European Court Of Human Rights Research Articles

Civilizational Hierarchies and the Notion of ‘Europe’ in the European Convention on Human Rights

Abstract When the European Convention on Human Rights was adopted, several states parties were major colonial powers forcefully engaged in retaining that position. This article aims to demonstrate the continued importance of this constellation for European human rights law. Using the convention’s travaux préparatoires as a starting point, it identifies civilizational hierarchies between Europe and other regions as foundational to the European project of human rights. The article then traces how the notion of ‘Europe’ has served as a conduit for these hierarchies to persist in less explicitly racialized form, using two examples: first, that of territorial and extraterritorial applicability and, second, the interpretation of the convention by the European Court of Human Rights based on the margin of appreciation and European consensus. Colonial continuities in the form of civilizational hierarchies, as this article thus aims to show, are not only relevant for specific topics like post-colonial migration but also continue to shape the project of European human rights as a whole.

ISLAM, JUSTICE AND PREJUDICE: RETHINKING THE EUROPEAN COURT OF HUMAN RIGHTS’ APPROACH TO RELIGIOUS SYMBOLS

The European Court of Human Rights (ECtHR) has been criticized on the grounds that its approach to religious symbols is shaped not by fundamental rights and freedoms, but by subjective biases. Despite being bound by the European Convention on Human Rights (ECHR) and universal legal norms, it has been observed that in cases involving Islam, the ECtHR invokes abstract and culturally loaded concepts such as “European cultural heritage,” “shared past and future vision,” “active and passive object,” and “fragility.” As a result of this selective approach, religious symbols associated with Islam have been disproportionately restricted and a biased attitude has been exhibited by the Court. The analysis of relevant cases reveals a departure from the principle of proportionality in ECtHR judgments, along with a weakening of the principles of justice and impartiality. Through these controversial rulings, it is concluded that an approach potentially associated with Islamophobia has been adopted, and that the Court has been transformed into an institution shaped by cultural and societal prejudices, drifting away from universal legal standards.

Decriminalizing same-sex sexual activity: Jurisprudence from the Global South

Abstract This article contends that the Global South’s jurisprudence on decriminalizing same-sex sexual intimacy has distinctive features that are missing from the Global North’s jurisprudence. In this article, I examine decriminalization cases from courts in Belize, Botswana, India, Fiji, South Africa, and Trinidad and Tobago, as well as cases from the Eastern Caribbean Supreme Court and the Inter-American Commission on Human Rights. I juxtapose these cases with canonical cases from the Global North—namely, cases from the United States and the European Court of Human Rights (ECtHR). This analysis reveals four distinctive features of the Global South’s jurisprudence. First, many of the Global South’s judicial opinions traced sodomy bans to their colonial origins and framed their repudiation of the bans as an act of anticolonialism. Second, compared with cases from the United States and the ECtHR, the Global South’s cases often identified a broader set of rights violations. The ECtHR and US decisions were based on rights to privacy or liberty. In contrast, many of the Global South’s judgments went further, expounding on why sodomy bans violate other rights, including rights to health, substantive equality, and freedom of expression. Third, certain Global South cases innovated the notion of “constitutional morality” in adjudication. Fourth, compared with the cases from the United States and the ECtHR, many of the Global South’s judgments spoke more emphatically about protecting sexual minorities out of a respect for difference and pluralism. This article discusses these jurisprudential innovations’ significance to ongoing debates and future research concerning LGBTQ rights.

Litigating Industrial Air Pollution in The Netherlands: The Impact of The European Court of Human Rights

This article will focus on how the development of the European Human Rights Convention (ECHR) by the European Court of Human Rights (ECtHR) prompted Dutch environmental movements and citizens to rely on the ECHR to reduce industrial air pollution. It will further examine the decisive role of human rights in legal proceedings concerning industrial air pollution between environmental movements and affected individuals and the State and/or business entities. The impact of the developing case law by the ECtHR on Dutch cases such as the Air Quality cases, the Urgenda case and the Shell cases will be considered. This article will consider the effects of changing public opinion and scientific developments to understand the changing role of the ECHR in the Netherlands.

