Wednesday 14 February 2024

New ECHR Readings

Please find below our newest selection of academic publications covering the ECHR and the European Court of Human Rights. Enjoy reading!

* Ryan Goss, ‘The Disappearing ‘Minimum Rights’ of Article 6 ECHR: the Unfortunate Legacy of Ibrahim and Beuze’, Human Rights Law Review (2023):

‘This article critiques the European Court of Human Rights’ recent extensive case law on the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR), and particularly the right to legal assistance in criminal trials. The article examines the significant and ongoing impact of the judgments in Ibrahim (2016) and Beuze (2018) and argues that the recent case law reflects buyer’s remorse on the part of the Court for its landmark judgment in Salduz (2008). Article 6 is among the most heavily litigated provisions of the ECHR, and this article is the first extended scholarly analysis of the post-Beuze case law. The article identifies two interrelated trends in the most recent case law: first, the Court taking a number of analytical steps that allow it to overlook the text of Article 6(3) in favour of an impressionistic assessment of the overall fairness of the proceedings; and, second, the Court providing Governments with multiple opportunities to advance public interest justification arguments despite continued pronouncements that Article 6 is an unqualified right. The article suggests that the jurisprudence is weakening the Article 6 guarantees.’

* Katie Morris, ‘Vulnerability, Care Ethics and the Protection of Socioeconomic Rights via Article 3 ECHR’, Human Rights Law Review (2023):

‘Vulnerability analysis serves a distinct purpose within adjudication of Article 3 of the European Convention of Human Rights ('ECHR'), in that it has been used by the European Court of Human Rights (‘ECtHR’ or ‘the Court’) to lower the threshold for a finding of ill-treatment from which positive obligations relating to socioeconomic rights have arisen. However, the group-based notion of vulnerability invoked by the Court is extremely limited, producing minimal protection from deprivation whilst equally paternalizing and essentializing the populations it deems vulnerable. In light of these failings, this article proposes a new element to be incorporated within the Court’s vulnerability analysis which can deliver greater protection of socioeconomic rights via Article 3: the political theory of care. By highlighting care’s potential to transform the concepts of vulnerability and state responsibility whilst empowering the care-receiver, it argues that care can overcome the limitations of the Court’s current approach as a means of targeting destitution.’

* Maciej Oksztulski, Maciej Perkowski, & Wojciech Zoń, ‘Autistic Persons in the Labour Market in the Light of ECtHR Case-law’, International Community Law Review (2023):

‘The European acquis on the protection of human rights is indisputable. This also applies to the case-law of the European Court of Human Rights. However, this acquis is not extensive enough to cover all the problems Europeans have. The aim of this article is to establish the status quo in the area of anti-discrimination against persons on the autism spectrum in the labour market, taking into account the related Strasbourg jurisprudence in question, as a starting point for potential proceedings (in this area) before the European Court of Human Rights. Currently, the body of doctrine in this area is not extensive, and the increasing number of diagnosed cases of autism may in the future necessitate a deeper reflection on the guarantees provided by international law. The article will generally characterise autism, discuss ECtHR jurisprudence relating to persons with disabilities and (briefly) the right to work, discuss the labour market participation of persons on the autism spectrum in selected countries as a challenge to jurisprudence, and present a conclusion.’

* Jakub J. Czepek, ‘ECtHR Case-law Concerning Russian Aggression on Ukraine and the Events Taking Place after 2014’, International Community Law Review (2023):

‘Ukraine has faced ongoing armed conflict within the eastern parts of its territory since 2014. The state witnessed the annexation of Crimea, de facto occupation of Donetsk and Lugansk regions, the shooting down of Flight MH-17, and numerous human rights violations in the eastern parts of the country. Since the Russian aggression in 2022, Ukraine has faced armed conflict throughout the country. At the same time, Russia and Ukraine had been states parties to the European Convention on Human Rights (ECHR). Russia ceased to be a party to the ECHR on 16 September 2022, due to its expulsion from the Council of Europe (CoE) six months earlier. All the applications against the Russian Federation filed to the European Court on Human Rights (ECtHR) before this date should – and will – be examined by the Court. This research mainly aims to analyse the Court’s existing case-law concerning the events in Ukraine after 2014, and the ECtHR jurisprudence concerning armed conflicts. The purpose of such analysis is to examine the possibilities and challenges the Court will face in its forthcoming judgments in inter-state applications filed by Ukraine against Russia. It should be stressed that the execution of these future judgments may also be an issue.’

