margin of appreciation at the national level

Abstract This exploratory article focuses on the receiving end of the margin of appreciation doctrine of the European Court of Human Rights (ECtHR), that is to say, the response of national-level legislators and courts to ECtHR case law involving other states parties, that grants national authorities a wide margin of appreciation. The paper explores the risk that national authorities might misinterpret the margin of appreciation in such cases as a marker of human rights clearance of a rights-restrictive practice as such or as a prompt for domestic courts toward deference in their relationship with the legislative and executive powers. The paper finds anecdotal evidence of such misinterpretation by domestic legislators in the reception of SAS v. France. In addition, an examination of recent fundamental rights case law of the Belgian Constitutional Court illustrates the existence of a problem of misunderstanding the margin of appreciation at the level of domestic courts.

Beyond Crisis: Understandings of Vulnerability and Its Consequences in Relation to Intimate Partner Violence

This article takes a closer look at intimate partner violence (IPV) and its semantical, political, and legal interactions with crisis and crisis discourse. Starting from the fact that IPV has been called a “shadow pandemic” and a “hidden crisis”, the article conceptualizes two parallel phenomena: how the COVID-19 pandemic — and crises in general — impact on IPV by exacerbating vulnerabilities and how crisis discourse has been mobilized to argue for a responsive state and strong positive obligations to combat and reduce IPV. The article then draws a parallel between crisis discourse and vulnerability reasoning, analyzing how vulnerability has played a similar role within the case law of the European Court of Human Rights (ECtHR) and led the latter to develop a consistent strand of case law concretizing states’ positive obligations. The article also takes a critical stance, examining the risks of crisis discourse and vulnerability when viewed through a crisis lens. To counter these risks, it argues for a nuanced, structural, and dynamic understanding of vulnerability and a focus on resilience-building institutions and mechanisms. Within the ECtHR case law, this signifies elaborating upon the already existing positive obligations, including by taking inspiration from the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). Such an approach is necessary to leave behind the emergency time usually associated with crises and work toward lasting structural change.

Gender Inequality in Social Security on the Basis of the ECtHR Case-Law

As the European case-law shows, nowadays, there are numerous problems in the social sphere. Accordingly, there appears to be a need to study international regulation of equality and current social security problems to find possible solutions to the existing shortcomings and to strengthen human rights protection. The article aims to analyse the universal international regulation of equality and gender equality, in particular, and to study the problems of gender inequality in social security based on the European Court of Human Rights (ECtHR) case law to eliminate this discrimination. The leading research method is a legalistic one. It allowed us to analyse the international legislation on gender equality and to look into the ECtHR case law in gender discrimination in social security. It was found that gender inequality in social security is often a result of prior gender-based discrimination in labour relations. Despite the fact that legal acts protect women in cases of inequality, the analysis of the ECtHR case-law permitted us to conclude that men suffer from gender discrimination as much as women. Therefore, it is suggested to adopt legal acts on the equality of men and women in social security to overcome such discriminative practices at the legislative level. It is also recommended to implement the governmental policy on counteracting gender stereotypes in society. The research results can improve national legislation and international legal acts, further research into equality issues, and develop a methodological base for teaching human rights and social security.

Territorial Tort Exception? The Ukrainian Supreme Court Held that the Russian Federation Could Not Plead Immunity with regard to Tort Claims Brought by the Victims of the Russia-Ukraine War

The jurisdictional immunity of a state means that the state cannot be involved as a defendant in a case considered by a foreign court. In Ukraine, the rule on the jurisdictional immunity of a foreign state is enshrined in Art. 79 of the Law of Ukraine ‘On Private International Law’. Until 14 April 2022, the Ukrainian Supreme Court rigidly applied the provisions of the said article and recognised the Russian Federation’s immunity with regard to claims brought by Ukrainian citizens seeking compensation for harm caused by the armed conflict that commenced in 2014. Yet shortly after 24 February 2022, when Russia’s aggression against Ukraine entered a new phase, i.e., the phase of full-scale war, the Supreme Court changed its mind. This note addresses the ruling of the Ukrainian Supreme Court of 14 April 2022 in case no. 308/9708/19, where the Court held that the Russian Federation could not plead immunity with regard to tort claims brought by the victims of the Russia-Ukraine war. In reaching this conclusion, the Court relied on the territorial tort exception enshrined in the European Convention on State Immunity (Basel, 16 May 1972) and the UN Convention on Jurisdictional Immunities of States and Their Property. Though neither of the two conventions has been ratified by either Ukraine or the Russian Federation, the Court found that these conventions indicate a general tendency in international customary law towards limiting the jurisdictional immunity of the states. The reasoning of the Supreme Court is examined by scrutinising the authorities the Court adduced in support of its ruling, as well as by putting the ruling in the broader context of the jurisprudence of the International Court of Justice (ICJ) and European Court of Human Rights (ECtHR). It is concluded that what the Supreme Court utilised is not the territorial tort exception but rather the ‘human rights/jus cogens’ exception. Further, the case before the Ukrainian Supreme Court is distinguishable from the ICJ and the ECtHR cases, where it was held that notwithstanding gross violations of human rights, the respondent state should nevertheless enjoy immunity. Unlike those cases, the Ukrainian case was tried amid the ongoing war, when no reparation agreements had been concluded, the legitimate aim of ‘promoting comity and good relations between states’ had been frustrated, and it was no longer possible to justify the restriction of the plaintiff’s right of access to a fair trial.