A Fresh Look at Margin of Appreciation Through Climate Cases

Abstract This contribution examines how the European Court of Human Rights (Court) should apply the margin of appreciation in climate mitigation cases concerning the substantive determination of states’ national emissions reductions. The analysis reflects on the rationale underlying the margin of appreciation doctrine and its application by the Court in environmental matters. This paper argues that in view of the failure of national authorities due to their self-interest to effectively protect human rights in the face of climate change, the justifications for allowing a broad margin in environmental cases do not apply to the transnational problem of climate change. The article concludes that while decisions regarding the temperature target should afford no margin, and determinations of the ‘fair share’ of national emissions reductions allow only a narrow margin, decisions concerning the choice of specific mitigation pathways should involve a relatively broad margin.

Balance Between Public Interests and Human Rights in the Context of Applying Pro Rata Principle

The purpose of the article is to analyze pro rata principle as universal legal mechanism for ensuring the balance between public interests and human rights, in particular in crisis situations. The conceptual aspects of pro rata principle, its essence, place in the legal system of Ukraine and international law have been studied. Methodology of the research is based on the systematic, comparative and legal, as well as functional approaches that assisted to assess the efficiency of applying pro rata principle while ensuring human rights, as well as to carry out empiric analysis of Ukrainian courts’ decisions and judgements of the European Court of Human Rights. The main conclusions of the research are determination of the role of pro rata principle in legal precedents, in particular in the context of regulating such restrictions of human rights as ensuring security, territorial integrity, state sovereignty and repelling armed aggression. The importance of integrating this principle into the national legal system, taking into account international standards, has been emphasized. The practical significance of the research is to formulate suggestions for improving national legislation and judicial practice in ensuring a fair balance between the interests of the state and human rights.

Umowny zakaz ujawnienia wynagrodzenia a swoboda wypowiedzi – glosa częściowo krytyczna do wyroku Europejskiego Trybunału Praw Człowieka z 20 czerwca 2024 r., skarga 4110/20, Boronyák przeciwko Węgrom

The judgment of the European Court of Human Rights (ECtHR) under review is noteworthy for its clear emphasis on the primacy of a contractual obligation to respect the confidentiality of trade secrets regarding remuneration, overriding the freedom of expression and even the right to access public information. The most interesting aspect of the judgment lies in the ECtHR’s search for justification to allow the exclusion of freedom of expression in a civil contract concerning the disclosure of salary information, drawing an analogy to the obligations of an employee under an employment relationship. The ECtHR’s reasoning that voluntary submission to the terms of a civil contract is similar to an employee’s subordination, who is, by default, prohibited from disclosing their salary, is flawed. Although the final conclusion of the ECtHR is correct (the contractual obligation to protect trade secrets in relation to salary does not violate Article 10 (2) of the Convention), the reasoning behind it raises concerns. It is necessary to consider the legal system of the Council of Europe, which allows employees to disclose their remuneration, despite the formal limitation of the ECtHR’s jurisdiction to the Convention. Salary transparency serves as a tool supporting the principle of equal pay established in the European Social Charter. Therefore, the permissibility of contractual restrictions on freedom of expression lies not in the similarity to the employment relationship but in the need to protect property (trade secrets) and the possibility of self-restraint by the parties to the agreement. In this respect, the ECtHR’s emphasis on the lack of primacy of the public right to information over a contractual non-disclosure agreement is commendable, provided that access to public information can be obtained by other entities.

Protecting trafficked migrants under European law: Equality of treatment versus minimum standards

International anti-trafficking laws are frequently characterised as embodying a tension between immigration control and victim protection. However, the literature to date has focused overwhelmingly on the articulation of this relationship at the external borders of the state, addressing the limited possibilities foreseen for victims to remain in the territory of the country in which they have been identified. The present contribution adopts a different perspective, exploring how this tension manifests itself in the differential treatment of victims within the state. Through an analysis of the Council of Europe Anti-Trafficking Convention, I illustrate how entitlements to receive protection and support are distinguished according to whether victims are ‘lawfully resident’ within the territory, arguing that this approach is motivated not only by broader immigration concerns, but also by specific regime interests related to the effective enforcement of criminal laws. At the same time, I consider whether there are limits to the permissible scope of differential treatment. Here, I suggest that the jurisprudence of the European Court of Human Rights can provide important guarantees for trafficked migrants through the recognition of minimum standards of protection that apply regardless of victims’ immigration status or potential contribution to criminal proceedings.

