Friday, 31 January 2025
Conference on the Role of the CoE in the Pursuit of Peace, Justice and Accountability
Thursday, 30 January 2025
Podcast Episode on Russia and the CoE
Wednesday, 29 January 2025
Three New Judges Elected
The new judge in respect of Slovenia will be Vasilka Sancin. In addition to being a renowned academic, as professor of international law, she is also a member of the UN Human Rights Council Advisory Committee. She has served in a case as ad hoc judge in the Court and previously was both member and vice-chair of the UN Human Right Committee.
The new judge in respect of Armenia will be Vahe Grigoryan. He is judge and vice-vicepresident of the Constitutional Court of Armenia. Previously, he was a practising lawyer in Armenia and also worked for the European Human Rights Advocacy Centre in London. He was an international legal expert for the Council of Europe on a variety of topics and was legal counsel to dozens of applicants before the European Court of Human Rights.
The new judge in respect of Andorra will be Canòlic Mingorance Cairat. She is currently President of the Andorran Tribunal de Corts (Court of Appeal, Criminal law division). Next to that, she is a professor of International Co-operation and International Justice. Previously, she was an investigative judge in Andorra and a member of the European Committee for Legal Co-operation.
Their 9-year terms will commence within three months. Congratulations to all three!
Monday, 27 January 2025
Court Creates Internal Ethics Council
The creation of the Ethics Council, decided by the Court's plenary in December, is integrated into the existing resolution on judicial ethics which already provided that the Court's President has a key role in giving advice on this matter. The President will now thus formally be supported on these issues by the coming Ethics Council. According to the Court's press release:
'The Plenary Court has decided that its President will now be able to consult an Ethics Council whenever he or she considers it necessary to give guidance to a Judge seeking advice on compliance with the ethical standards in a given situation. The Ethics Council will have competence to give guidance regarding serving, ad hoc and former judges. Guidance can also concern the Court itself, as an institution.
The Ethics Council will be made up of five members: the most senior Vice-President of the Court, the most senior Section President and the three most senior sitting judges. The Ethics Council will be assisted by the Registrar of the Court.'
Wednesday, 22 January 2025
Summer School on the Council of Europe and the European Convention on Human Rights
What will be discussed?
For over 75 years, the Council of Europe unites Europe around the values of democracy, human rights and the rule of law. In 2025, the participants of the Summer School will debate whether the Council of Europe is successful in its mission. The aim of the summer school is twofold.
Firstly, the experts will assess the effectiveness of execution of the judgments of the European Court of Human Rights and other bodies of the Council of Europe. Secondly, the Summer School will also address the pressing challenges of migration, a critical legal and political issue facing every European state. Discussions will examine the Council of Europe’s role in protecting the rights of migrants, analysing relevant legal standards, policies, and the responsibilities of member states in this context.
The course will feature insights from key decision-makers within the Council of Europe, leading academics, and other stakeholders. Through these discussions, participants will gain a comprehensive understanding of the Council of Europe, its effectiveness in protecting human rights, democracy and the rule of law. The participants will gain the knowledge necessary for research, effective advocacy, implementation and public policy design.
What is the format?
The Summer School will be set as an educational space for interactive and engaging learning, and discussion. The Summer School will last for two weeks. Seminars and workshops will be led by high profile invited researchers and practitioners. These activities will be complemented by interactive sessions delivered by academic staff members of the School of Law and Social Justice of the University of Liverpool. Please note that participation will be in-person only, as online attendance will not be available.
Who can participate?
This Summer School will be useful for advanced postgraduate taught (Master's) and research (PhD) students, post-doctoral researchers, early career scholars, practitioners such as lawyers, judges, civil servants interested in the law of the Council of Europe, and in human rights, the rule of law and democracy. While the program is open to lawyers, it also welcomes individuals specialising in related fields, such as political science, sociology, criminology etc., who possess the necessary background knowledge to engage effectively in the discussions.
What is the language of the Summer School?
All Summer School activities will take place in English. Participants shall be proficient in English.
Who is the faculty?
- Professor Vincent Chetail (Geneva Graduate Institute)
- Mr Hugh Chetwynd (TBC) (Executive Secretary of the Council of Europe's Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment)
- Judge Mykola Gnatovskyy (Judge of the European Court of Human Rights)
- Ms Lilja Gretarsdottir (Head of Department for the Implementation of Human Rights, Justice and Legal Co-operation Standards, Council of Europe)
- Judge Mattias Guymar (TBC) (Judge of the European Court of Human Rights)
- Dr Julia Kozma (TBC) (Member of the SPT)
- Judge Martin Kuijer (Justice of the Supreme Court of the Netherlands, Vice-President of Venice Commission)
- Mr Sandy Moss (UK permanent representative to the Council of Europe)
- Professor Michele Nicoletti (the former President of the Parliamentary Assembly of the Council of Europe)
- Professor Aoife Nolan (President of the European Committee of Social Rights)
- Dr Theodoros Roussopoulos (TBC) (the President of the Parliamentary Assembly of the Council of Europe)
University of Liverpool staff members will also provide interactive master classes. They will be led by:
- Dr Amanda Cahill-Ripley
- Professor Kanstantsin Dzehtsiarou
- Professor Valsamis Mitsilegas
- Dr Maayan Niezna
- Dr Vassilis Tzevelekos
How much does it cost?
