L. and Others v. France: Sexist Judicial Bias, Himpathy and Victim-Blaming

Guest post by Margarita S. Ilieva, strategic international equality and human rights litigator

 

Introduction

In L. et Autres c. France, for the first time, the Chamber of the European Court of Human Rights has acknowledged that judicial reasoning which negatively stereotypes, blames and therefore revictimises (secondary victimisation) survivors of sexual violence (SV), is discriminatory. In its judgment, the Court considered three separate cases of sexual assaults on girls, finding positive duty violations of Articles 3 and 8 ECHR in all three. France had failed to apply, in practice, a criminal-law system capable of punishing non-consensual sexual acts against minors.  

In L. v. France, one of the three cases the judgment addressed, the Court also found a violation of Article 14 ECHR as the French judges had used ‘moralising and guilt‑inducing statements which propagated gender stereotypes’ amounting to ‘secondary victimisation’ and gender-based discrimination (this is the wording used in the Court’s summary in English). Such gender stereotypes were ‘ineffective’ and ‘infringed’ the survivor’s dignity. Previously, in at least two cases of sexual or sex-related gender-based violence, respectively, against a young woman (22) and a girl (18), whom domestic judges or criminal justice officials victim-blamed and stereotyped, the Court refused to even consider the survivors’ Article 14 allegations (J.L. v. Italy; M.Ș.D. v. Romania) It did the same in a workplace sexual harassment case of similar stereotyping (see details below). This post thus focuses on L. c. France, the instance in which the judgment is most innovative. 

Facts of the case

L., aged 13, was extremely vulnerable when multiple firefighters started sexually abusing her. She had suffered school harassment causing serious psychological issues, had left school, and was very socially isolated (paras 5, 16, 220 of the judgment). L. was heavily medicated against depression and anxiety, with numerous suicide attempts, self-harming, and psychiatric hospitalisations. She was having seizures, resulting in 130 interventions by firefighters/ first responders in her home (paras 6, 11, 15, 220-1). (In addition to providing fire protection and rescue, the French fire service is also one of the providers of emergency medical services (see here and here). L. admired and trusted those (4-14 years her seniors) as a ‘moral authority’. She felt she owed them. Her main abuser told her she must be ‘nice’ considering how many times they had aided her. L.’s abusers knew her age and medical record, including suicide attempts and self-harming. They disseminated her contact details in various firefighters’ barracks. She was involved in sexual acts with around 15 more men who knew her age. The abuse lasted 2 years.  

L. later stated her succumbing to it was like self-harming. Her neuroleptic medication (according to an expert, heavy doses capable of sedating her) had reduced her to a ‘vegetable’.  A psychiatrist confirmed her sexual involvement was self-punishing, like her self-mutilating; she was ‘susceptible’. Another expert found she needed ‘to debase herself’ and was ‘particularly easily influenced’. Her vulnerability was ‘perceptible by others, notably the firefighters’; her consent was not ‘informed’ (paras. 6, 10, 20, 221).

The policeman who first questioned L. repeatedly asked why she didn’t defend herself as a ‘woman being raped would’ (paras. 8 and 227). A magistrate found the sexual acts were established, however, no force was used. The accused maintained L. actively participated. Her psychological issues undermined her credibility regarding consent. No rape or assault was substantiated, merely sexual offences against a minor under 15. 

A court confirmed this decision. It held: the firefighters fascinated L., she sought their acquaintance; she was ‘active and provocative’; fellatio and her bringing condoms implied activity; her heavy medication did not show; she rejected one perpetrator and certain acts, accordingly, she was able to; her credibility was diminished, including by expert conclusions regarding her ‘pathology’; her ‘active participation in the frolicking’, her ‘hiding’ of her age, and her ‘morphology’ prevented a finding of violence, constraint, threat, or surprise required for rape/ assault; L’s ‘partners’ could not necessarily see her vulnerability; her self-harming scars did not show fragility during their contacts; firefighters’ ‘usual success with the female race’ and L.’s ‘sometimes unbridled’ behaviour ‘did not incite them to reflect’ (paras. 30-1, 217-218, 228).  

The Court of Cassation confirmed this reasoning as ‘free from insufficiency or contradiction’. During the proceedings, L. made several suicide attempts and was hospitalised. A magistrate acknowledged the proceedings’ detrimental impact, refusing certain investigative actions that could cause her to self-harm (paras. 224-5). 

The Judgment

The European Court of Human Rights reiterated its settled case law that Articles 3 and 8 require states to effectively punish all non-consensual sexual acts. Victims, especially children, may not be expected to physically resist. Lack of consent is decisive. Criminal proceedings regarding sexual crimes are often an ordeal for victims. Their rights must be protected, including their image, dignity, and private life. It is essential that courts abstain from reproducing sexist stereotypes, minimising gender-based violence (GBV), and exposing women and, a fortiori, children to secondary victimisation by using recriminating (culpabilisant) language discouraging victims from trusting the justice system. Children are entitled to protection from sexual abuse such as to prioritise their best interests, including appropriate support measures facilitating their recovery and social reintegration. The authorities must analyse the facts from a GBV angle; consider the psychological factors characteristic of rape cases; evaluate the victims’ state of mind; take account of the victims’, in particular, minors’, vulnerability; seriously assess the credibility of the differing versions of fact based on the relevant context (paras. 193, 195, 200-1, 211, 213).

