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.