Participation fee
£800 GBP
Accommodation
Bed and breakfast accommodation will be approximately £800 GBP
Scholarships
A number of scholarships will be provided to the selected participants covering the participation fee and bed-and-breakfast accommodation only. The scholarships are provided by the Council of Europe and the University of Liverpool's International Law and Human Rights Unit.
Visas
We cannot offer any visa related support.
However, accepted participants will receive a letter confirming their
place in the summer school which they can then demonstrate during their
visa application. Please leave ample time to apply for a UK visa as you
may experience delays.
How to apply
Deadline and outcomes
Those applicants who wish to be considered for scholarships must submit no later than 23:59 (UK time) on 24 February 2025. Applications from the fee-paying participants will not be accepted after 23:59 (UK time) on 30 April 2025.
Organisers
Tuesday, 21 January 2025
Reflections on the Court’s Key Case Law of 2024: Part II
By Dr. Jasmine Sommardal, Associate Editor of the ECHR Blog
Key cases are cases accorded the highest level of importance by the European Court of Human Rights (‘the Court’). This blog post provides some general reflections on the Court’s key case law of 2024, following an earlier post with a succinct overview of the main themes in the key cases and the core rights developments they brought about. This post argues that the key cases of the past year (I) show the Court as eager to adapt to ‘emergencies’ in the European environment, (II) as seldom developing the Convention guarantees on necessity in a democratic society, (III) as amply relying upon international and European comparative materials, and (IV) as often interpreting the European Convention on Human Rights (‘the Convention’) in harmony with the Court of Justice of the EU’s (‘CJEU’) jurisprudence. The key cases also reflect (V) the continued importance of a procedural approach in the Court’s case law.
I. A Responsive Court?
In some of the key cases, the Court seems eager to provide a Convention interpretation that lives up to the demands of the changed societal environment that the cases might reflect. The Court’s key cases seem particularly responsive to acknowledge four types of ‘crisis’ or ‘emergencies’ that have been facing European societies – the climate change crisis, the Russian war of aggression against Ukraine, the rule of law crisis, and the COVID-19 pandemic.
First, in relation to climate change, the Court interpreted an association’s right to standing in a way which contrasts with its earlier well-established case law whereby the Court does not grant victim status to associations whose interests are not at stake, even if the sole purpose of the associations is to defend the rights of the alleged victims (Nencheva and Others v. Bulgaria, para. 93). Due inter alia to the global and complex nature of climate change and the urgency and severity of its consequences, the Court in KlimaSeniorinnen created an exception to this rule (paras 489, 499). The Court also, for the first time, established positive obligations for the Contracting Parties with respect to Article 8 rights in a climate change context. The Court referred to climate change as ‘one of the most pressing issues of our times’ (para. 410), and to the ‘pressing urgency of climate change and the current absence of a satisfactory regulatory framework’ (para. 567). Some have held that KlimaSeniorinnen was a way of fostering the Court’s strategic role as a rulemaker and its own legitimacy.
Second, Ukraine v. Russia (re Crimea) has been described as a significant victory for Ukraine and a case where the Court goes ‘All-in’. The Court established a new criterion for the lawfulness of an occupying power replacing existing laws, that is, that this replacement is in accordance with relevant provisions of international humanitarian law. Although the Court has not often established the existence of an administrative practice (see, for example, Aydın v. Turkey, para. 124), in Ukraine v. Russia (re Crimea) it established several administrative practices on behalf of the Russian authorities. It also found that the Crimean tribunals applying Russian law were not ‘established by law’. These conclusions send a strong signal about the lawlessness of the practices in Crimea (despite clear challenges in ensuring consistency of these conclusions with the continued applicability of the ICCPR in Russia, or with regards to the application of Israeli law on occupied territories – in Ukraine v. Russia (re Crimea) the Court in practice decided that every measure and domestic court judgment applying Russian law in Ukraine fails the Convention lawfulness test). Further, although the finding that the activities of the authorities were devoid of lawfulness would already have been sufficient for concluding the review, the Court also reviewed the substantive violations. It also highlighted the seriousness of the case by applying and finding a violation of Article 18. Furthermore, Ukraine v. Russia (re Crimea) extensively relied upon international materials and the use of evidentiary techniques such as assumptions and reversal of the burden of proof. These adjudicatory techniques might have allowed for a different conclusion with respect to the Russian authorities’ approach to discrimination of Crimean Tatars than the ICJ in Ukraine v Russia (CERD and ICSFT) (these points were raised by Milanovic in an excellent post). The Court’s forceful approach in a unanimous judgment signals a strong reprehension towards the Russian occupation of Ukrainian territory.
