Tuesday, 17 December 2024

Is fair trial under threat? A controversial dilemma in Mamić and Others v. Croatia

By Dušan Ignjatović and Mihailo Pavlović, attorneys at law from Belgrade, Serbia 

On 29 August 2024, the Chamber of the European Court of Human Rights rendered a landmark inadmissibility decision in Mamić and Others v. Croatia.

 

The case concerns Mr. Zoran Mamić and Mr. Zdravko Mamić (former managers of the Dinamo Zagreb Football Club), and Mr. Milan Pernar (tax inspector) who were allegedly involved in financial misconduct regarding players' transfers and bribery of judges in a subsequent criminal proceeding in Croatia.

 

Although the case fell under the jurisdiction of the Zagreb courts, the case was transferred to the city of Osijek because of the connections that the defendants might have had with judges in Zagreb and the risk of undermining judicial impartiality.

 

In 2018, following witness testimonies and the presentation of evidence, the Osijek District Court convicted the defendants, imposing prison sentences and ordering asset confiscation.

 

Later, Mr. Zdravko Mamić revealed that judges in Osijek demanded money from him and that he granted them money and other benefits. This led to further investigations.

 

In 2021, the Croatian Supreme Court partially upheld the decision of the Osijek District Court, while constitutional complaints alleging judicial bias and procedural violations were dismissed by the Constitutional Court later that year.

 

In 2023, Mr. Zoran Mamić and Mr. Zdravko Mamić, along with others, faced fresh charges of bribery and corruption, including payments, gifts, and luxury trips offered to judges for favorable rulings. The implicated judges were later dismissed or resigned from their posts.

 

The case was brought before the European Court of Human Rights (ECtHR or the Court) after the applicants filed separate petitions alleging violations of their right to a fair trial under Article 6 of the European Convention on Human Rights. The petitions were combined for joint consideration by the Court.

 

Key complaints and the Court’s findings

 

The applicants alleged that proceedings before domestic courts violated their right to an impartial tribunal as guaranteed by Article 6 of the Convention. They alleged that corruption within the Croatian judiciary had affected the fairness of their proceedings.

 

The Croatian Government, on the other hand, argued that the applicants had abused their rights under the Convention prohibited under Article 17 and Article 35 of the Convention, through bribery, thereby undermining their right to judicial impartiality, and requested the Court to declare parts of the petitions inadmissible under Articles 17 and 35(3)(a) of the Convention.

 

The ECtHR declared the applications inadmissible, concluding that the applicants had acted in a deliberately manipulative manner in order to influence the outcome of the proceedings. It ruled that their actions constituted an abuse of the right of appeal and declared the petitions inadmissible under Article 35(3)(a).

 

The Court also applied Article 17. The Court emphasized that the applicants had exploited the judicial system by creating a situation in which they could claim bias if their manipulation failed. Their admissions that they had bribed judges and given gifts during their trials, as well as their attempts to reopen the proceedings, underscored the abuse of the judicial system.

 

In this analysis, we argue that the Court’s application of Articles 35 and 17 of the Convention in the present case is inconsistent with previous applications of the same provisions, and thus the Court has departed from its established case law.

 

Abuse of the right to petition according to the jurisprudence and the standards of the European Court of Human Rights

 

The Court’s position of rejecting the applicants’ petition on the basis of Article 35(3)(a) and Article 17 of the Convention appears problematic, regardless of whether these provisions are applied independently or together.

 

In paragraphs 114-119 of the decision, the Court set out general principles for the application of Article 35(3)(a) of the Convention, which gives it the right to reject the application if it considers that there has been an abuse of the right to lodge the application.

 

Under Article 35(3)(a) of the Convention, the Court declares an individual application inadmissible if it considers that the application is incompatible with the provisions of the Convention or the Protocol to the Convention, is manifestly ill-founded or constitutes an abuse of the right to lodge an application.

 

However, it pointed out that this is an "exceptional procedural measure" which is only applied in the event of a "harmful" use of rights by the applicant for purposes for which this legal institution was not created.

