European Court Of Human Rights Research Articles

Dynamics of legal regulation of exemptions in the payment and calculation of land fees in the conditions of martial law on the basis of judicial practice

The relevance of the research topic is stipulated by the new challenges faced by our country in connection with the armed aggression of the Russian Federation against Ukraine and the need to adapt the legal regulation of land payment in terms of its calculation and payment during the period of martial law. The purpose of the article is to trace the dynamics of legal regulation of land payment during martial law, and to review the current case law of both national courts regarding the resolution of disputes on the cancellation of a tax assessment notice and the case law of the European Court of Human Rights in terms of determining the conceptual foundations for the construction of legal provisions. The study of the issue of payment and accrual of land payment is of both applied and theoretical nature, since violation of the means and rules of rule-making technique leads to tax disputes. The analysis of legal constructions of the Tax Code of Ukraine and other regulatory legal acts made it possible to identify problems in the regulation of land payment, which consist in violation of the rule of law principle provided for by the Constitution of Ukraine. The Constitutional Court of Ukraine has defined the principles of legal certainty and legal predictability as components of the rule of law. The inconsistency of the provisions of the Tax Code of Ukraine and bylaws has led to a dual interpretation of their rights and obligations by taxpayers and controlling authorities. The author analyzes the positions of the controlling authorities in terms of amendments to the regulation of the calculation and payment of tax liabilities for taxation of land plots located in the temporarily occupied territories or in the territories where military operations are (were) conducted.

Current Issues of Improving Proceedings in Cases of Administrative Offenses in the Context of Compliance with International Standards of Human Rights and Freedoms

The article examines the case-law of the European Court of Human Rights on the recognition of inconsistency of the procedure for consideration by Ukrainian courts of certain categories of administrative offenses with the basic provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms of 04.11.1950. Based on the analysis of the ECHR judgment "Bantysh and Others v. Ukraine", the provisions of the Code of Ukraine on Administrative Offenses, the Law of Ukraine "On the Public Prosecutor's Office", and draft laws No. 10002 of 05.09.2023 and No. 10002-1 of 22.09.2023 on amendments to the current legislation of Ukraine on improving the proceedings in cases of administrative offenses, the author proves that the requirements of the European Court of Human Rights do not comply with the recommendations of the governing bodies of the European Union regarding the status of the public prosecutor's office in the system of law enforcement agencies, which may cause certain legal conflicts and problems with the application of the legislation on administrative offenses by the judicial authorities of Ukraine. Based on the results of the research, it is proposed to introduce changes to the current legislation of Ukraine in order to improve the status of the prosecutor in the proceedings in cases of administrative offenses and to determine the range of subjects authorized to represent the prosecution in relevant cases. 

The Compatibility of Mandatory Vaccination with the European Convention on Human Rights: Implications for a National Vaccination Policy.

This contribution examines the compatibility of mandatory vaccination with the European Convention on Human Rights (ECHR) through an analysis of the relevant ECHR rights and related case law of the European Court of Human Rights (ECtHR). By focusing on Article 8 (Right to Private Life), Article 2 (Right to Life) and Article 9 (Freedom of Thought, Conscience and Religion) ECHR, we formulate conditions under which mandatory vaccination legislation is justified. With that, this analysis aims to provide national legislators with guidance on responsible legislative policy. Additionally, this article discusses the legal framework underlying the Dutch vaccination policy, including developments therein since COVID-19. Furthermore, the role of the European Union in the context of vaccination is briefly discussed. The importance of an extensive societal and parliamentary debate before implementing a mandatory vaccination policy is stressed, as is the need for proportionality in enforcement.

