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.