European Court of Human Rights’ judgements and compulsory religious education in Turkey

ABSTRACT Turkey is the only country that has twice lost cases concerning the violation of parents’ freedom to ensure their children an education in conformity with their own religious and philosophical convictions at the European Court of Human Rights (ECtHR). This article firstly seeks to present these court cases. It then moves to the official responses to these cases, especially the curriculum and textbook reforms. The article then discusses some possible ways of reforming compulsory religious education course in Turkey, taking into account the ECtHR judgements and the Turkish laws, as well as the arguments of the government and the applicants in the ECtHR cases, as we believe, a balance needs to be found to achieve a workable solution

Actual problems of the non-pecuniary damages’ assessment by the European Court of Human Rights

The article is devoted to the awarding of non-pecuniary damages in the European Court of Human Rights (ECHR) practice. The problem of research arises from the lack of criteria that the Court uses for calculating non-pecuniary damages which leads to unfair compensation for the injured party. The article examines ECHR cases and investigates how the Court has substantiated the precondition for a claim for compensation of non-pecuniary damage of a person. The grounds and circumstances which influence the amount of non-pecuniary damages are analyzed. The research proposes to define and introduce a list of criteria based on individual features of a person in recommendations on which ECHR should pay attention in non-pecuniary damages assessment to provide fair compensation to the victim which can help to create transparent mechanism for assessment in its practice

Beyond Expansion or Restriction? Models of Interaction between the Living Instrument and Margin of Appreciation Doctrines and the Scope of the echr

Abstract The living instrument doctrine of the European Court of Human Rights (ECtHR) is criticised as restricting the margin of appreciation of States and expanding the scope of the European Convention on Human Rights (echr). Systematic examination of this claim is usually overlooked in the context of the relationship between the admissibility and merits phase of ECtHR cases. This article considers this claim in the context of jurisdictional arguments on incompatibility ratione materiae (subject matter outside the scope of the Convention) and the link to the merits of the case. Case law of the ECtHR from January 1979 to December 2016 is assessed to elaborate four models of interaction between the margin of appreciation and living instrument doctrines. The article argues the need to go beyond consideration of expansion and restriction of the scope of the echr, and to assess the Court’s appetite for allocating new duties to States based upon the case arguments and positioning of living instrument and margin of appreciation doctrines.

The 'Disobedience' of Journalists at Public Assemblies: An Analytical Critique of the ECtHR's Case Law from a Media Freedom Perspective

In a group of cases in which journalists refused dispersal orders at public assemblies, the European Court of Human Rights (ECtHR) found that certain governmental actions interfered with freedom of expression. Based on a comparative analysis that provides an analytical critique and new insights in the field of media freedom, this article argues that the application of the ‘strict scrutiny’ perspective could be improved by including a closer look at the risk assessments made by the domestic authorities. The analysis delves into the development of the ECtHR’s case law and highlights the potential problems in guaranteeing protection under Article 10 of the European Convention on Human Rights (ECHR), especially considering the consequences of the approach taken in the Pentikainen Grand Chamber judgment.

Is There a Special Enforced Tax Collection Regime Under the ECtHR Case Law?

This article examines the extent to which the European Court of Human Rights (ECtHR) takes into account the privileged nature of tax claims in enforced collection proceedings. Conducted within the framework of the right to property, the aim is to find a response to this question: Does the ECtHR case law allow for a special regime in enforced debt collection proceedings? A definitive answer to such a question requires a comparison between Court judgments on tax debts and non-tax debts. Under both the lawfulness and legitimate aims tests, no distinction appears between these two types of debt. On the other hand, under the proportionality test, the Court generally grants a wide margin of appreciation to States Parties. In this respect, two different dimensions are encountered, namely, the tax collector versus tax debtor and the tax collector versus other creditors. While the ECtHR does not allow differences between the collection regimes of non-tax debts in the former relationship, it appears that in the latter, the Court maintains the privileged status granted to the tax collector in domestic law. However, this privileged status is not unique to tax debts. Therefore, the article concludes that there is no special status for the tax debt enforcement regime under a comparison with non-tax debts. Tax information reporting, Digital platform, Sharing economy, Gig economy, OECD, European Commission