DUAL SANCTIONING OF HATE CRIMES AND HATE SPEECH AS PART OF EXTREMISM IN THE SLOVAK REPUBLIC: CONCEPTUAL, LEGISLATIVE AND PRACTICAL ISSUES

Background: Extremism poses a cross-border social problem, lacking a universally accepted definition. In principle, so-called hate crimes are specific types of criminal offences that cut across all types of extremism. We can even talk about their conceptual overlap. A special category of hate crimes is represented by so-called verbal attacks, known as hate speech, which are considered an abuse of freedom of expression from an international perspective as well as in jurisprudence of the European Court on Human Rights. As a result of such a perception, their criminal sanction comes into consideration. In accordance with the principle of subsidiarity of criminal law repression, another method of sanctioning hate crimes and hate speech is also possible, namely by administrative law. The existence of “multiple legal regulations” on extremism as delict caused a dual sanctioning system of extremism. It leads to application problems in legal practice, for example, an unclear understanding of offences from criminal and administrative perspectives or even the weak possibility of investigating such acts by State power. The main objective of the contribution is to point out the dual legal regulation (criminal and administrative) of the sanctioning of extremism, in particular its special category – hate crimes and hate speech. Moreover, the objective of the contribution is to assess its unclear issues in legal understanding and to identify specific application problems caused by its dual system (criminal and administrative). Special attention is focused on applicable sanctions in both the criminal law area and administrative law areas. At the end, suggestions on how to solve indicated problems are introduced. Methods: The primary sources used for the elaboration of the contribution are scholarly sources (books, studies, scientific papers, etc.), legislative instruments (national and international legislation) and case law (of Slovak national courts and the European Court of Human Rights and the Court of Justice of the European Union). The authors use traditional methods of legal scientific (jurisprudential) research – general scientific methods and special methods of legal science (jurisprudence). The general scientific methods used in the paper are predominantly logical methods, namely, the method of analysis, the method of synthesis, the method of analogy, and the descriptive method. The descriptive method has been used to familiarise the reader with the current legal regulation of extremism. The method of analysis has been used regarding relevant legal provisions and case-laws of courts. The method of synthesis has also been used. The special methods of legal science used here predominantly include methods belonging to a group of interpretative methods, namely, the teleological method, the systematic method and the comparative method. The teleological method has been used to explain the purpose of legislative instruments. The systematic method has been used to classify the relevant applicable law. The comparative method has been used to examine the relationship between legislative perspectives – criminal and administrative. Results and Conclusions: Regarding extremism offences committed in the Slovak Republic, in specific cases, the decision making whether the committed offence is criminal or of an administrative nature depends on the attitude of the person who committed it. In the Slovak Republic, legislative amendments are intended to address the area of extremism offences, but they have not been introduced as final. A new legal regulation of the administrative offences of extremism is envisaged in terms of their definition. A new sanctioning policy of extremism administrative offences by juvenile offenders is also expected. Moreover, the application of probation in case of offences committed by juvenile delinquents in the area of extremism is recommended and preferred. It would highlight the importance of restorative justice, including its strengthening. Probation would allow the court, when sanctioning extremism in the criminal law area, to create a so-called tailor-made sanction, which would strengthen the individualisation of the sanction, the educational purpose of the sanction and the achievement of both the purpose of the sanction and the purpose of the Criminal Code, which is to protect society from criminal offences and their perpetrators. Even the Constitutional Court of the Slovak Republic partially examined the modification of the elements of criminal offences of extremism.

Challenging Externalization by Means of Article 4 ECHR: Towards New Avenues of Litigation for Victims of Human Trafficking?

AbstractThe externalization of migration control undermines the protection of victims of trafficking in human beings. Pushbacks and pullbacks at sea, as well as simplified or accelerated identification procedures, exacerbate the risk of trafficking and retrafficking and prevent victims from accessing the protection to which they may be entitled in European States. In this scenario, the European Court of Human Rights can play a crucial role among international bodies and courts in ensuring effective remedies for victims in case of repatriation to their countries of origin and transit. This study examines the applicability of the prohibition of slavery, servitude and forced labour enshrined in Article 4 of the European Convention on Human Rights—whose scope now undisputedly includes trafficking in human beings—in the context of the externalization of migration control. It demonstrates that litigating unlawful refoulements under Article 4 ECHR might be very worthwhile to raise awareness of migration-related risks for victims, to strengthen the legal framework of positive obligations in trafficking cases, and to ascertain violations of anti-trafficking international obligations by European States.

