Please find below our newest batch of selected academic publications on the European Convention of Human Rights and the Court European Court of Human Rights and its case-law:
* Lize R. Glas, 'The age of subsidiarity? The ECtHR’s approach to the admissibility requirement that applicants raise their Convention complaint before domestic courts', Netherlands Quarterly of Human Rights, Volume 41, Issue 2 (2023):
‘The Copenhagen Declaration (2018) welcomed European Court of Human Rights (Court) ‘continued strict and consistent’ application of the admissibility criteria, ‘including by requiring applicants to be more diligent in raising their Convention complaints domestically’ when exhausting domestic remedies. This article answers the question whether the Court has indeed required applicants to be more diligent in this respect. The answer contributes to a body of academic research studying to what extent and how the Court has developed the subsidiarity principle. Additionally, the answer is of great practical relevance to applicants and their representatives, because they may have to change how they plead their case before the domestic courts with a view to bringing a complaint in Strasbourg. The case-law analysis performed in this article shows that, in some recent rulings, which mainly hailed from the UK, the Court has indeed required applicants to be more diligent in raising their Convention complaints domestically. However, the Court does not maintain this stricter line consistently.’
* Remigijus Jokubauskas and Marek Świerczyński, 'Digitalisation of Enforcement Proceedings', Utrecht Law Review, Volume 19, Issue 1 (2023):
‘This article focuses on the compatibility of electronic enforcement proceedings and the right to a fair trial. Since Article 6 of the European Convention on Human Rights is applicable to enforcement proceedings, enforcement proceedings must be effective and satisfy the requirement of fair trial. Electronic enforcement proceedings need to find a fair balance between accelerated enforcement and protection of human rights. Thus, the authors analyse what procedural guarantees of fair trial are applicable in electronic enforcement proceedings and how they are compatible with the protection of human rights. In order to answer these questions, the authors first analyse what procedural guarantees of fair trial are applicable in electronic enforcement proceedings and what is the application, ratione personae, of Article 6 of the ECHR in such proceedings. Second, the authors focus on some specific issues of electronic enforcement proceedings: electronic issuance and submission of enforceable documents and electronic auctions. The analysis encompasses the relevant case law of the European Court of Human Rights, and the regulation of enforcement proceedings and case law of various states. Third, the authors discuss the problems of liability for violations of the right to fair electronic enforcement proceedings.’
* Vladislava Stoyanova, 'Framing Positive Obligations under the European Convention on Human Rights Law: Mediating between the Abstract and the Concrete', Human Rights Law Review, Volume 23, Issue 3 (2023):
‘Positive obligations under the European Convention on Human Rights can be framed with different levels of concreteness. The level chosen is essential for understanding the analytical distinction between the existence of an obligation and its breach. The level of concreteness is an important conceptual framework because it has an impact even on the possibility of making an assessment as to whether the State has breached the obligation, and on how this assessment is performed in the reasoning. Kurt v Austria is used to illustrate how positive obligations can be framed both in more abstract and concrete terms, and how the reasoning mediates between the two. The more it tilts towards a concrete formulation of the obligation, the more the Court appears to assume the role of a rule-maker, which is in tension with the principle that States have discretion as to the concrete measures to fulfill their positive obligations.’
* Jeremy Letwin, ‘Proportionality, Stringency and Utility in the Jurisprudence of the European Court of Human Rights’, Human Rights Law Review , Volume 23, Issue 3 (2023):
‘I argue that a form of indirect utilitarianism can provide a sufficiently plausible justification for three crucial elements of the ECtHR’s doctrine of proportionality to be taken seriously as an account of this doctrine. I show how indirect utilitarianism can account for the relation between moral rights and Convention rights, the resistance to trade-offs that is a particular property of Convention rights and the nature of the public interest against which rights must be balanced. I argue that the indirect utilitarian account provides a coherent interpretation of the Court’s jurisprudence concerning: (i) aims that express moralistic external preferences and their legitimacy; (ii) balancing and the doctrine of the ‘essence of rights’; and (iii) the Court’s reasoning in Dickson v UK. I conclude by exploring the further work needed to establish more firmly this account’s plausibility as an interpretation of the Court’s doctrine of proportionality as a whole.’
* Marko Bošnjak and Kacper Zajac, ‘Judicial Activism and Judge-Made Law at the ECtHR’, Human Rights Law Review, Volume 23, Issue 3 (2023):
‘This paper contributes to an ongoing debate concerning the perceived judicial activism of the European Court of Human Rights (ECtHR). It argues that the output of the Court should be better viewed as the phenomenon of judicial law-making, not unlike in domestic jurisdictions. However, unlike many domestic legal systems, the European Convention on Human Rights framework promotes large quantities of judge-made law. This outcome results from a combination of objective factors that, taken together, enhance the process of judicial law-making by the ECtHR. Those factors include the applied mode of interpretation of the Convention, the approach to its construction, the weak textual basis, the existence of positive obligations, the lack of the doctrine of precedent, the extremely high case law and judicial turnovers, the concurrent legislative inactivity, the existence of the inter-state jurisdiction and the doctrine of autonomous meaning. At the same time, the judicial law-making is only hindered by the doctrine of subsidiarity, the principle of margin of appreciation and the Fourth Instance doctrine. As a consequence of this overwhelming dominance of the factors enhancing the process of judicial law-making over those that hinder it, the ECtHR produces large quantities of judge-made law.’