The ‘Disobedience’ of Journalists at Public Assemblies: An Analytical Critique of the ECtHR's Case Law from a Media Freedom Perspective

ABSTRACT In a group of cases in which journalists refused dispersal orders at public assemblies in order to gather news, the European Court of Human Rights (ECtHR) has found certain governmental actions to have interfered with freedom of expression. Based on a doctrinal and conceptual comparative analysis, this article argues that the application of the ‘strict scrutiny’ perspective, repeated throughout several of these cases, could be improved by including a closer look at the risk assessments made by the domestic authorities in relation to the dispersal orders by the police. It provides an analytical critique and new insights in the field of media freedom. The analysis delves into the development of the ECtHR's case law and highlights the potential problems in guaranteeing protection under Article 10 of the European Convention on Human Rights (ECHR), especially considering the consequences of the approach taken in the Pentikäinen Grand Chamber judgment.

‘Full Jurisdiction’ Under Article 6 ECHR: Hans Kelsen v. the Principle of Separation of Powers

This article examines the ‘full jurisdiction’ requirement under Article 6 European Convention on Human Rights (ECHR) and its implementation within European Court of Human Rights (ECtHR) case law. It first analyses the theoretical foundations for ‘full jurisdiction’ which implies, in principle, a substitutive review of the merits of administrative decisions. It then focuses on the ECtHR case law, highlighting its ambivalence and inconsistencies: while the Court generally requires a substitutive review in criminal cases and in cases involving complex technical assessments, it tends to accept a less exacting standard of review in civil cases, especially when administrative discretionary choices or policy determinations are at issue. This article suggests that the ambivalence and inconsistencies within ECtHR case law can be explained in terms of the principle of separation of powers, which still underpins most legal systems of signatory states to the ECHR. Art. 6 ECHR, fair trial, administrative procedures, full jurisdiction, principle of separation of powers.

Pravo na privatnost iz člana 8 Evropske konvencije o ljudskim pravima i legalnost mera epidemiološkog praćenja radi suzbijanja pandemije virusa Kovid 19

In this paper, the author analyzes the protection of the right to privacy under Article 8 of the European Convention on Human Rights (ECHR) at the time of the Covid-19 virus pandemic. At the beginning of the pandemic, European countries had a large number of infected people and some countries encountered a collapse of their health systems. As the situation was beyond control, it raises the question whether such a situation was caused by the non-implementation of epidemiological monitoring measures, which is comparable to the extent and manner of implementing these measures in the Far East; namely, the question is whether the democratic system remained unprotected due to the EU countries' observance of democratic human rights standards, specifically the right to privacy. Given that epidemiological monitoring measures are currently the most important instrument for combating the Covid-19 virus pandemic, European countries have to fulfill the condition of legality in implementing these measures, which interfere with the citizens' right to privacy. In that context, the author explores the case law of the European Court of Human Rights (ECtHR), which ensures judicial protection of the rights guaranteed by the Convention (including the right to private life), focuses on the definition of the concept of the right to privacy, and examines whether epidemiological monitoring measures fall into the corpus of privacy rights. Relying on a detailed analysis of the ECtHR case law, the author points to the specific requirements that must be met in order for the epidemiological monitoring measures to be considered legal.

Exploring the penumbra of punishment under the ECHR

Administrative sanctions can be said to dwell in the periphery of punishment because they do not require setting the wheels of criminal procedure in motion. This allows States to save public resources as well as helps them to escape closer scrutiny at the judicial level. At the same time, the imposition of administrative sanctions usually curtails individual guarantees. Against this background, this article examines where the European Court of Human Rights (ECtHR) draws the line between measures belonging to the ‘hard core of criminal law’ and the periphery. After a presentation of gradual broadening of the ‘criminal limb’ guarantees of Article 6 European Convention on Human Rights to administrative measure of a punitive nature, it explores where do these guarantees meet their limits by taking the approach adopted in the landmark Jussila judgment as a point of departure. Subsequently, a structured analysis of the selected ECtHR case law in which this approach has been applied or – at least – invoked is provided. The article is finished with a reflection on the current interpretation of the said penumbra of punishment, which, among other things, identifies the possible gaps of individual protection, and the outlook for the future.

Reassessment of the Ireland v. the United Kingdom ECtHR case: A lost opportunity to clarify the distinction between torture and ill-treatment.