Bezárva és kizárva

Aim: The aim of this study entails the examination of the rights of prisoners to use and access the Internet, based on the case law of the European Court of Human Rights. A further objective of the study is to analyse the fundamental rights aspects of Internet access, in particular in the framework of the relevant EU law, and to interpret the phenomenon of the digital divide in relation to prisoners. Methodology: The study is primarily based on the review of the pertaining literature and legal materials. In addition, three case studies are included in the research, inter alia to allow the findings of the literature to be interpreted in the context of jurisdiction. Findings: The research concludes that prisoners’ access to the Internet should be studied in accordance with fundamental rights, including Article 10 of the European Convention on Human Rights. With regard to the digital divide, it is concluded that restricting prisoners’ access to the Internet may lead to the expansion of the digital divide, potentially hampering prisoners’ reintegration. Also of particular relevance to the findings is the demonstration that the polemics surrounding prisoners’ right of access to the Internet can be localised at a territorial level – in particular, the Baltic States and Turkey are affected. Value: The study is a useful contribution to the literature on the digital divide in Hungary, especially to the legal reception of the phenomenon. The study’s approach, combining theory and practice, is useful both for domestic legal practitioners and for researchers conducting interdisciplinary research on EU law and fundamental rights.

Legal Basis for Protection of Medical Confidentiality about HIV-status of Person

The article examines the legal mechanism for protecting the medical confidentiality of individuals living with HIV. An analysis of national legislation in this context reveals the peculiarities of the legal regime governing the medical confidentiality of this category of individuals, including the confidentiality of testing and its results, registration and accounting of people living with HIV, as well as ensuring confidentiality in the provision of medical assistance related to HIV. The article explores legislatively established grounds for disclosing HIV diagnosis, emphasizing inconsistencies between the provisions of the «On Counteraction to the Spread of Diseases caused by the Human Immunodeficiency Virus (HIV) and Legal and Social Protection of People Living with HIV» and the provisions of subordinate normative legal acts. Special attention is given to the analysis of discrepancies between the provisions of this law and the disclosure of HIV diagnosis by military medical commissions. In light of the resolution of the case «M.K. v. Ukraine» by the European Court of Human Rights, inconsistencies between a subordinate act and a higher legal act regarding the disclosure of information about individuals with HIV are noted. The article also includes specific proposals for improving legislation in this area, taking into account the aforementioned discrepancies and recommendations of the European Court of Human Rights.

Chilling effect: Turning the poison into an antidote for fundamental rights in Europe

In the famous case of Baka v. Hungary, Judge Sicilianos proposed that the European Court of Human Rights should recognize a subjective right for judges to have their individual independence safeguarded and respected by the State. Such a reading of Article 6 of the Convention would enable national judges to claim a violation of that provision each time their individual independence is interfered with. It would also allow the Court to address one of the critical blind spots in the Convention system. However, the Court left the proposal dormant until recently. It is now put before the parties in three pending cases. This article argues that the Court should seize the opportunity to enhance the protection of judicial independence, but not by employing the proposed subjective right approach. Instead, it should rely on the better alternative: the chilling effect. Such an approach would enable the Court to fill the gaps in the Convention while remaining faithful to the text and avoiding the impression that judicial independence is a privilege of judges.

Authoritarian Resistance and Judicial Complicity: Turkey and the European Court of Human Rights

Abstract International courts face growing contestations to their authority. Scholars have conceptualized the forms and grounds of such resistance as well as the response of international courts. Much empirical research has focused on regional courts with human rights mandates. Yet, in focusing on overt resistance, not differentiating between authoritarian and democratic regimes, and depicting courts at the receiving end of resistance, scholarship does not account for discrete forms of resistance tolerated and enabled by courts. In addition, studies on the European Court of Human Rights (ECtHR) base their analyses exclusively on judgments, which constitute a mere 9 per cent of this Court’s jurisprudence. This methodological bias, combined with a time frame limited to the post-2010s when the ECtHR has faced public contestations to its authority, have led to inaccurate and incomplete conclusions regarding the Strasbourg Court’s response to backlash and illiberalism. This article calls for a goal-orientated conceptualization of resistance and a methodology that analyses the ECtHR’s non-judgment jurisprudence in its entirety to reach accurate conclusions on its response to authoritarianism. Based on an in-depth and contextual analysis of the ECtHR-Turkey case, the article puts forth empirically grounded insights on authoritarian resistance and judicial complicity. It argues that authoritarian regimes seek to lessen international courts’ oversight of their policies, not to undermine the authority of these courts as such, and that international courts are not always resilient vis-à-vis authoritarian resistance but can also be complicit with it. The forms of authoritarian resistance and judicial response depend on the institutional set-up of the human rights regime in question as well as the ways in which international courts exercise their review powers. The two phenomena influence and reinforce each other, resulting in the simultaneous or consecutive occurrence of various forms of authoritarian resistance and judicial response depending on the particular political context in which they interact.