The Court has, over recent years, also significantly developed its case law on rights of judges, especially in the context of judicial independence. These requirements have been seen as a response to what has been labelled a ‘rule of law’ crisis in Europe. In Aydin Sefa Akay, the Court extended the requirements of the independence of judges mutatis mutandis to international judges and courts. It may be subsumed under the Court’s response to various attempts to weaken the position of judges in Council of Europe member states.
Finally, in Pasquinelli and Others, the Court followed its earlier adopted lenient review of vaccination cases, especially in the COVID-19 context, and in practice held that only severe consequences for the individual due to the absence of vaccination could eliminate actual choice when a voluntary vaccination was concerned (paras 61-62). The Court also referred to the principle of subsidiarity, and a wide margin of appreciation especially in healthcare policy matters (para. 92). It particularly reviewed contested measures’ necessity in a democratic society ‘without the benefit of hindsight’ (para. 98). Given the voluntary nature of the vaccination, the Court only evaluated the effects of the absence of vaccination on the applicant’s Article 8 rights. For the same reason, the Court did not take into account the emotional effects of the measures on the applicants (para. 102). The Court also considered that the financial losses and unemployment caused by adaptation measures were an ‘unavoidable consequence of a global pandemic and the exceptional and unforeseeable context States found themselves in at the relevant time’ (para. 106). Pasquinelli and Others indicates the Court’s willingness to take into account COVID-19 as a public-health emergency demanding adaptation and special measures (paras 97, 106).
In sum, in KlimaSeniorinnen, Ukraine v. Russia (re Crimea), Aydin Sefa Akay, and Pasquinelli and Others, the Court’s reasoning seems to accommodate a perceived need to respond to different crises or emergency situations.
II. The ‘Crux’ of the Key Cases was not Necessity
Another takeaway from the key cases in 2024 is that notably little of the Convention guarantees developed in them is about ‘necessity in a democratic society’ – the traditional ‘crux’ of a case before the Court. (One exception is J. Paul Getty Trust and Others). Indeed, the literature has shown how the Court’s necessity test is unstructured or provides room for improvement. When the necessity test in the key cases was decisive for the Court’s review, there was often a conclusion of non-violation of the Convention without a development of new Convention guarantees. The Court, in this way, concluded a non-violation in relation to measures imposed on workers who did not vaccinate against COVID-19 (Pasquinelli and Others), the impossibility for a terminally ill patient to be assisted in dying (Dániel Karsai), age limits in the recruitment of police officers (Ferrero Quintana), and the introduction of a criminal prohibition of the purchase of sexual activities (M.A. and Others). In Dian (dec.), the Court did not even consider that convictions for begging on a public street reached the threshold of Article 8 being applicable. The 2024 key cases suggest a decreased relative importance of the traditionally crucial assessment of ‘necessity in a democratic society’ – that test does not take centre stage in the Court’s current key case law developments.
Instead, the Court’s key case law developments are reminiscent of some other trends established in the Court’s case law. First, the Court extensively developed the Convention lawfulness criteria (Ukraine v. Russia (re Crimea) and Aydin Sefa Akay). These developments may resonate with a broader tendency of extending the Court’s lawfulness requirements, especially in the context of cases involving surveillance or the right to privacy, or in relation to the requirement of a ‘tribunal established by law’.
Second, although the Court’s analysis of legitimate aims traditionally has been succinct, the case law also shows a somewhat increased focus on legitimate aims in the Convention interpretation (for instance, S.A.S. v. France [GC], paras 113-122; Bayev and Others v. Russia, para. 67; OOO Memo v. Russia, paras 35-50; or Mukhin v. Russia, paras 115-119). The Court has also in recent years hightened its focus on ulterior purposes and developed its case law under Article 18. The Court’s in-depth analysis of animal welfare as a legitimate aim (Executief van de Moslims van België and Others, paras 90-102), cultural and artistic heritage as a legitimate general interest (J. Paul Getty Trust and Others, paras 340-359), and the developed requirements of a strong enough connection with the aim sought with the derogation under Article 15 (Domenjoud, para. 154) fit well within the recent case law focussing on the aim or purpose of rights restrictions.
Third, the Court’s establishment of positive obligations in a climate change context in KlimaSeniorinnen pairs well with positive obligations being a central contribution of the Court’s work (for instance, Stoyanova, Lavrysen, Mowbray).
Fourth, echoing the importance of positive obligations, the Court’s case law developments in F.M. and Others (paras 288-289, 283-285) also seem to manifest the tendencies of using criminal law to protect human rights, and interactions between (international) criminal law and international human rights law. Finally, the Court’s recognition of intersectional discrimination (paras 342-347) indicates that intersectionality, in a promising way, is gaining recognition not only under international human rights law generally, but also under the ECHR. All in all, little in the Court’s key developments was about the necessity of rights restrictions in a democratic society.