* Bartosz Ziemblicki, ‘Modern Technologies as a Challenge for the Right to Privacy under the European Convention on Human Rights’, International Community Law Review (2023):

‘The paper explores the right to privacy as a human right and its contemporary challenges in the digital age. It discusses the definition of privacy, its recognition in international human rights documents, and the wording of the right to privacy in the European Convention on Human Rights (ECHR). The article highlights the increasing difficulty of protecting privacy in the digital age and the potential threats posed by modern technologies. It also examines the balance between the right to privacy and freedom of expression, particularly on the internet, citing relevant case law from the European Court of Human Rights (ECtHR). Furthermore, the article discusses mass surveillance and the protection of personal data as a component of the right to privacy. It emphasizes the importance of effectively enforcing the right to privacy to protect individuals and societies.’

* Antonio Mariconda, ‘Victim Status of Individuals in Climate Change Litigation before the ECtHR: Between Old Certainties and New Challenges’, Italian Review of International and Comparative Law (2023):

‘The climate change applications currently pending before the European Court of Human Rights (ECtHR) present substantial challenges to the status quo of the Strasbourg system, encompassing both merits and admissibility issues. Of particular concern is their compliance with the admissibility requirement outlined in Article 34 of the European Convention of Human Rights (echr), which stipulates that applicants must be victims of a violation of the Convention by a State to file a case before the Court. Given the diffuse nature of the harms stemming from climate change, identifying individuals as victims of its effects and, consequently, whose rights are allegedly infringed upon, becomes a complex task. Furthermore, establishing a direct causal link between the harm endured and the actions or omissions of a single State proves to be equally challenging. Therefore, the aim of this article is to scrutinize how this admissibility requirement might operate in the cases at hand. In particular, it argues that, albeit with some caveats, it is legally possible to consider some climate change applicants as both direct and potential victims, as per the definitions established by the case law of the ECtHR. Nevertheless, this solution could pose significant challenges to the legitimacy and efficiency of the Strasbourg system, which the Court will have to prevent when deciding these cases.’

* Andrew Drzemczewski & Rick Lawson, ‘Exclusion of the Russian Federation from the Council of Europe and the ECHR: an Overview’, Baltic Yearbook of International Law (2022).

* Paul Gragl & Christian Breitler, ‘The Past, Present, and Future of European Inter-State Disputes: A Modest Proposal for Reconciling Inter-State Cases in the Context of EU Accession to the ECHR’, The Law and Practice of International Courts and Tribunals (2023):

‘The last few decades have seen a rise in inter-State cases before the international/supranational European courts, i.e., the European Court of Human Rights and the Court of Justice of the European Union, respectively. This article therefore examines why this particular procedure is challenging for both courts, especially due to potential overlaps in State actors/respondents as well as substantive questions in light of the EU’s planned accession to the ECHR. The EU’s tight jurisdictional corset found in Article 344 TFEU will, in particular, prove to be a considerable issue here. Lastly, possible solutions to these problems will be presented for a future scenario after the Union’s accession to the ECHR, when it will be formally bound by the ECHR and the judgments of the ECtHR.’

* Kanstantsin Dzehtsiarou, ‘Keep Me in the Loop: Feedback Exchange between the European Court of Human Rights and States’, The Law and Practice of International Courts and Tribunals (2023):

‘This article applied the theory of “Voice and Exit” developed by Hirschman to the European Court of Human Rights’ (ECtHR or Court) interaction with its member States. According to this theory, if the organisation cannot be changed through Voice, the Exit of its members is more likely. This article argues that there are avenues for the Contracting Parties to the European Convention on Human Rights (ECHR) to Voice their concerns to the ECtHR, however it is important that the Court reacts to these concerns through feedback loops. The feedback loops do not come without a cost and the Court needs to be cognisant of their dangers. The article applies this framework to existing practices of the ECtHR and considers whether the Court used the feedback loops that have already been developed with maximum efficiency. This article establishes a typology of feedback loops and explains how they are operationalised by the ECtHR in practice.’

* Agne Limante, ‘Protecting vulnerable groups in Europe: highlights from recent case law of the European Court of Human Rights’, The International Journal of Human Rights (2023):

‘This paper focuses on the recent cases of the European Court of Human Rights (the ECtHR, the Court) in which the Court offered legal protection to vulnerable groups. For this purpose, the paper will first discuss the vulnerability paradigm before the ECtHR and draw the list of groups recognised by the Court as vulnerable. It will then turn to the case law to trace the recent trends and developments in the Court’s focus when protecting vulnerable groups. In particular, the research covers the Court judgements rendered in the last four years (from 1 January 2019 to 31 December 2022).’