Legal Protection of the Right to Freedom and Personal Integrity of the Citizens of Ukraine (Private and Public Aspect)

The article defines the specifics of private legal protection of the right to freedom and personal inviolability of an individual in Ukraine. It elaborates on the content of the right to freedom and personal inviolability of a natural person, including both physical and psychological inviolability. The article identifies methods that violate the psychological inviolability of an individual (hypnosis, polygraph, etc.). Private legal protection of the right to freedom and personal inviolability, characterized as a personal non-property right of a natural person, has been analyzed in the context of legal regulations. The conclusion has been drawn that the right to freedom and personal inviolability is safeguarded through the establishment of a set of prohibitions regarding its infringement and methods of protection in case of violation. Both private legal and public legal means of protecting the right to freedom and personal inviolability of a natural person have been identified. The article characterizes violations of the right to freedom and personal inviolability of an individual in the context of their placement in places of liberty deprivation (orphanages, psychiatric hospitals, boarding schools, military guard-houses, detention facilities, etc.). Through the analysis of Ukrainian judicial practice and the European Court of Human Rights, the conclusion has been drawn that there are cases where there are no legal grounds for placing individuals in places of liberty deprivation, as well as instances of torture, cruel, inhuman, and degrading treatment of these individuals.

ECHR rules regarding procedural guarantees which act as balancing factors in the event of the prosecution’s witness not appearing in court

The article examines the legal position of the European Court of Human Rights regarding the possibility of using as evidence the testimony of a witness who did not appear at the court hearing and was not questioned at the pre-trial stage.
 It is established that important procedural safeguards are a component of balancing factors, together with which compensate for the difficulties faced by the defense as a result of accepting unverified statements as evidence, which contribute to a fair trial. Reliable procedural guarantees should ensure a proper assessment of the credibility of the evidence in the case under consideration.
 It has been proven that the reliability of procedural guarantees is established by the European Court of Human Rights referring to cases where the prosecution witness did not appear at the court session, based on paragraph 1 and subparagraph «d» of paragraph 3 of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms.
 In accordance with the judicial practice of the Court, reliable procedural guarantees where highlighted, with the help of which this supranational body established or did not establish a violation of paragraph 1 and subparagraph «d» of paragraph 3 of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms in the event that the prosecution witness did not appeared at the court session. Examples are given and, for each of them, the views of the Court regarding the reliability of procedural guarantees are emphasized. These examples cover various aspects of the European Court of Human Rights’ consideration of the reliability of procedural guarantees, in particular: when a witness for the prosecution did not appear at the court session, but was able to be questioned at the pre-trial stage; the position in which the defending party found itself during the conduct of face-to-face bets; evaluation of the actions of the investigator during the conduct of face-to-face bets; the reasonableness of national courts’ efforts to locate an absent witness; the need for the consent of the accused and his lawyer to announce the testimony of an absent prosecution witness; assessment by national courts of the weight of the testimony of an absent witness given during the pre-trial investigation and others.