III. Heavy Reliance on International and European Materials
Reading the key cases of 2024, it also becomes clear the Court’s substantive reasoning time and again accorded relevance to international and European legal materials, as well as to the existence of an international or European consensus.
In Ukraine v. Russia (re Crimea), the Court extensively relied on international humanitarian law for concluding that when the Russian Federation extended the application of its law to Crimea, it did so in contravention of the Convention (paras 934-945). The Court also extensively relied upon international humanitarian law and international reports for concluding various administrative practices contrary to the Convention. The Court did so despite the fact that the Convention requirements in most of the areas concerned are fully aligned with international humanitarian law – as noted by Milanovic, applying international humanitarian law to the case did not make much substantial difference to the interpretation of the Convention.
In KlimaSeniorinnen, the choice and criteria of providing broader standing to associations in the context of climate change litigations were justified with reference to international materials, such as the Aarhus Convention, and comparative materials on standing before European courts (paras 490-494, 501). The extent of positive obligations on climate change under Article 8 was also developed in line with the international commitments of the Contracting Parties, especially under the United Nations Framework Convention on Climate Change and the Paris Agreement, and the scientific evidence provided by the Intergovernmental Panel on Climate Change (‘IPCC’) (paras 546, 547). The established broader margin of appreciation for how the Contracting Parties are to reach their climate goals is in line with the Paris Agreement, where each state is called upon to define its own pathway to carbon neutrality (para. 547). Further, the Court relied on international materials, such as IPCC reports, the German Federal Constitutional Court, and EU legislation, for concluding that the measures taken by the Swiss authorities had not been sufficient (paras 562, 571).
In Aydin Sefa Akay, the ‘lawfulness’ requirement was interpreted in light of international law with respect to immunities. The Court made a rather nuanced assessment of the foreseeability and compatibility with legal certainty of the domestic courts’ interpretation of the applicant’s immunity, in light of several international instruments and sources (paras 121-128), for concluding that not according full diplomatic immunity to the judge was unforeseeable and ‘that a judge of an international court is not a representative of a member State to an organ of the UN, that being incompatible with the very independence that defines a judge and judiciary, be it national or international’ (para. 128).
In J. Paul Getty Trust and Others, the Court heavily relied on the UNIDROIT Convention and the broader international and European legal framework, in its interpretation of Article 1 of Protocol No. 1 both with respect to the Italian state’s classification of the bronze statue as belonging to its cultural heritage, and the need for the buyer to act with the necessary diligence (paras 341, 348, 352-359, 381-383).
In F.M. and Others, the Court in accordance with its case law, adhered to ‘the principle of harmonious interpretation of the Convention and other instruments of international law’, noting that the Council of Europe Convention on Action against Trafficking in Human Beings and the Palermo Protocol were decisive for whether a situation involves trafficking under the Convention and whether Article 4 applies (para. 240). It further referred to The Legislative Guide for the Palermo Protocol when establishing that consent should have no bearing on establishing whether or not trafficking in persons has occurred (para. 284). The Court also, for instance, referred to the Palermo Protocol and the Council of Europe trafficking Convention when justifying the need for a comprehensive approach to combat trafficking (para. 280), and to the Council of Europe trafficking Convention when characterising trafficking as the modern form of the old worldwide slave trade (para. 238 see also para. 311 on jurisdiction).
In Pindo Mulla, the Court accorded importance to the Oviedo Convention when accepting the legitimate aim to save the life of patients (para. 135) and the importance of previously expressed wishes of the patient (para. 128, together with the World Medical Association’s directives, and paras 151-153, 154, 158).
The Court also used consensus reasoning to restrict the development of rights in the 2024 key cases. Both in M.A. and Others and Dániel Karsai, the Court justified its decision with the lack of a sufficient European consensus or trend. The key cases thus illustrate the two-edged sword of consensus reasoning – or its both ‘spur’ and ‘rein’ effect. The absence of consensus (on the level of generality established by the Court) can restrict the development of new Convention guarantees. Yet, it is remarkable that in both M.A. and Others (para. 167) and Dániel Karsai (para. 167), the Court also requires the authorities to keep their policy under constant review having regard to the international standards and developments in European societies. These considerations echo cases such as Ždanoka v. Latvia [GC], where the Court required the domestic authorities to keep the legislation under constant review (in view of bringing it to an early end) (para. 135).
Research indicates that citing external sources can have especially high persuasive value when a court decision cannot otherwise be justified by existing precedent (Voeten and Christensen). Citing external sources may also provide some external authority for convincing the Court’s interlocutors of its reasoning. The Court’s extensive use of international and European law materials as well as consensus reasoning in its key case law seem to provide some further confirmation of these findings.
IV. Converging Interpretation with the CJEU
Several of the Court’s key cases also show a convergence or harmonisation of the Court’s decision-making with that of the CJEU. As noted by Callewaert, certain cases illustrate the interaction and cross-fertilisation between the Strasbourg and Luxembourg courts’ rights interpretation. This tendency is particularly interesting in view of the ongoing renewed attempt at the EU’s accession to the ECtHR.