 

The Court referred to its decisions on four different situations, namely: the petitions were based on untrue facts (Varbanov v. Bulgaria); the petitions in which an improper form of communication with the court was used because the language was provocative, impertinent, contemptuous or threatening (Rehak v. Czech Republic); breach of confidentiality of the amicable settlement negotiations (Deceuninck v. France); and the applicants have submitted manifestly unfounded claims similar to those already submitted and declared inadmissible (Anibal Vieira e Filhos, Lda. v. Portugal). It turns out that none of the above decisions referred to by the Court in the Mamić decision are in any way applicable to this particular case.

 

The parallel with the Varbanov case could be drawn if the application was based on untrue facts. In the Mamić case, not only was this not the case, but it was not alleged by any of the parties.

 

In Rehak case, the applicant insulted the judges and the Registrar of the ECtHR and the Court considered that “by trying to spread his allegations and insults as widely as possible, the applicant demonstrated his determination to damage and tarnish the reputation of the institution of the European Court of Human Rights, its members and staff”. No false vocabulary was used in the communication with the Court in the Mamić case.

 

The other cases mentioned above are also not comparable to the Mamić et alia case. There were no attempts at settlement that could even lead to a situation in which the confidentiality of the negotiations would be jeopardized, and this or a similar application was not previously filed by the applicants.

 

The Court mentioned in paragraph 117 of the Mamić decision that the concept of abuse of the right to application is not limited to the situations mentioned above and that any behavior of the applicant may fall under the concept of abuse of the right if it is manifestly contrary to the purpose of the application. It should be emphasized that all the above cases in which Article 35 (3) (a) was applied referred to the abuse of the procedure before the ECtHR and none to the actions before the national courts.

 

In paras. 118 and 119, the Court clarified that the abuse of domestic remedies and the conduct of an applicant before the national authorities are relevant factors in assessing whether an application is to be regarded as an abuse of right. The decisions referred to are: Bock v. Germany; Dudek (VIII) v. Germany; and Ferrara and Others v. Italy.

 

The case of Bock v. Germany concerns the duration of domestic proceedings concerning the reimbursement of a minor expense rejected as abusive. Mr. Bock applied for reimbursement of part of the costs, namely 7.99 euros (EUR). The Court invoked Article 35(3) and declared the application inadmissible because the right of application had been abused. There was a disproportion between the insignificance of the amount in question on the one hand and the extensive recourse to legal proceedings, including recourse to an international court, on the other.

 

The criteria established in the Bock case for an abuse of the right of individual appeal are: first, the case did not involve important questions of principle; second, the plaintiff’s conduct of the proceedings was not beyond reproach (he tended to conduct proceedings in parallel, to file extensive pleadings late, and to make wholly disproportionate claims); and finally, the issue of the length of proceedings had already been addressed by the Court in numerous cases, including against the defendant government. None of the three Bock criteria were met in the Mamić case.

 

In the Dudek case, the Court recalled its decision in Bock v. Germany. The Court pointed out that, in adopting Protocol No. 14, the High Contracting Parties had clearly expressed a desire for the Court to devote more time to cases that warranted consideration on the merits and to promote the principle of de minimis non curat praetor.

 

In Ferrara, the application was declared inadmissible because the plaintiffs, using the same technique as before the national courts and continuing their conduct at the national level before the Court, had unnecessarily filed separate actions and had falsely and intentionally multiplied their requests for an award of just compensation, including costs, attorneys' fees and expenses.

 

The circumstances of the Mamić case simply do not fit with the abuses we saw in Bock, Ferrara or Dudek.

 

The Mamić case deals with much more complex and serious issues of how a defendant facing serious charges and a long prison sentence can be deprived of the right to a fair trial. It concerns the allegation that the judges demanded money and benefits from the defendant who complied with these demands. It was not a situation that was originally intended for abuse of the application, nor was the application wrongly made. This also raised the question of whether the state can be relieved of the duty to ensure a fair trial when professional judges, as state employees, are involved in turning a criminal case into a sham trial.

 

If the High Contracting Parties really wanted the Court to spend more time examining the merits and not deal with pointlessly small and repetitive cases, then this is an argument for dealing with the Mamic case on the merits.

 

Apart from the judgments referred to by the Court in this decision, we could not find any judgment in the case law of the ECtHR that decisively limits the right of the accused to a fair trial (regardless of how the accused defended himself/herself against the charges before the national courts).

 

Has Article 17 gone astray in this case?

