Tuesday 15 March 2022

New ECHR Readings

Please find below a selection of new ECHR-related readings of the past few months:

* Jacob Mchangama, Natalie Alkiviadou, ‘Hate Speech and the European Court of Human Rights: Whatever Happened to the Right to Offend, Shock or Disturb?’, Human Rights Law Review, 2021, Vol. 21, Issue 4, p. 1008–1042:

‘In Handyside v. The United Kingdom, the European Court of Human Rights (ECHR) held that the right to freedom of expression, as provided for in Article 10 of the European Convention on Human Rights protects not only expressions that are favorably received but also those that ‘offend, shock or disturb’. 1 Yet, the Court has since developed a substantial body of inconsistent case-law allowing restrictions on ‘hate speech’ that severely questions the degree to which offensive, shocking and disturbing speech is truly protected by the ECHR. Against a qualitative and quantitative backdrop, the authors argue that the Court and previously the Commission, have adopted an overly restrictive approach to hate speech, which fails to provide adequate protection to political speech on controversial issues, including criticism of public officials and government institutions and has created an inconsistent and even arbitrary body of case law. Instead, jurisdictions that recognize a need to balance the freedom of expression with limits on hate speech have adopted more convincing approaches of hate speech, providing a robust protection of free speech while leaving room for the State to curtail the most extreme forms of non-violent hate speech.’

Oktawian Nawrot, Justyna Nawrot & Valeri Vachev, ‘The right to healthcare during the covid-19 pandemic under the European Convention on human rights’, International Journal of Human Rights, January 2022:

‘The article presents the challenges exposed by the COVID-19 pandemic from a European perspective, especially its consequences in light of the European Convention on Human Rights' (ECHR) guarantees of the right to health. It is the first attempt to comprehensively examine these challenges for the State Parties of the ECHR. The right to health has traditionally been included in the second generation of human rights; therefore, presumably, it does not in itself give rise to any specific rights for an individual. However, the European Court on Human Rights (ECtHR) has recently been linking the right to health with specific provisions of the European Convention on Human Rights, in particular with Articles 2, 3, and 8. We analyse the Court's relevant rulings and their possible consequences for the assessment of the actions taken by the States Parties in order to fight COVID-19, with special emphasis on possible State responsibility for violating the Convention. This can happen when the State's actions result in different levels of health care access available to different groups of patients (patients with COVID-19 and patients with other conditions). The analysis reveals the weakness of the approach taken by ECtHR in the face of the COVID-19 pandemic.’

* Helen Keller, Corina Heri, Réka Piskóty, ‘Something Ventured, Nothing Gained?—Remedies before the ECtHR and Their Potential for Climate Change Cases’, Human Rights Law Review, 2022, Volume 22, Issue 1:

‘The European Court of Human Rights stands before what may be its greatest challenge: addressing current and impending human rights violations stemming from climate change. As the first climate cases trickle into the Court’s docket, and speculation about the Court’s response grows, many questions remain to be answered. Perhaps the matter of greatest uncertainty relates to the type and degree of redress that the Court can offer in this context. This article argues that the Court’s often deferential, inconsistent and unreasoned remedial practice is in urgent need of overhaul. It studies the Court’s remedial practice in environmental cases to draw conclusions about the Court’s existing approach to remedies and its self-perception in this context, i.e. its own understanding of the possibilities and limitations of its role. From this, it extrapolates the remedial approaches that could potentially be taken in climate cases, and discusses the advantages and disadvantages of each one.’

* Nikos Vogiatzis, ‘Interpreting the Right to Interpretation under Article 6(3)(e) ECHR: A Cautious Evolution in the Jurisprudence of the European Court of Human Rights?’, Human Rights Law Review, 2022, Volume 22, Issue 1:

‘This article explores how the European Court of Human Rights has interpreted the right to interpretation under Article 6(3)(e) ECHR—a topic which, despite its significance for the rule of law and access to justice, has received, to date, very limited scholarly attention. The key finding is that we are witnessing a ‘cautious evolution’: the Court has progressively—yet simultaneously cautiously—developed the standards and guarantees of this right, which is one of the rights of defence under Article 6(3) ECHR and a requirement of the fair trial. The analysis focuses, in particular, on (i) how general interpretative techniques that have been developed by the Strasbourg Court were applied by the Court in its jurisprudence concerning the said provision; (ii) on the interplay between the overall fairness of the trial and Article 6(3)(e) ECHR; and (iii) on Article 6(3)(e) ECHR and the relationship between legal assistance/legal aid and the right to interpretation. In addition, the article identifies possible areas of further development of this right.’

* Daniel Toda Castán has published the monograph "The Respondent State Shall": International Human Rights Courts increasing their influence on the execution of their own judgments, with Global Law Press (2021). Based on a PhD defended in Speyer, Germany, the book is based on a survey and analysis of over 500 judgments of the European Court of Human Rights, focusing on the Court's indications to states of measures of execution of the judgments. It also compares this with the African and Inter-American systems.