International experience in regulating of the pre-judicial investigation bodies jurisdictions

The article is devoted to the study of the concept and legal implementation of the institution of the pre-judicial investigation bodies jurisdictions in Ukraine and the legal systems of European countries and the USA.
 Analyzed the approaches to determining responsibility and the peculiarities of the organizational component of responsibility of pre-trial investigation bodies are also described.
 It is noted that the lack of detailed legal regulation of the institution of liability in Ukrainian legislation determines it necessary to search for approaches in scientific doctrine, as well as practical solutions based on the example of existing legal systems of other countries.
 The article analyzes that, similar to the provisions of Ukrainian legislation, the definition of the concept of jurisdiction in various legal systems is quite rare. In addition, the analysis of different jurisdictions indicates the similarity of approaches to understanding the rules of jurisdiction. Similar to the Ukrainian legislation, the aspect of determining and changing responsibility belongs to the powers of the prosecutor’s office.
 It was noted that one of the main differences between pre-trial investigation bodies jurisdiction in Ukraine and in other European countries (Germany, France, and England) and the United States is the presence in Ukraine of institutionally separated subjects, in addition to the police, which are authorized to carry out pre-trial investigations.
 The legal norms that indicate the rules of jurisdiction determine the direction of activity of pre-trial investigation bodies, but unfortunately there is no regulation of the relationship between the investigation and compliance with the relevant jurisdiction. Moreover, the tendency to increase the number of pre- trial investigation bodies requires detailed legal regulation and clear procedural and procedural norms which would provide an opportunity to avoid a conflict of jurisdiction for pre-trial investigation bodies.
 Also was analyzed the European Union experience in solving the problem of the conflict of jurisdictions of bodies that carry out pre-trial investigation of member states. As part of this was described the work of the Eurojust which is authorized to solve problems with the specified conflicts of jurisdictions.
 Separately the article points out the relationship between violations of jurisdiction and the doctrine of «fruits of the poisoned tree» using the case law of the European Court of Human Rights and individual European countries as an example.

Legal regulation of combating child abduction in international family law

The obligation of states in accordance with the Convention on the Civil and Legal Aspects of International Child Abduction to carry out the immediate return of the child is not always effectively implemented due to the procedural defects of the Convention [1], which is confirmed by the practice of its application at the international level. Based on the analysis of the rulings of the European Court of Human Rights, some procedural gaps of the Hague Convention of 1980 [4] are investigated and ways to solve them are proposed. Today, in the conditions of war, solving the issue of child abduction is an urgent necessity not only in Ukraine, but in many European countries. Every year, the statistics of child abduction crimes are increasing in all countries of the world. The issue of non-implementation of foreign court decisions by countries is one of the biggest problems today. In order to fulfill the obligations imposed by the Convention of 1980, the states are obliged to create competent bodies and adopt legislation corresponding to the norms of the Convention. Actualization of children’s rights in the modern world is becoming one of the key tasks of every country. Application of international documents regulating procedural issues of cross-border child abduction in the countries of the European Union as an example for other countries. Regulation of the situation that provoked the international abduction of children also by the norms of international procedural law as an additional set of measures aimed at the fastest return of the child to his usual life, a simplified and shortened procedure for obtaining the status quo. There is an exclusive opinion in the world that in the absence of crimes related to the abduction or trafficking of children, relations regarding the return of children should be regulated only at the international level by concluding international treaties.

Abusive taxation of religious minorities. A comparative study of Tai Ji Men in Taiwan and the Jehovah’s Witnesses in France.

On 23 April 2023, US Senator Orrin Hatch passed away at age 88. Two of his main interests were tax reform and religious liberty, topics that sometimes happen to intersect.2 Senator Hatch was well aware that abusive taxation can target religious or spiritual movements or religiously motivated advocacy groups which, for whatever reason, are disliked by some tax bureaucrats. One such instance is the case of Tai Ji Men in Taiwan, which remains unre- solved after more than 25 years of legal battles and public advocacy.3 I will com- pare that case with ones that the European Court of Human Rights has consid- ered in the last two decades.