 

Article 17 states that no provision of the Convention may be interpreted as conferring on any State, group or person the right to engage in any activity or perform any act aimed at nullifying the said rights and freedoms or restricting them more than is provided for in the Convention.

 

The main purpose of this provision is to prevent totalitarian or extremist groups from justifying their activities by invoking the Convention, for example by invoking Article 10 to advocate violent racist programs (Harris et al., Law of the ECHR, Oxford College Press, 2014, p. 852).

 

Article 17 is linked to the concept of a „defensible democracy“ (Vogt v. Germany, paras 51 and 59).

 

Article 17 sphere of application potentially covers the protection of the fundamental values of democracy and human rights, the case law mainly concerning Articles 10 and 11, with Article 17 being of potential relevance to extremist material or groups identified by the Court with an agenda that is ‘contrary to the text and spirit of the Convention’ (Paksas v. Lithuania. para. 88). Cases have concerned communism, groups with profoundly anti-democratic ambitions, holocaust denial, justification for Nazi-like policies, and hate speech (racial, religious, and ethnic) (Harris, p. 853).

 

In Bîrsan v. Romania the Court pointed out that Article 17 has a double effect. First, it prevents signatory states from relying on any of the Convention’s provisions to undermine the rights and freedoms it protects. Secondly, it prevents signatory states from relying on a particular provision of the Convention in order to restrict the rights and freedoms guaranteed by that provision to a greater extent than is provided for in the Convention.

 

In Mozer v. Republic of Moldova and Russia, the Court concluded that Article 17 cannot be interpreted a contrario as depriving a person of the individual fundamental rights guaranteed by Articles 5, 6 and 7 of the Convention.

 

In Lawless v. Ireland (no. 3) the applicant was a member of the Irish Republican Army, which committed acts of violence in order to abolish British sovereignty over Northern Ireland. He spent several months in detention without charge or trial under the Offenses Against the State Act. Neither the Commission nor the Court supported the State’s contention that no State, group or person engaged in activities falling within the provisions of Article 17 can invoke any of the provisions of the Convention. The Convention bodies held instead that Article 17 does not prevent the applicant from seeking protection under Articles 5 and 6.

 

The Guide to Article 17 of the European Convention on Human Rights – Prohibition of abuse of rights (Serbian language version of April 30, 2021) only lists cases in which the Court took the view that Article 17 could not be applied to the right to a fair trial, i.e. not a single case was listed in which the application of Article 17 was allowed in conjunction with Article 6 of the Convention.

 

All of the above convincingly demonstrate the impossibility of applying Article 17 in conjunction with Article 6 of the Convention.

 

In the Mamić decision, the Court did not refer to any of the aforementioned decisions and did not provide any explanation for the deviation from the previous practice. Perhaps the explanation could be that in the Lawless the Court did not completely close the door to the application of Article 17 in conjunction with Article 6, that the number of rights to which Article 17 has been applied is increasing and that there are no rights to which its application would be prohibited a priori in exceptional circumstances. However, the Court did not do so.

 

It is important to point out that in the applications and further submissions of Zoran and Zdravko Mamić in the proceedings before the ECtHR, arguments were put forward that Article 35 of the Convention, and in particular Article 17 of the Convention, cannot be applied.

 

The first applicant claimed that Article 17 of the Convention cannot be applied in this case, adding that the European Court has never before had recourse to Article 17 when dealing with issues arising under Article 6 of the Convention. He also argued that even if the second applicant’s actions showed disrespect for the domestic court, this did not relieve the State of its duty to ensure a fair trial for such an accused. Should it be proven that the second applicant bribed the judges of the County Court in Osijek, then he would certainly be punished for such acts in a lawfully conducted criminal trial. However, the state must ensure that the defendant is convicted by an independent and impartial court in any trial, which would certainly not have been the case if he had been convicted by a judge whom he is alleged to have bribed.

 

The second applicant alleged that the judges of the Osijek District Court had bribed him and that the corruption prevailing in the Croatian judiciary had occurred mainly because he had uncovered it. Zdravko Mamić also argued that the defendant could not waive his right to be tried by an impartial court and that Article 17 of the Convention could not be applied in this case.

 

The aforementioned arguments of Zoran and Zdravko Mamić were not without merit, and the least they deserved was a response from the court. However, the court did not address these claims of the applicants with a single word. As a rule, this behavior of the courts is extremely frustrating for the applicants and their lawyers.

