Please find below a new selection of academic readings related to the European Convention on Human Rights and its Court:
* Francesca Tammone, ‘Challenging Externalization by Means of Article 4 ECHR: Towards New Avenues of Litigation for Victims of Human Trafficking?’, Netherlands International Law Review (2024):
‘The 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.’
* Koen Lemmens, ‘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’, Netherlands Quarterly of Human Rights (2024):
‘Surrogacy is a form of family creation that raises many medical, ethical, and legal questions. This article examines how the European Court of Human Rights (ECtHR) deals with the issue of cross-border surrogacy and its legal consequences in its recent case law. It will demonstrated that the Strasbourg Court has developed a nuanced case law that leaves it in the first place to the national authorities to deal with the complex issue of surrogacy, whereby it is nevertheless clear that further to the Strasbourg case law even if legislators rule out the possibility of surrogacy on their territory, they will have to find solutions to “‘regularise”’ the de facto situation of the child, taking into account its best interests.’
* Rebecca Lawrens, ‘A Positive Right to Rehabilitation? An Examination of the ‘Principle of Rehabilitation’ in the Caselaw of the European Court of Human Rights’, Human Rights Law Review (2024):
‘This article analyses the development and the role of the ‘principle of rehabilitation’ in the European Court of Human Rights’ caselaw on prisoner rights. It will be demonstrated that, outside of the context of whole-life sentences, the impact of the principle on the Court’s reasoning process has been relatively limited, despite increasing reference by the Court to the growing importance of the principle. Further, that the Court allowing the pursuit of rehabilitation to be used as justification for interferences with other Convention rights within its caselaw undermines the link made by the Court between rehabilitation and human dignity. Finally, it is argued that a conception of rehabilitation that is underpinned by human dignity requires recognition of a positive duty on states to provide access to appropriate rehabilitative treatment for all prisoners.’
* Tetiana A. Tsuvina and Alina Yu. Serhieieva, ‘Judicial Independence de jure and de facto: lessons for Ukraine from the case law of the ECtHR’ , International Comparative Jurisprudence (2024):
‘The principle of judicial independence is a fundamental tenet of the rule of law and fair trial standards. The European Court of Human Rights (ECtHR) identifies four criteria for evaluating judicial independence: (a) the manner of a judge’s appointment; (b) the duration of such an appointment; (c) safeguards against external influence; and (d) the appearance of independence. The ECtHR also distinguishes several dimensions of judicial independence, including independence vis-à-vis the executive, parliament, other courts, and parties, as well as independence from judicial councils. Nevertheless, despite the existence of shared European principles on judicial independence, certain countries, particularly those undergoing transitions, encounter challenges such as political interference, corruption, and insufficient safeguards against dismissal. This results in a discernible disjunction between de jure and de facto judicial independence. This article poses the following research questions: What are the main approaches and common challenges for judicial independence in European countries based on the latest case law of the ECtHR? What lessons can be learned by Ukraine, as an EU candidate, from this case law in order to mitigate the gap between de jure and de facto judicial independence?’
* Gergely Ferenc Lendvai and Gergely Gosztonyi, ‘“Access Denied” – Interpreting the Digital Divide by Examining the Right of Prisoners to Access the Internet in the Case Law of the European Court of Human Rights’, Baltic Journal of Law & Politics (2024):
‘The present paper aims to investigate prisoners’ rights to use and access the Internet, focusing on the jurisprudence of the European Court of Human Rights (ECtHR). The study’s principal objective is to assess the fundamental rights aspects of Internet access, particularly within the context of relevant EU legislation, and to interpret how the digital divide impacts prisoners. The study primarily relies on a thorough review of pertinent literature and legal materials, and it incorporates case studies from Estonia, Lithuania and Türkiye to contextualize the literature findings within specific legal jurisdictions. The research findings suggest that prisoners’ Internet access should be evaluated in accordance with fundamental rights, including Article 10 of the European Convention on Human Rights. Regarding the digital divide, the study concludes that limiting prisoners’ access to the Internet could exacerbate the already existing societal gap, potentially hindering their reintegration into society. The particular focus on the above three countries stems from the fact that as per the precedent of the ECtHR, only four countries are involved in cases concerning restriction of access to the Internet (Estonia, Lithuania, Türkiye and Russia); however, Russia ceased to be a party of the European Convention on Human Rights, so analyzing the future of the issue of Internet acces there is highly limited. Our research contributes significantly to the literature on the digital divide, particularly in terms of its legal implications. The study’s comprehensive approach, which integrates both theoretical and practical aspects, is beneficial for domestic legal professionals and researchers engaged in interdisciplinary investigations of EU law and fundamental rights.’
* Ivana Jelić and Etienne Fritz, ‘The ‘Living Instrument’ at the Service of Climate Action: The ECtHR Long-Standing Doctrine Confronted to the Climate Emergency’, Journal of Environmental Law (2024):
‘The evolving landscape of climate change litigation within human rights frameworks presents a complex challenge for courts worldwide. Recent landmark decisions by international court and treaty bodies have expanded the jurisdiction of human rights courts to address climate-related disputes. However, the most recent case law of the European Court of Human Rights (ECtHR) emphasises the delicate balance between recognising the urgency of climate action and upholding the integrity of a regional human rights system. This article explores the ECtHR’s use of the living instrument doctrine in response to climate change-related legal claims. It submits that climate change cases highlight the circumscribed role of the European Convention on Human Rights (ECHR or the Convention) in dealing with the climate emergency and reveal the tension between addressing climate change impacts and maintaining the functioning of the European human rights system.’