In Executief van de Moslims van België and Others, it was of significance to the Court that the CJEU had given a preliminary ruling in precisely the same case. This was one reason why ithe Court rejected to further develop the Convention requirements under Article 9 (para. 115). The Court did not find any serious reason to depart from the conclusions of the CJEU, and even referred to the principle of subsidiarity (paras 115-116, although, of course, the rationale of being the suitable decision-maker due to the ‘direct and continuous contact with the vital forces of their countries’, may not apply to the CJEU). The Court’s development of the legitimate aim of public morals to encompass animal welfare was also in line with Article 13 TFEU, which establishes animal welfare as an objective of general interest.
Similarly, in Ferrero Quintana, the CJEU had dealt with another application concerning the same age limit in the public competition to recruit police officers, without finding that it raised issues under EU law. This played an important role in the Court’s finding of the age limit’s compatibility with the Convention (paras 88, 92, 96). The Court also explicitly referred to the importance of judicial dialogue through preliminary references to the CJEU (para. 78).
In A.L. and E.J., the Court justified its conclusion on the need to exhaust domestic remedies in France with the jurisprudence of the CJEU, according to which the EU Member States are required to ensure respect for the right to an effective remedy enshrined in Article 47 of the EU Charter in the context of the issuance and execution of an European Investigation Order (para. 136). The Court also took into account that the CJEU had held in its case C‑670/22 M.N., that when an issuing authority wishes to secure, by means of an European Investigation Order, ‘the transmission of evidence already in the possession of the competent authorities of the executing State, the issuing authority is not authorised to review the lawfulness of the separate procedure by which the executing Member State gathered the evidence sought to be transmitted’ (point 100, para. 137 of A.L. and E.J.). There was a harmonisation with the CJEU’s interpretation on the question of a need to exhaust domestic remedies in the state executing an investigation order.
V. Continued Relevance of the Procedural Approach
The final point of reflection is that the key cases manifest the continued importance of what the literature has coined a ‘procedural turn’ or ‘procedural rationality’ in the Court’s review (see, for example, Popelier and van der Heyning, Brems, Kleinlein, Spano), whereby the quality of the domestic processes – be it before the parliamentary, executive or judicial authorities – impacts the Court’s assessment of Convention compatibility. Four of the Court’s key cases clearly adopt such an approach.
In Pindo Mulla, where the Court, on the one hand, emphasised the importance of individual autonomy with respect to a decision to refuse blood transfusion (paras 137-138, 146), it still concluded its review by essentially finding a procedural violation of the Convention. The Court held that the ‘decision-making process, as operated in this case, did not afford sufficient respect for the applicant’s autonomy’ (para. 183).
In KlimaSeniorinnen, the Court also established that the ‘procedural safeguards available to those concerned will be especially material in determining whether the respondent State has remained within its margin of appreciation’ (para. 553). These safeguards included mechanisms ensuring access to conclusions of relevant studies (para. 554), and safeguards through which the views of the public, in particular those affected or in risk of being affected, can be taken into account in the decision-making process (para. 555).
In M.A. and Others, the Court took into account the legislative procedure preceding the adoption of the law criminalising the purchase of sexual activities (para. 158). The Court acknowledged that the French legislature had made a legislative choice resulting from careful parliamentary review of all the cultural, social, political and legal aspects of the measures put in place to regulate an eminently complex phenomenon, which raised highly sensitive moral and ethical questions (para. 158). The Court held that it should not substitute its own view with that of the domestic authorities competent concerning the most suitable political choice (para. 159). The Court also took into account the broader policy and parliamentary efforts seeking to discourage prostitution without prohibiting it (paras 160, 163). Similar considerations were present in Executief van de Moslims van België and Others (paras 105, 108-110, 118).
Conclusion
This post has provided five points of reflection on the Court’s key case law in 2024. First, the key cases show a certain willingness, or even eagerness, to answer to perceived contemporary European ‘crises’ or ‘emergencies’. Innovative interpretations in the key cases of 2024 may be related to the climate change crisis, the Russian war of aggression against Ukraine, and the rule of law crisis, whereas the Court has provided leeway to Contracting Parties in the COVID-19 context. Second, despite the broad array of rights developments brought about by the key cases, little was directly about the Court’s review of necessity in a democratic society. Third, the Court often justifies its findings with references to international and European legal materials and consensus reasoning, and fourth, it has often harmonised its interpretation with that of the CJEU. Finally, the key cases also manifest the continued importance of a procedural approach in the Court’s review.
Monday, 20 January 2025
The Court’s Key Cases in 2024: Part I
By Dr. Jasmine Sommardal, Associate Editor of the ECHR Blog
As 2024 has come to an end, the European Court of Human Rights’ (‘the Court’) final selection of key cases for the past year has been published. Among the Court’s four categories of cases, key cases are accorded the highest level of importance. The selection of the key cases has since 2007 been made quarterly by the Bureau (composed of the President, Vice-Presidents, and Section Presidents of the Court) upon the Jurisconsult’s recommendation (the role of the Jurisconsult being to ensure the quality and consistency of the case law). According to the Rules of Court, the Court’s Registrar is to draw appropriate attention to those cases selected as key cases. The selection of key cases provides an insight into what the Court considered the most significant cases of 2024.