 

The Challenges of Implementing Article 17

 

We consider that the provisions of Article 17 should not be applied in the Mamić case.

 

We recall that, in theory, the main aim of this provision is to prevent totalitarian or extremist groups from justifying their activities by invoking the Convention, and that it is clear from the Court’s practice that the application of Article 17 is only possible in situations where there are incidents which involve a threat to the constitutional order or the promotion of totalitarian ideologies or incitement to violence and the like, and that the Court itself stated very clearly in the Vogt decision that Article 17 of the Convention is closely linked to the concept of „defensible democracy“. This is, in popular terms, desperate cuts must have desperate cures, and this desperate cuts represents situations where fundamental values – democracy, the rule of law and human rights – are under threat.

 

The defendants in the Mamić case, with all due respect, do not, on the face of it, have the power to diminish the rule of law and seriously threaten the judicial system in Croatia. The Court’s statement that the behavior of the Mamić brothers was aimed at manipulating and seriously obstructing the judicial system seems like a platitude without any real substance. After all, it was a single criminal case. How can serious obstruction of justice be carried out in one trial? None of the applicants is a member of a totalitarian or extremist group calling for a violent change to the democratic order and the abolition of the rule of law. Why was Article 17 of the Convention invoked at the end?

 

Article 17 is a rather tempting instrument that the Court has used (until the Mamić case) mainly in cases concerning alleged violations of Articles 10 and/or 11 of the Convention. In this context, it is of particular importance to point out that the governments’ invocation of Article 17 has not been automatically accepted by the Court for Articles 9, 10 and 11 of the Convention either (see Vona v. Hungary).  

 

And while some justification for the application of Article 17 in relation of Articles 9, 10 and 11 of the Convention can be found for, we consider the application of Article 17 to be completely excluded in the case of Article 6. How can anyone be deprived of the right to a fair trial within the meaning of the Convention? What interest would justify not even preliminary examining allegations of violations of a fair trial rights?

 

Conclusion

 

The right to a fair trial must apply to all, including those accused of heinous crimes.

 

Historical debates such as Churchill’s proposal to summarily execute Nazi leaders highlight the tension between justice and expediency. However, the decision to hold the Nuremberg trials strengthened the rule of law.

 

In the case of Mamić v. Croatia, the defendants face financial charges rather than heinous crimes, making the implicit denial of the right to a fair trial all the more perplexing. Such actions risk establishing a dangerous precedent. Will future cases conclude that defendants who lie in court are waiving their right to a fair trial? Could this logic extend to suspects who exercise their right to remain silent during interrogation?

 

The Court’s decision in the Mamić does not affect the Osijek District Court's judgment, which sentenced the applicants to prison. This judgment was issued by a judge who was later dismissed for misconduct in the case, yet it remains final and unreviewable. In our view, this approach is deeply flawed.

 

The circumstances in the Mamić case were exceptional. It is not usual for a defendant to admit to bribing judges or for judges to admit to accepting bribes. Also unusual was the prosecution’s request for transfer of jurisdiction, in which it invoked the defendant’s familiarity with judges in Zagreb, while later overlooking the fact that a judge from Osijek met the defendant in a public setting and accepted a valuable gift. Such incidents, while extravagant, are not the type of behavior targeted by Article 17. Even if the defendants have committed misconduct, they do not appear to pose a threat to democracy, the rule of law or fundamental human rights.

 

By applying Articles 35 and 17, the Court declared the applications inadmissible and avoided dealing with the merits of the case. It would have been more appropriate to examine whether the applicants’ right to a fair trial had been violated. Should such a violation be found, Croatia would be obliged to retry the case according to fair trial standards and at the same time independently prosecute the bribery allegations concerning both the defendants and the judges.

 

There are strong arguments supporting the claim that Croatia failed to ensure a fair trial for the Mamić brothers. Had the case been pursued on the merits, it is highly likely that the Court would have found a violation of their right to a fair trial.

 

Unlike the 1961 Lawless decision, which upheld fair trial protections during national security crises, the Mamić ruling weakens fair trial guarantees and introduces further uncertainty into the Court’s jurisprudence. It is crucial that this decision remains an isolated case and does not represent a broader undermining of the Court’s commitment to the protection of fundamental rights.