States’ Extraterritorial Jurisdiction in Relation to ghg Emissions After Duarte Agostinho v Portugal

Abstract Greenhouse gas (ghg) emissions drive climate change and the harms it causes. Extraterritorial human rights obligations to curb ghg emissions are difficult to establish in the European Convention on Human Rights because the European Court of Human Rights (ECtHR) conceptualises jurisdiction as control over rights holders, which is in tension with the diffuse and collective nature of ghg emissions and how they cause climate change. This article first frames the problem and this tension. Second, it outlines the decision in Duarte Agostinho v Portugal to illustrate how the ECtHR emphasised the role of jurisdiction in establishing obligations. Third, it considers justifications for the ECtHR’s decision and argues that the most coherent ones concern the nature of positive obligations and the exhaustion of domestic remedies. Finally, the article argues that the chosen approach means that the echr will contribute little to facilitating climate justice – unless its assumptions are rethought.

Is the ECtHR Supporting a Journalistic Colonization of Other Fields? On the Application of the ‘Ethics of Journalism’

ABSTRACT This article examines one of the criteria that the European Court of Human Rights (ECtHR) emphasizes in cases concerning the balance between European Convention on Human Rights articles 8 (right to private life) and 10 (right to freedom of expression): that journalists must act ‘in accordance with the ethics of journalism’. The first research question in the article concerns to whom this obligation applies. Who is a journalist and must therefore follow the ‘ethics of journalism’ today? The authors show that the ECtHR operates with a functional and relatively wide understanding of journalism and who is a journalist. This gives a relatively wide application of the obligation to follow the ‘ethics of journalism’. The second research question therefore concerns which arguments can be raised against such a wide understanding of journalism and application of the ‘ethics of journalism’. The authors use non-fiction as an example of a field where it can be difficult to decide which actors must follow that ethics. By analysing case law from the ECtHR and Norwegian courts, as well as the debates following these cases, the authors seek to illustrate the challenges of applying the ‘ethics of journalism’ to a wide range of actors.

CIVIL PROCEDURE AND ECTHR JURISPRUDENCE: ECONOMIC IMPLICATIONS AND AZERBAIJAN’S EXPERIENCE

This article examines the economic implications of European Court of Human Rights (ECtHR) jurisprudence on civil procedural law, focusing on Azerbaijan as a case study. The study explores how ECtHR decisions have influenced legislative reforms and judicial practice in Azerbaijan, and analyzes the effects on economic efficiency, investment attractiveness, financial costs, and the stability of the legal framework. Since joining the Council of Europe and adopting the European Convention on Human Rights (ECHR), Azerbaijan has undertaken numerous judicial reforms to align its civil procedure with European standards. These efforts have focused on reducing case backlogs, ensuring the timely enforcement of court decisions, and enhancing judicial independence, all of which have a direct impact on the country's business environment. The study reviews significant ECtHR cases involving Azerbaijan, evaluates reform measures (such as the introduction of specialised commercial courts, simplified proceedings for minor claims, and alternative dispute resolution mechanisms), and discusses their economic impacts. The findings indicate that while reforms inspired by ECtHR principles have improved Azerbaijan's judicial efficiency and international image (as reflected in improved ease-of-doing-business rankings), challenges such as inconsistent application of ECtHR case law, corruption, and incomplete implementation of judgments continue to undermine the full economic benefits. It is therefore essential for the country to pursue further harmonisation with ECtHR standards and strengthening the rule of law if it is to enhance investor confidence and sustainable economic development.

The Legal Basis for the Use of Firearms by the Police of the Republic of Kosovo:

This study examines the legal standards and practices regarding the use of force by the police in Kosovo, Albania, and selected European Union countries. By analyzing national regulations and the jurisprudence of the European Court of Human Rights, the study emphasizes the importance of the principles of necessity and proportionality in the use of firearms by law enforcement authorities. Through a comparative analysis, key challenges and opportunities for harmonizing the legal framework with international standards are identified. The study provides concrete recommendations for improving police training, strengthening oversight mechanisms, and enhancing transparency in law enforcement while ensuring the protection of human rights and freedoms. Ultimately, it aims to contribute to the academic and professional debate on balancing public security and human rights by promoting reforms for a more effective and accountable approach in this field. In conclusion, this study seeks to contribute to academic and professional discussions on the need for a clear and harmonized legal framework for the strict use of firearms by the police, ensuring a balance between security and human rights