This blog post will succinctly overview the main themes of the key cases in 2024 and the core developments of Convention requirements they brought about. It thus provides a short recap of the Court’s judicial year in terms of key cases. A separate post providing some general reflections on the key case law of 2024 will follow soon.
A Broad Range of Cases
The key cases of the Court concern almost all substantive Convention articles. They were filed against Belgium, Denmark, France, Hungary, Italy, Portugal, the Russian Federation, San Marino, Spain, Switzerland, Türkiye, Ukraine, and the United Kingdom. The selection includes one inter-state application (Ukraine v. Russia (re Crimea) [GC]). Seven key cases were decided by the Grand Chamber, and twelve by a Chamber formation. Four cases were decisions (Dian v. Denmark (dec.); A.L. and E.J. v. France (dec.); Carême v. France (dec.) [GC]; Duarte Agostinho and Others v. Portugal and 32 Others (dec.) [GC]), and the rest judgments.
The cases concern a wide range of substance matters, as shown in the following list of the main theme(s) in each case.
The validity of a waiver of the right to legal assistance when the applicant suffered from drug withdrawal (Art. 6) |
Affaire Executif van de Moslims van België and Others v. Belgium (analysed here and here)
Organisations representing individuals of Muslim and Jewish faith complained about decrees prohibiting animal slaughter without prior stunning (Art. 9) |
Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC] (extensively analysed – for instance, here, here, here, here, here, here and here)
Positive obligation to combat climate change (Art. 8, Art. 6) |
Duarte Agostinho and Others v. Portugal and 32 Others (dec.) [GC] (analysed for instance here and here) Climate change complaints by a group of young Portuguese (Art. 1, Art. 35) |
Carême v. France (dec.) [GC] (analysed for instance here and here)
Climate change complaint by a former municipality mayor (Art. 35) |
Aydin Sefa Akay v. Türkiye (analysed here)
Arrest and pre-trial detention of international judge despite their diplomatic immunity (Art. 5) |
J. Paul Getty Trust and Others v. Italy (analysed here, and here) Cultural heritage. A confiscation order aimed at recovering a bronze statue from the classical Greek period to the Italian authorities (Art. 1 of Prot. No. 1) |
Curfews imposed in the context of COP21 against the background of a terrorist threat and violence (Art. 2 of Prot. No. 4, Art. 15) |
Dian v. Denmark (dec.) (analysed here, here, and here) The conviction of an individual for begging in a public street (Art. 8) |
Nealon and Hallam v. the United Kingdom [GC] (analysed here and here)
Presumption of innocence in proceedings that refused the applicants compensation for miscarriage of justice following the quashing of their convictions (Art. 6) |
Dániel Karsai v. Hungary (analysed here and here)
The impossibility for a terminally ill patient to be assisted in dying (Art. 8) |
Ukraine v. Russia (re Crimea) [GC] (analysed i.a. here, here, and here)
The Russian authorities’ treatment of different groups of people on the territory of Crimea, alleged administrative practice (multiple articles, lawfulness) |
M.A. and Others v. France (analysed here and here)
Introduction of a criminal prohibition of the purchase of sexual services (Art. 8) |
Pasquinelli and Others v. San Marino (analysed here)
COVID-19. Measures imposed on health care and social health workers for refusing to get vaccinated (Art. 8) |
Pindo Mulla v. Spain [GC] (analysed here and here)
Blood transfusions administered despite the applicant’s explicit refusal (Art. 8) |
Fabbri and Others v. San Marino [GC] (analysed here)
Alleged judicial inaction and resulting non-adjudication of civil claims brought in the ambit of criminal proceedings (Art. 6) |
A.L. and E.J. v. France (dec.)
Remote retrieval of user data of an encrypted telecommunications tool and transfer of data of users located in the United Kingdom to authorities of that state (Art. 8) |
Ferrero
Quintana v. Spain (analysed here, and
here) |
The obligation to protect irregular female migrant workers from trafficking in human beings and servitude and to investigate crimes committed against them (Art. 4) |
ECtHR key cases 2024, ordered chronologically.
Developments of Convention Requirements
These cases have brought about significant developments in human rights requirements across the Convention. The developments inter alia included:
Victim Status/Locus Standi
Separate, less demanding criteria for associations to achieve locus standi in climate change cases (KlimaSeniorinnen, paras 498 and 502), compared to more demanding criteria for victim status of individuals, which take into account the exclusion of actio popularis from the Convention system. For individuals, there is a requirement of the individual being personally and directly affected, which includes: i) a high intensity of exposure to adverse effects, that is, a significant level and severity of risk of adverse consequences of governmental (in)action, and ii) a pressing need to ensure the individual’s protection, owing to the absence or inadequacy of the government’s measures to reduce harm (KlimaSeniorinnen, paras 487 and 488 with further considerations, see also Carême, paras 80-83).