Friday, 6 December 2024

New Issue European Human Rights Law Review

The European Human Rights Law Review has just published a new issue (Issue 6, 2024). The issue contains one editorial, three research articles, three case comments and one book review. The articles focus on the topics of the construction of border walls and human rights, the living instrument doctrine of the ECtHR and the right to legal capacity of persons with dementia. 

This is the table of contents:

* Kirsty Hughes, Stevie Martin and Stephanie Palmer, 'Northern Ireland, the Chagos Islands, and human rights developments and challenges in Westminster' (editorial)

* José Rogelio Gutiérrez Álvarez, 'Questioning the legality of border walls under international and regional human rights law' (research article)

* Konrad Ksiazek, 'The living instrument doctrine and effectiveness of human rights' (research article)

* Fiore Schuthof, 'Forget me not: the human right to legal capacity of persons with dementia' (research article)

* Veronica Botticelli, 'Beyond the divide: the human rights cost of borderisation in the ECtHR's Georgia v Russia (IV) merits judgment (case comments)

* Adam Ploszka, 'One step forward, two steps back: the European Court of Human Rights' approach to the criminalisation of begging' (case comments)

* Mattia Pinto, 'Do sex workers have a right to have rights? Let the state decide and criminalise, says the European Court of Human Rights' (case comments)

Thursday, 28 November 2024

Conference on the ECtHR and Democracy Promotion

On 5 and 6 December this year, Mikael Rask Madsen (director of iCourts, Faculty of Law, University of Copenhagen) and Cormac Mac Amhlaigh (Law School of the University of Edinburgh) are organizing a two-day workshop entitled '‘Taking Ambivalence Seriously’: The European Court of Human Rights and Democracy Promotion'. The conference will focus on the role of the European Court of Human Rights in democracy promotion. Here is a description of the event, including a list of speakers and the programme:

'A particular ambivalence surrounds in the role of the European Court of Human Rights in democracy promotion. On the one hand, as an international court, it can play a potentially useful role in countering the anti-democratic excesses of political populism in the light of its general independence from national political processes. On the other hand,  as a supranational court detached from domestic constitutional arrangements,  it is an easy target for authoritarian populist rhetoric.  The papers in this workshop use this ambivalence in the ECtHR’s role in democracy promotion as their starting point to examine the resources available to the Court to promote and enhance democracy in Europe from theoretical, political and doctrinal perspectives.'

Speakers Include:

Başak Çali, Bonavero Institute of Human Rights, University of Oxford
Esra Demir-Gürsel, Hertie School of Governance, Berlin, 
Michaela Hailbronner, University of Münster
Aileen Kavanagh, Trinity College Dublin, 
Rory O’Connell, University of Ulster
Alain Zysset, University of Glasgow

Agenda 

Thursday December 5th

09:15 - 09:45 - Coffee & Welcome

09:45 - 10:00 - Welcome and Introductory remarks from Cormac Mac Amhlaigh and Mikael Rask Madsen

10:00 - 12:00 - Session 1

• Rory O’Connell (University of Ulster): ‘The ECtHR in an age of populism and democratic backsliding: what role for non-discrimination and positive obligations?’ presented by Kasey McCall-Smith (University of Edinburgh)

• Esra Demir-Gürsel (Hertie School of Governance, Berlin): ‘Democracy and Authoritarianism in the ECtHR’s Case Law Concerning the Dissolution of Political Parties’ presented by Elisenda Casanas Adam (University of Edinburgh)

Chair: Sara Canduzzi (University of Edinburgh)

12:00 - 13:00 - Lunch

13:00 -15:00 - Session 2

• Aileen Kavanagh (Trinity College Dublin): ‘Collaborative Constitutionalism and the Strasbourg Court’ presented by Alison Seaman (University of Edinburgh)

• Mikael Rask-Madsen (iCourts, University of Copenhagen): ‘The European Court of Human Rights and Democracy’ The Interplay of Subsidiarity and Authority’ presented by Stephen Coutts (University of Edinburgh)

Chair: Kathryn Nash (University of Edinburgh)

19:30 - Dinner (official participants only): Café Andaluz, 10-11 George IV Bridge.