Analysis of the decisions of the European Court of Human Rights on real estate

Analysis of the decisions of the European Court of Human Rights on real estate

Interaction between the European Court of Human Rights and the Court of Justice of the EU: on the example of the law and order of Belgium

As of today, the European Union and the Council of Europe play a key role in establishing standards for human rights protection. The European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) share a common fundamental goal – the protection of human rights. While they occasionally refer to each other’s case law, resulting in «mutual cross-fertilization», a closer analysis reveals significant differences between these institutions. Among the 46 member states of the Council of Europe, 27 are part of the European Union, granting their citizens access to the protection of their rights within both judicial systems. This article examines the interaction between the ECtHR and the CJEU within the context of Belgium’s legal system. The author analyzes the impact of these two key judicial institutions on the development of national legislation and jurisprudence in Belgium, with a focus on harmonizing European and national legal standards. Particular attention is given to the mechanisms of jurisdictional interplay between The ECtHR and the CJEU and their influence on ensuring human rights protection in Belgium’s multi-layered legal system. The article explores the historical aspects of Belgium’s integration into the EU legal order, notably the landmark decision of the Court of Cassation in Le Ski (1971), which marked a turning point in recognizing the supremacy of EU law over national legislation. It also addresses the principles of equivalence and effectiveness introduced by the CJEU to unify procedural norms across member states. Additionally, the relationship between EU law and the European Convention on Human Rights (ECHR) is discussed, as well as the role of the «margin of appreciation» doctrine in balancing international obligations with national legal autonomy. The scientific novelty lies in analyzing the modern practice of judicial dialogue between the ECtHR and the CJEU and examining its influence on legal processes in Belgium. The author concludes that the synergy between the jurisdictions of the ECtHR and the CJEU strengthens human rights protection in EU member states, although challenges related to legal autonomy and norm interpretation persist.

The role of the principle of proportionality when restricting constitutional rights and freedoms of man and citizen in Ukraine: problems of theory and practice

It is indicated that in the realities that have formed in our country in recent years, compliance with the principle of the rule of law, in particular its element of proportionality, is gaining increasing relevance. Cases of restriction of human rights are increasingly encountered in social and legal relations, therefore, studying the role of the principle of proportionality in the restriction of constitutional rights and freedoms of man and citizen in Ukraine is currently an urgent necessity. In particular, questions arise regarding the legality and expediency of restrictions on human and citizen rights during martial law, when the interests of the state have a higher priority than the interests of an individual. Therefore, the problem of improving the legislative regulation of the principle of proportionality is important, which will allow for effective protection of human rights and maintaining a balance between individual rights and public interests, in particular in emergency situations. The article analyzes proportionality as an important element of the principle of the rule of law in the context of constitutional law. The focus is on the indispensability of this principle in the sphere of restriction of human rights in Ukraine in modern conditions. Separately, the historical development of the principle of proportionality, the concepts associated with it, its consolidation in international practice, in particular in the decisions of the European Court of Human Rights, as well as its use in Ukrainian judicial practice, in particular in conditions of martial law, are considered. The relevance of the principle of proportionality when restricting human rights and freedoms in crisis situations, such as quarantine or martial law, is emphasized, and the need for a clear consolidation of this principle in national legislation is emphasized. The author concludes that the principle of proportionality is not only a legal instrument for ensuring legality and justice when restricting human rights, but also an important element for preserving democracy, the rule of law and fundamental rights and freedoms in independent sovereign Ukraine. It is it that ensures full and comprehensive observance of human and citizen rights and freedoms, in particular during special legal regimes, such as martial law. It also determines that restrictions must be minimal and not exceed what is necessary to achieve a specific goal.