The criteria for standing of associations are i) the association is lawfully established in the jurisdiction concerned/has standing to act there, ii) is ‘able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change’, and that iii) it can be regarded as genuinely qualified and representative to act on behalf of members or other affected individuals. The association need not show that the individuals on behalf of which they act would themselves have met the victim-status requirements (KlimaSeniorinnen, para. 502).
In the context of cross-border information-sharing, the Court held that there is no need to divulge incriminating information in order to establish victim status (A.L. and E.J., para. 114). That would constitute a disproportionate obstacle to the effective exercise of the right of individual application.
Lawfulness
In Ukraine v. Russia (re Crimea) [GC], the Court extensively relied on international humanitarian law to conclude that when the Russian Federation extended the application of its law to Crimea, it did so in contravention of the Convention. Therefore, Russian law in Crimea could not be considered ‘law’ within the Convention meaning, and ‘any administrative practice based on that law cannot be regarded as “lawful” or “in accordance with the law”’ (para. 946).
Further, in this situation, ‘at least after the enforcement of the “Accession Treaty”’, the courts in Crimea applied Russian law and delivered justice on behalf of the Russian Federation, and could thus not be considered to have been ‘established by law’ within the meaning of Article 6 (paras 1016-1022).
Extension of principles on the independence of domestic judiciary mutatis mutandis to international judges and courts (Aydin Sefa Akay, para. 113). When assessing the ‘lawfulness’ of the deprivation of liberty of an international judge, the Court in Aydin Sefa Akay, integrated international immunities into the Convention. Against the background of an assessment of the nature of the international judge’s immunity under the relevant instruments and public international law, it held that the ‘domestic courts’ interpretation of the applicant’s diplomatic immunity was neither foreseeable nor in keeping with the requirements of the principle of legal certainty under Article 5 § 1 of the Convention’ (Aydin Sefa Akay, paras 121-129).
Legitimate Aims or Interests
In Executief van de Moslims van België and Others, the Court clarified the question of whether animal welfare is covered by a legitimate aim under Article 9 of the Convention. The notion of public morals covered animal welfare (morals being an evolutive concept), and the Court also took into consideration an increased importance of animal welfare in Council of Europe member states (paras 90-102).
Substantive analysis of the protection of cultural and artistic heritage as a legitimate general interest under Article 1 of Protocol No. 1, in J. Paul Getty Trust and Others (paras 340-359).
Article 4 – Prohibition of Slavery and Forced Labour
In F.M. and Others, the Court elaborated far-reaching positive obligations in terms of criminalisation, which needs to comply with all the elements established by the Court for the definitions of ‘trafficking in human beings’, ‘forced labour’ (neither definition including restrictions of freedom of movement, forced labour involving an absence of voluntariness which may be fulfilled when the employer takes advantage of the workers’ vulnerability), and ‘servitude’ (paras 288-289). Further, the Convention requires that consent is irrelevant in the domestic legislation for establishing whether or not trafficking has occurred (paras 283-285).
The Court also established that the domestic authorities had failed to put in place an adequate legislative and administrative framework to prohibit and prevent the crimes and protect victims (paras 291-294), had not taken adequate operational measures to protect victims of trafficking (para. 305), and had failed in their duty to conduct an effective investigation (para. 330).
Article 6 – Right to a Fair Trial
Detailed criteria were established for when Article 6 is applicable in the context of a right to bring civil claims in the ambit of criminal proceedings (Fabbri and Others, paras 88-93, although these were criticised by several dissenting judges as being overly strict and formalistic when taking into account the differences in national procedural systems). The Court also considered the question of access to court in relation to such claims, establishing the relevance of pursuing such claims with due diligence (Fabbri and Others, paras 135, 137-140).
The case of Nealon and Hallam related to whether the presumption of innocence was violated in proceedings that refused the applicants compensation for miscarriage of justice following the quashing of their convictions. The Court revised its earlier case law distinction between acquittals and discontinuances with respect to the subsequent compensation proceedings linked to criminal proceedings (para. 166). Regardless of whether the subsequent linked proceedings ended in an acquittal or discontinuance, the relevant point is whether decisions and reasoning in these proceedings ‘amounted to the imputation of criminal liability to the applicant’ (para. 168).
The Court refrained from defining ‘miscarriage of justice’ in an Article 6 context, Article 6 not guaranteeing a person whose criminal conviction has been quashed a right to compensation for miscarriage of justice (compare Art. 3 of Prot. No. 7, which does not define that concept). Sates are free to decide how to define ‘miscarriage of justice’, and thereby establish which categories of people that are eligible for compensation, insofar as such a refusal of compensation would not in and of itself impute criminal guilt on an applicant (para. 172).