 

Friday December 6th

09:00 - Coffee & Welcome

09:30 - 12:30 Session 3

• Alain Zysset (University of Glasgow), ‘How to build, and not to build, the ‘democratic process theory’ of the European Court of Human Rights’ presented by Euan MacDonald (University of Edinburgh)

• Cormac Mac Amhlaigh (Edinburgh Law School), ‘The European Court of Human Rights as the Guarantor of Republican Freedom’ presented by Kanstantsin Dzehtsiarou (University of Liverpool)

• Michaela Hailbronner (University of Münster), ‘Representation Reinforcement in the ECtHR: The Minorities Question’ presented by Neil Walker (University of Edinburgh)

Chair: Juan Pablo Andrade Rojas

12:30 - 14:00 - Lunch

14:00 - 15:00 - Concluding Remarks and Next Steps


You can register for the confere here

Monday, 25 November 2024

New Book on the ECHR and Private Law

Mateja Durovic (King's College London, UK) and Cristina Poncibò (University of Turin, Italy) (editors) have just published a new edited book entitled 'The European Convention on Human Rights and Private Law: Comparative Perspectives from South-Eastern Europe'. The edited book contains various contributions adressing issues concerning the relationship between private law human rights, with a focus on South-Eastern Europe. This is a short description:

'In this book a team of expert contributors address challenging issues concerning the relationship between private law and the rule of law and human rights, with specific focus on case studies from South-Eastern Europe.

The book examines the broadening application of human rights to the private law fields and the resulting effects. Contributors offer a truly interdisciplinary perspective drawn from comparative law, civil law, procedural law and public law. By so doing, for the first time, they offer insights into the fascinating questions the region poses for private law and human rights.'


Tuesday, 19 November 2024

New ECHR Readings

Please find below a new selection of recently published scholarship on the European Convention on Human Rights and its Court. Enjoy reading!

* Andreas Hösli & Meret Rehmann, ‘Verein KlimaSeniorinnen Schweiz and Others v. Switzerland: the European Court of Human Rights’ Answer to Climate Change’, Climate Law (2024):

‘In Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the European Court of Human Rights issued its first climate-change-related decision. In a near-unanimous decision, the Grand Chamber of the Court found that Switzerland had breached its obligations under the European Convention on Human Rights. It held that the Alpine state must review and amend its climate change policies accordingly. In this case note, we highlight the key points of the judgment and comment briefly on certain points.’ 


* Kanstantsin Dzehtsiarou & Niccolò Ridi, ‘The Use of Scholarship by the European Court of Human Rights’, International & Comparative Law Quarterly (2024):

 

‘The relationship between scholarship and adjudication has attracted considerable attention in recent years, especially in those areas where significant academic expertise has been developed and academic scrutiny of decisions is common. Yet the role of scholars and scholarship in the context of the adjudicatory practices of the European Court of Human Rights (ECtHR) has remained palpably under-investigated. This article begins to fill this gap in the literature by carrying out the first large-scale empirical study of the use of scholarship by the ECtHR. The authors rely on a purpose-built dataset comprising all the citations made by the Grand Chamber of the Court in judgments and separate opinions appended to it. The study finds that the Court's majority uses scholarship for the purposes of reviewing facts and interpreting international and domestic law but does so rarely. The majority of the ECtHR does not use scholarship to interpret the European Convention on Human Rights or for persuasive purposes, unlike the individual Judges in their separate opinions. Indeed, individual Judges refer to scholarship more often, for more varied and arguably different purposes. This use, however, is inconsistent in terms of both frequency and the types of sources referred to.’

 

* Ignatius Yordan Nugraha, ‘Deferring to Consensus and Procedural Rationality: Assessing the European Court of Human Rights’ Approach to Majoritarian Will’, Asian Yearbook of Human Rights and Humanitarian Law (2024):

 

‘The purpose of this paper is to explore how the European Court of Human Rights has tackled majoritarian will when dealing with ‘hard cases’ of human rights. Under its jurisprudence, the Court has long relied on the existence of a ‘European consensus’ to interpret the European Convention on Human Rights. However, the Court has inconsistently shifted between deference to and rejection of internal consensus, which refers to the prevailing view held by the majority in a particular state. On the one hand, the Court has deferred to an internal consensus that favours restrictions on abortion, but on the other hand, in cases concerning sexual minorities, it has rejected the use of internal consensus to restrict rights. At the same time, with the Court undergoing a procedural turn where the assessment of proportionality is focused on the quality of domestic decision-making rather than a substantive analysis, today the Court is more likely to defer to reasoned and thoughtful internal consensus, which indicates a new Strasbourg-style majoritarian approach to human rights.’