The role of the ECHR in shaping standards for the functioning of public media

The article examines the practice of the European Court of Human Rights (hereinafter – ECHR) as a key institution in shaping the standards for the functioning of public media in a democratic society. The primary focus is on analyzing ECHR rulings that define the boundaries of freedom of expression, the principles of opinion pluralism, and guarantees of editorial independence for public media. Based on the analysis of the case «Manole and Others v. Moldova», the issue of political interference in the editorial policy of public media is highlighted, emphasizing the need to ensure its independence. The case «Lentia and Others v. Austria» addresses the inadmissibility of monopolizing the media space and underscores the importance of safeguarding opinion pluralism. In the context of the case «Radio France v. France», the limits of journalists’ liability for disseminating false information and the necessity of adhering to professional standards are examined. Special attention is given to the case «Wojtas-Kaleta v. Poland», which establishes journalists’ right to publicly criticize the programming policy of public media. It has been established that the ECtHR’s practice directly influences the development of national legislation and law enforcement in the media sphere. The article also pays particular attention to the recommendations of the Council of Europe, which, together with judicial practice, form a comprehensive system of standards for the functioning of public media to ensure a balance between freedom of expression and the protection of human rights in the information space. The conclusions emphasize that the state has a positive obligation to ensure the functioning of public media in accordance with democratic standards, guaranteeing impartial news coverage, transparency of media ownership, economic incentives, and the protection of editorial autonomy. It has been determined that the priority tasks for developing a pluralistic media environment include implementing reasonable restrictions on media ownership concentration, alongside the development of a public media system and support for non-commercial information platforms through economic incentives and targeted funding.

Unlocking Justice: Access to Court and Litigation Costs Under the European Convention on Human Rights

Litigation costs are a standard human rights issue under the right to access to court under Article 6(1) of the European Convention on Human Rights. The purpose of this article is to demonstrate that the European Court of Human Rights has established standards for the assessment of litigation costs for civil rights claims. These standards are applicable to and triggered by excessive fees and stamp duties, inflexible and formalistic assessment of the plausibility of claims, costs related to claims for non-pecuniary damage, excessive state representation fees, and disregard for the vulnerability of litigants. These factors act as benchmarks and red flags, prompting human rights scrutiny in the assessment, allocation, and justification of litigation costs in civil rights cases. The article also outlines remedies provided by the Court for litigation cost issues.

Verein KlimaSeniorinnen Schweiz and Others v Switzerland: Making climate change litigation history

AbstractThis case note examines the landmark judgment issued by the European Court of Human Rights regarding the complaint brought by the NGO Verein KlimaSeniorinnen Schweiz and four individual applicants against Switzerland. It explores the groundbreaking nature of this judgment and its broader implications for climate change litigation at the national, regional and international levels.

The Turkish Constitutional Court’s struggle with the European human rights law: an evaluation of the court’s case-law on the crime of ‘Defamation against the President’ in light of the jurisprudence of the European Court of Human Rights

ABSTRACT This paper evaluates the Turkish Constitutional Court's norm review and individual application decisions concerning Article 299 of the Turkish Penal Code containing the crime of ‘Defamation against the President’. The evaluation is conducted within the context of international human rights law, specifically on the European Court of Human Rights’ jurisprudence on crimes that protect heads of state. While the Turkish Constitutional Court did not see an existential problem with Article 299, this paper argues that the Court overlooks significant issues regarding the provision's legality, purpose and proportionality. The view presented is that the Constitutional Court's open disregard of the European Court of Human Rights’ judgments, even when these judgments specifically focus on the Turkish crime of ‘Defamation against the President’ is an example of judicial restraint in which the Court refrains from contesting the President's standing in the current political setting. According to this paper, such a stance cannot be taken, especially in light of the problems of the provision, and the Court should acknowledge that the only way to protect the freedom of expression effectively is to get rid of Article 299.

Property within the Boundaries of Justice: An International Perspective on Legal Harmonization in Albania

This study approaches property law through the lens of Private International Law, examining the influence of Albanian legal reforms and comparing them to international and European Union norms. The notion of lex rei sitae is highlighted as a crucial premise in deciding the relevant legislation for property, including the methods of obtaining and losing property for mobile and immovable objects. Special emphasis is placed on advances in Albanian law that align with European rules, such as the protection of intellectual property rights and cultural assets. The study examines how the European Court of Human Rights has contributed to the advancement of property protection by setting realistic requirements for the execution of Article 1 of Protocol 1 of the European Convention on Human Rights. Finally, the study discusses the obstacles of effectively implementing property law in Albania, highlighting the necessity for continued alignment with best international practices. Received: 5 January 2025 / Accepted: 3 March 2025 / Published: 25 March 2025