Formation of legal regulation of criminal proceedings in Ukraine under martial law

This article explores the preconditions and stages of the development of legal regulations for conducting criminal proceedings in Ukraine during a state of war. It emphasizes that the peculiarities of legal regulation in the early stages of the antiterrorist operation and before the onset of full-scale war are linked to the objective impossibility of fulfilling certain requirements guaranteeing individual rights and freedoms during procedural actions due to ongoing combat operations in specific territories. Simultaneously, the need to ensure the inevitability of punishment for guilty parties led to the introduction of special criminal proceedings regimes with limitations on certain rights and freedoms of participants. The article identifies an increase in the proportion of investigations conducted through special criminal proceedings procedures as a distinctive feature of investigating crimes committed during a state of war. This approach allows the national law enforcement and judicial systems to accomplish the task of ensuring the inevitability of criminal responsibility for individuals hiding from pre-trial investigation or court proceedings on the territory of Russia or temporarily occupied territories of Ukraine. In addressing representatives of the occupying state committing war crimes against Ukraine, the article proposes additional guarantees, especially for foreign citizens, regarding proper notification of such suspects/ accused about the date and time of procedural actions or court hearings. This aims to minimize grounds for appeals to the European Court of Human Rights due to Ukraine’s alleged violation of Article 6 of the Convention. In summary, with the introduction of a legal regime of martial law in Ukraine, the procedure for conducting criminal proceedings is designed to respond to challenges associated with armed conflict and the inability of the state to fully or partially perform law enforcement, legal protection, and judicial functions in specific territories of Ukraine. The implemented mechanism for conducting special criminal proceedings during a state of war requires further refinement to maximally guarantee the rights and freedoms of participants in criminal proceedings.

Abusive taxation of religious minorities. A comparative study of Tai Ji Men in Taiwan and the Jehovah’s Witnesses in France.

On 23 April 2023, US Senator Orrin Hatch passed away at age 88. Two of his main interests were tax reform and religious liberty, topics that sometimes happen to intersect. Senator Hatch was well aware that abusive taxation can target religious or spiritual movements or religiously motivated advocacy groups which, for whatever reason, are disliked by some tax bureaucrats. One such instance is the case of Tai Ji Men in Taiwan, which remains unresolved after more than 25 years of legal battles and public advocacy. I will compare that case with ones that the European Court of Human Rights has considered in the last two decades.

Cross-border surrogacy and the European Convention on Human Rights: The Strasbourg Court caught between “fait accompli”, “ordre public”, and the best interest of the child

Cross-border surrogacy and the European Convention on Human Rights: The Strasbourg Court caught between “<i>fait accompli</i>”, “<i>ordre public</i>”, and the best interest of the child

Proving Domestic Violence as Gender Structural Discrimination before the European Court of Human Rights

Proving Domestic Violence as Gender Structural Discrimination before the European Court of Human Rights

Intersectional Victims as Agents of Change in International Human Rights-Based Climate Litigation

Abstract Climate change uniquely affects those who are at the intersection of several inequalities simultaneously, such as those based on gender, age, and disability. This makes them ‘directly affected’ by climate change, which is crucial in establishing ‘victim status’ under Article 34 of the European Convention on Human Rights. At the same time, as a result of unequal power relations, intersectional victims face exclusion from, or minimal participation in, political decision-making processes concerning climate change. This further justifies their claim to victim status as a matter of procedural climate justice. As agents of change, intersectional victims, namely elderly women and girls with disabilities, can be empowered to contribute to climate decision making, thereby reshaping unjust power relations. The article examines two climate cases currently before the European Court of Human Rights: Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, brought by elderly women, and Duarte Agostinho et al. v. Portugal and 32 other States, brought by children and young people.

Protection of the Civilian Population from Human Rights Violations through European Mechanisms in Wartime

The problem of protecting the civilian population from human rights violations in wartime becomes especially relevant in the context of current armed conflicts. The effectiveness of European human rights mechanisms plays a crucial role in preventing violations and ensuring accountability for committed crimes. The aim of the article is to study the mechanisms of protection of the civilian population from human rights violations through European institutions. The article analyses the activities of the European Court of Human Rights and other regulatory bodies responsible for human rights protection. The study’s results revealed that despite a strong legal framework and institutional structure, the efficiency of the highest instance is questionable – 50%. Statistical analysis showed the need to strengthen international cooperation and adapt existing mechanisms to the needs of the civilian population in the regions of hostilities. The study results emphasise the importance of developing and implementing new strategies for improving human rights protection. Further research should explore the possibilities of integrating the latest technologies into monitoring and recording violations to accelerate the adoption of existing enforcement mechanisms. The study’s practical significance is the analysis of the impact of international diplomatic efforts on the prevention of human rights violations in wartime.