 

* Ricardo Pedro, ‘The Portuguese Legal Framework of State Liability for Delayed Justice: The Relevance of ECtHR Case-Laws’, International Journal for Court Administration (2024):

 

‘This article examines the Portuguese legal framework of State liability for violation of the right to a decision within a reasonable time and, in particular, the extent to which the case-law of the ECtHR has allowed the Portuguese State to comply with the obligation of an effective remedy to guarantee the reparation of the referred damages. Starting from the analysis of the legislative legal framework which, despite admitting the aforementioned liability, does not foresee the specificities that the subject imposes, we then examine how such a task falls to national judges who, under the influence of the ECtHR’s case-law, have gradually developed a State liability framework capable of fulfilling the obligations of the ECHR by the Portuguese State for compensation for violation of the right to a decision within a reasonable time, andallowing for the assurance of a swift indemnity action to repair the resulting non-pecuniary damage.’

  

* Panagiotis Dimakopoulos, ‘Towards a “narrow” path of recipients of criminal sanctions through the jurisprudence of the European Court of Human Rights’, Yearbook of International & European Criminal and Procedural Law (2024):

 

‘The present paper aims to investigate, through the jurisprudence of the European Court of Human Rights, the nature of sanctions, starting from the Engel criteria, that are formulated during the years, forming different paths, therefore, their recipients continue to be always people who are convicted with various ways and crimes at domestic level. The paths are different for a common formal qualification regarding the erga omnes, since the sanctions as objectives are not the same for the relative justice. The dissenting opinions of the judges have laid the foundations to put our investigation to a much more in-depth path of a penal culture that behind every appearance judges sees the sanctions of each case with a way to itself.’

  

* Jonathan Herring & Heloise Robinson, ‘A right to live without stigma? Examining negative stereotyping, negative messages, and Article 8 of the European Convention on Human Rights’, Legal Studies (2024):

 

‘The purpose of this paper is to examine the contours of evolving jurisprudence on offensive expression and negative messages, and to suggest that it can best be understood by reference to the concept of stigma. At the European Court of Human Rights, there appears to have been an increasing willingness to recognise the harm of offensive expression through an interpretation of Article 8 of the European Convention on Human Rights, but the reach of this case law remains uncertain. In particular, while some cases associate negative expression with negative stereotyping, not all of these cases do, and there are potential conflicts with freedom of speech. In the domestic context, these issues recently arose in a significant case from the Court of Appeal, R (Crowter) v Secretary of State for Health and Social Care. In this case, the appellants argued that a legal provision sends a negative ‘message’, through the negative stereotyping of disabled people, but this ‘message’ is implicit, rather than explicitly articulated. While these developments raise important questions about the future evolution of case law, we propose that a focus on stigma can more clearly highlight the harms involved.’

 

* James T. Richardson, ‘The Judicialization of Religious Freedom: Comparison of European Court Systems with the U.S. Supreme Court’ in Olga Breskayava, Roger Finke, Giussepe Giordan (eds.), Religion between governance and freedoms (2024):

 

‘This chapter will first offer a definition and discussion of “judicialization of religious freedom,” including trends and conditions conducive to “judicialization.” Limitations to the development also will be examined under the rubric of “dejudicialization.” Then brief histories of the functioning of two major European court systems, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), will be offered before examining the record of these two courts concerning religious freedom. This will be followed by discussion of the history and functioning of the U.S. Supreme Court, focusing on the role of religious freedom cases. The chapter will close with a comparison of the three court systems on the issue of the judicialization of religious freedom, with attention also given to whether in some court systems dejudicialization may be occurring.’