A test in the domestic legislation requiring a newly discovered fact to show beyond reasonable doubt that the person ‘did not commit the offence’ (avoiding the term ‘innocent’) was not inconsistent with the applicants’ continuing innocence in the legal sense (paras 179, 181). This conclusion was criticised by a number of dissenting judges, who found that the provision violated the presumption of innocence by allowing or requiring a reassessment of whether an applicant had committed a criminal offence, and creating a presumption that the applicants indeed did commit the offence. They also emphasised that the substantive test is what has mattered in the Court’s earlier case law, and noted that their concerns were not merely theoretical.
In the case of Bogdan, the Court held that credible allegations that the applicant suffered from withdrawal symptoms when he waived his right to a lawyer made the voluntary nature of his waiver open to doubt (para. 60). It was, therefore, for the domestic courts to establish that the waiver had been voluntary and valid (para. 61). Although the domestic law established a safeguard for involuntary waivers, the police had acted in a way which rendered the safeguard ineffective (para. 65). The deficiencies were not sufficiently remedied during the criminal proceedings as a whole, leading to a violation of Article 6 §§ 1 and 3 (para. 81).
A climate-change context does not change, but has implications for the application of the Court’s well-established case law principles on the applicability of Article 6 (KlimaSeniorinnen, para. 608). For instance, where the domestic law recognises a legally relevant relationship of causation between State actions/omissions and harm or risk of harm affecting individuals, a ‘civil right’ within the meaning of Article 6 may be at issue (para. 610), and the absence of strictly imminent harm should not by itself lead to the conclusion that the outcome of proceedings would not be decisive for its ‘alleviation or reduction’ (para. 614). The Court held that the applicant association’s right to access of court had been restricted in a way and to the extent that the very essence of the right had been impaired (paras 629-637).
Article 8 – Right to Respect for Private and Family Life
The Court established positive obligations on climate change under Article 8 (KlimaSeniorinnen). This included a duty to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible future effects of climate change (para. 545). Enumeration of requirements that the domestic authorities have to have due regard to (para. 550), mitigation measures to be supplemented by adaptation measures (para. 552), and domestic procedural safeguards relevant for determining whether the Contracting Parties remained within their margin of appreciation (para. 553).
A reduced margin of appreciation on setting the aims and objectives for combating climate change and its adverse effects, but a wide margin of appreciation as to the choice of means (para. 543).
In Pindo Mulla the Court emphasised the importance of individual autonomy with respect to a decision to refuse blood transfusion (paras 137-138, 146), concluding that the ‘decision-making process, as operated in this case, did not afford sufficient respect for the applicant’s autonomy’ (para. 183).
Article 1 of Protocol 1 – Protection of Property
In the context of a purchase of a cultural object – a bronze statue from the classical Greek period – the nature of the transaction justified a high standard of diligence on behalf of the buyer (J. Paul Getty Trust and Others, paras 381–383, 407).
Article 14 - Prohibition of Discrimination
In F.M. and Others, the Court, in relation to the State’s poor anti-trafficking efforts, recognised intersectional discrimination against the applicants as female foreign migrant workers in an irregular situation (paras 342-347).
Article 15 – Derogation in Time of Emergency
It is well established that states do not enjoy unlimited powers with respect to Article 15 derogations: the Court is empowered to review whether States have gone beyond the “extent strictly required by the exigencies” of the crisis. In Domenjoud, the Court established that only measures which present a strong enough connection with the aim sought with the derogation under Article 15 can be covered by that derogation (para. 154). The Government had not shown that the curfew of one of the applicants during the COP21 summit had been ordered as part of the French derogation, which concerned the fight against terrorism, and that the curfew was strictly required by the situation within the meaning of Article 15 § 1 (para. 155).
Article 18 – Limitations on Use of Restrictions on Rights
In Ukraine v. Russia (re Crimea) the Court held that Article 18, which provides for limitations of the use of restrictions of rights, cannot apply in conjunction with Article 7, due to the non-derogable nature of that guarantee (para. 1340).
Of course, not every key case developed the Convention rights requirements. For instance, in the key cases Dániel Karsai, M.A. and Others, Dian (dec.), and Executief van de Moslims van België and Others, no violation of the Convention was concluded – in Dian, the Court even rejected the applicability of Article 8. These cases did not, as such, establish significant new Convention requirements. Other cases insisted on victim status (Carême (dec.)), the exhaustion of domestic remedies (A.L. and E.J. (dec.); Duarte Agostinho and Others (dec.) [GC]), or refused to extend the existing interpretation provided by the case law on extraterritorial jurisdiction (Duarte Agostinho and Others (dec.) [GC]). Certain (aspects of) the key cases also reiterated well-established case law or well-known Convention principles.
Conclusion
This post has provided a succinct recap of the Court’s judicial year in terms of key cases. Its overview of case law developments is necessarily incomplete. Yet, this post has shown that although the key cases only provide a fragment of the Court’s judicial activity in 2024, they raised a broad range of substance matters and substantively clarified and developed the Convention interpretation for the years to come.