In the 1978 Ireland v. the United Kingdom case, the European Court of Human Rights (ECtHR) did not consider that the so called "five techniques" caused enough severity to be considered torture. The intentionality criterion, outlined in the Convention against Torture's definition of torture, was also not fully considered. The Istanbul Protocol, which is critical for evidencing torture, did not exist at that time. Although a re-opening of the case was requested in 2014 by Ireland, forensic documentation using the Istanbul Protocol was not used; in 2018, the ECtHR decided against re-opening the case. By using the Ireland v. The United Kingdom case, this paper aims to map the origins of the five techniques, review whether applying them constitutes torture, analyze the information about the claimants available 30 years later, and explore the ramifications of the ECtHR decision not to revise its judgment. Relevant texts were gathered from the HUDOC database, Cambridge University Press, Wiley Online Library, SCOPUS and MEDLINE /PubMed, and the Library of the ECtHR in Strasbourg. The five techniques, elaborated upon in the case of Ireland v. the United Kingdom, were used well before the incidents in Northern Ireland in 1971 and there is evidence that United Kingdom officials have, subsequently, used the techniques. Furthermore, there is clear evidence that the "Hooded Men" had cognitive, psychological and neurovegetative symptoms as a result of the five techniques, which had long-term effects. The ECtHR did not take this into consideration when it decided not to re-open the case and the full implications of this decision for future cases and victims remain to be seen.

Commons as possessions: The path to protection of the commons in the ECHR system

AbstractThe ‘commons’ is not mentioned in the texts of the European Convention on Human Rights (ECHR) or Article 1 of Protocol No. 1 (P‐1). This essay argues that ‘possessions’ — which does appear in the latter — should be interpreted by the European Court of Human Rights (ECtHR) to protect commons against national governments' undue interferences. The argument comprises two parts. First, we analyse the polysemic term ‘possessions’ to show how the current understanding of this category is marred by flawed assumptions and by false dichotomies. Then, we propose an ‘ecological’ construction of legal relationships between subjects and objects. We find support in the ECtHR case law on Article 8. We argue this approach should be extended to Article 1 P‐1: once disentangled from possessive individualism and market paradigms, ‘possessions’ encompass the commons and the category offers a solid legal basis toward the justiciability in Strasbourg of privatisations.

Approaches of the European Court of Human Rights on the right to freedom of peaceful assembly

This article is dedicated to European Court of Human Rights (ECHR) case law on freedom of peaceful assemblies. The author analyzes the circumstances in which the ECHR may admit that the state interferes with the right to peaceful assembles and whether this interference is legitimate from the prospective of European Convention.According to the ECHR case law, either act or nonfeasance of general or individual character taken before, during, or after the peaceful assembly could be considered as an interference in the right to peaceful assemble even if such actions had no apparent effect on the actual conduct of peaceful assembly, or formally legally not related to its consequences. The interference may also be recognized when the authorities take no necessary actions related to conduction of peaceful assembly in cases where such actions could be reasonably expected.In order to verify that the interference with the right to freedom of peaceful assembly meets the conditions of the Convention, the Court uses the special three-part test. The interference does not violate the Convention if it is prescribed by the law, has at least one legitimate aim, and is necessary in the democratic society.As to the first requirement, the general practice of the ECHR is used. The restriction on peaceful assembly would be considered as prescribed by the law if the law is accessible and sufficiently precise to enable the citizen to foresee the consequences of his or her behavior, whether lawful or not.It is very hard for applicant to prove that the restriction of the right to freedom of peaceful assembly does not pursue one of the legitimate aims of the Convention. The ECHR in most cases does not question the reference of the state to one of the legitimate aims under the Conventions. The only possible way for the applicant to prove that the restriction does not pursue one of the legitimate aims is to provide Court with the strong evidence that the reference given by the state is purely formal and another hidden aim exists that is not prescribed by the Convention.Interference with the freedom of peaceful assembly must also meet the criteria of necessity in a democratic society. In practice, this means, first of all, that the state should demonstrate a sufficient degree of tolerance for peaceful gatherings, proportionally balance the interests of the members of the assemblies and those who do not participate in them, and be ready to fulfill the positive responsibilities of the state during the peaceful gatherings.Article received 02.11.2018

In-between the Constitution and the European Court of Human Rights: Mobilizations Around Religion and Education in Greece

AbstractThis paper examines the impact of European Court of Human Rights (ECtHR) decisions on the field of religion and education in Greece around the issues of the content and objectives of religious education, the exemption thereof, and religious symbols in school. The findings indicate that despite the relevance of ECtHR case law with the specific field in Greece, the Court's role in influencing such national debates is minimal. Drawing on empirical research and discourse analysis, the paper argues that this is due to the doctrine of the margin of appreciation, apparently linked to strategic references to and varying interpretations of the Court's judgments; the unwillingness of actors to litigate in a potentially sensitive, lengthy, and costly procedure; and to a shared belief in the perceived primacy of constitutional provisions on religion and education that precludes the formation of structured mobilizations.