  

* János Fiala-Butora, Matthew S. Smith, and Michael Ashley Stein, ‘Disability cause lawyering at the European Court of Human Rights: lessons from strategic litigation on the right to political participation’ in Ingrid Westendorp (ed.), Human Rights Strategies (2024):

 

‘This chapter explores disability cause lawyering dynamics by comparing the approaches to case selection, argumentation, third-party interventions, and ethical conflicts of several litigants who have brought cases before the European Court of Human Rights (ECtHR) aimed at advancing protections of persons with disabilities’ right to political participation under the Convention on the Rights of Persons with Disabilities (CRPD). This chapter suggests that, in future, disability cause lawyers seeking to advance disability rights movement goals through litigation before the ECtHR should not underestimate how, even in a post-CRPD landscape, disability biases and stigma may influence judges’ interpretation and application of relevant legal standards. Thus, when formulating their litigation strategies, future disability cause lawyers should be especially mindful of how closely their prospective clients’ individual circumstances and legitimate interests in remedying rights violations align with the collective interests of the broader movement in generating progressive legal precedents that promote harmonisation of regional law with the CRPD.’

 

* Alfonso Ballesteros, ‘Gestational Surrogacy, Private Life and the European Court of Human Rights Case Law’ in José-Antonio Seoane & Oscar Vergara (eds.), The Discourse of Biorights (2024):

 

‘This chapter analyses the surrogate motherhood case law of the European Court of Human Rights. A case law that focuses on the protection of everyone’s right to respect for private and family life (art. 8 ECHR). Usually the case decision is about the States’ refusal to recognise a birth certificate from a foreign country that has allowed a surrogacy agreement. Court’s decision does not recognize a right to become a father or a mother. And it does not usually declare the right to respect for family or private life of the intended parents has been violated. The decision often states that the right to private life of the children has been violated. Children’s identity and inheritance rights should be protected and the State condemn. This case law leads to protecting children but it leaves little room for the States to oppose surrogacy, whitening the practice.’

 

* Corina Heri, ‘Climate Change's Bankovic Moment? Understanding the European Court of Human Rights' Duarte Agostinho decision’, European Law Review (2024):

 

‘On 9 April 2024, the European Court of Human Rights issued three landmark climate rulings. With these rulings, the Court established that it is willing to engage with climate cases, and that States have human rights obligations to regulate and mitigate their greenhouse gas emissions. However, these rulings took a restrictive approach to the spatial scope of States’ obligations. In particular, in the Duarte Agostinho decision, the Court found that States did not have extraterritorial obligations linked to the impacts of their emissions outside their borders. The present article argues that, in doing so, the ruling highlights longstanding problems with the Court’s restrictive, control-based and unprincipled approach to jurisdiction.’

 

* Douglas C. Wicks, ‘The path of protection of vulnerable migrant women through the jurisprudence of the ECtHR. Evolving protection and ongoing issues’, Yearbook of International & European Criminal and Procedural Law (2024):

 

‘This paper seeks to analyze the vulnerability of migrant women through the relevant jurisprudence of the European Court of Human Rights. The topics are varied and not exhaustive in this sector and include problems concerning women following a migratory path. A path that addresses trafficking, the exploitation of prostitution, the transnational mothering, the difficulties of family reunification, the critical issues in reception, the phenomenon of female genital mutilation with cases that partially and completely show the vulnerability and at the same moment contributing to an effective and higher level of protection.’

  

* Artūrs Kučs & Jānis Pleps, ‘Constitutional Identity Between Riga and Strasbourg: The Courts’ Dialogue Developing Latvian Constitutional Law’, Journal of the University of Latvia. Law (2024):

 

‘The article provides insight into the recent development of the concept of constitutional identity in the Latvian legal system. The authors mainly focus on the dialogue between the national highest courts, especially the Constitutional Court, and the European Court of Human Rights and the Court of Justice of the European Union, concerning the concept of constitutional identity. In recent years, both supranational courts have dealt with cases involving various aspects of Latvia’s constitutional identity and the respected constitutional values, norms, and principles that define it, as well as the relevant jurisprudence of the national highest courts. The case study of Latvia demonstrates that it is possible to guarantee a harmonious approach to implementing constitutional identity in light of the state’s international obligations as a member of the European Union and the Convention on Human Rights.’


* Grazia Eleonara Vita, ‘Cambiamento climatico e diritti umani. Note alla sentenza della Corte europea dei diritti umani Verein KlimaSeniorinnen e altri c. Svizzera’, La Comunità Internazionale (2024).