The Court stressed L.’s extreme vulnerability as a 13-year-old at the time of the first acts, whose psychological fragility had led to 100+ first aid interventions by the firefighters in her home. She had been a victim of school harassment with grave psychological consequences, withdrawal from school, significant isolation, and heavy medication for recurring panic attacks and seizures. When she first met the accused, she had been hospitalised due to her self-harming and suicide attempts, which continued throughout the relevant period, including the proceedings. L.’s interest in the firefighters, bordering on obsession, rendered her particularly vulnerable to their attention and sexual demands (para. 220).

The Court found that in their appraisal of L.’s conduct, the French judges failed to make a contextual analysis, notably, of the power imbalance in her relationship with the accused. The judges altogether failed to consider the established fact that some of the accused knew L.’s age and medical record, or L.’s statements that the sexual acts with her main abuser were largely due to his demands once he had gained her trust and that of her parents during first aid interventions. The judges also took no account of the evidence supporting L.’s statements that she was considered an ‘easy sexual prey’ once her name was circulated in the barracks of the accused and in other barracks. They did not consider the effect of her particular vulnerability, including her psychological state, on her behaviour, including her documented ‘self-punishing’ tendencies, ‘need to debase herself’, and ‘particular suggestibility’ preventing her informed consent, which were visible to others. The domestic court’s reasoning was marred by grave deficiencies as regards L.’s capacity to really consent to repeated sexual acts with multiple men (paras. 221-2).

The proceedings lasted 11 years and 9 months, resulting in the eventual discarding of rape charges. This was unsatisfactory and conflicted with the requirement for particular diligence considering L.’s particular vulnerability manifested by suicide attempts during the proceedings, which the authorities were perfectly aware of (para. 224).

In terms of secondary victimisation, L.’s health status deteriorated during the proceedings. Additionally, at least twice, the authorities failed to protect her dignity by exposing her to guilt-inducing, moralising statements, and sexist stereotypes capable of discouraging victims from trusting the justice system (paras. 225-6).

A policeman indirectly reproached L. for not crying or physically defending herself. He caused L. to recognise her behaviour as inadequate and not what was purportedly expected from a rape victim. Such questioning was inappropriate, guilt-inducing and disqualifying L.’s word, and that at the decisive stage of receiving her complaint, when the authorities owed to be especially victim-supportive. It was also contrary to contemporary rape definitions, which include no physical resistance element (para. 227).

The gender stereotyping  reasoning by the domestic court described the facts in a grotesque and derogatory manner, referencing firefighters’ ‘usual success with the female race’ and L.’s ‘occasionally unbridled behaviour with them’. This reasoning aimed to exonerate the accused. The words used and their message were completely out of place. This gender stereotyping was both ineffective (‘inopérants’) in the Court’s view and infringed L.’s dignity (paras. 228-9).

These findings of secondary victimisation sufficed for a finding of discrimination as well. The judicial reasoning confirmed by the Court of Cassation was marked by gender discrimination, according to the European Court (para. 230).

To sum, the Court found that the domestic authorities’ failures in terms of diligence and expedition, as well as assessment of the reality of consent not only deprived L. of appropriate protection but also exposed her to secondary victimisation amounting to discrimination. 

Commentary

In the earlier cases of justice authorities victim-blaming and negatively gender stereotyping sexual abuse survivors, the Court, despite finding revictimisation, simply refused to address discrimination complaints (see this author’s commentary here, here, and here). L.’s case is the first one, in which the Court considered, and upheld, a discrimination allegation in such a case. This elevates its sexual assault impunity case law to its domestic violence impunity case law, in which, since Opuz v. Turkey (2009), it has regularly found not only discrimination, but institutional discrimination (‘general and discriminatory judicial passivity’, ‘overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors’, Opuz, paras. 198, 200).

L.’s is only the second case of sexual abuse impunity, after J.L. v. Italy, in which the Court recognised judicial sexist reasoning as revictimisation and as a breach of the ECHR per se. In two other cases (respectively workplace sexual harassment and online violence by a former partner (revenge porn), the Court recognised such stereotyping as stigmatising and revictimising, however, in a limited manner and not as a separate breach (M.Ș.D. v. Romania, paras. 147-8, see commentary; C v. Romania, paras. 83-5, see commentary).   

Possible Negative Obligations Violation 

The Court’s language, while not explicit, could be construed as (opening the door to) a finding that L.’s revictimisation by the justice authorities amounted to a violation of a negative obligation as opposed to a positive one. The judgment frames L.’s revictimisation amounting to discrimination as an additional breach, alongside the positive obligations aspect consisting of the ineffectiveness of the protection and domestic proceedings: the authorities ‘also exposed her to (‘l’ont aussi exposée à subir’) secondary victimisation amounting to discrimination’ (para. 232). The Court referenced the duty for domestic courts to avoid (‘éviter’) reproducing sexist stereotypes in their decisions (para. 229), which is rightly phrased as a negative obligation. 

However, this is unclear and even contradictory, as elsewhere the Court found that the authorities ‘failed their duty to protect [L.’s] dignity by exposing her’ to guilt-inducing and stereotyping statements, thusly apparently framing the breach as a positive (protection) duty breach (para. 226). Nevertheless, this ambiguity possibly implies an advancement compared to J.L. v. Italy, in which judicial revictimisation via sexist stereotyping was explicitly framed as a violation of a positive obligation, arguably a misnomer with the intent or effect of minimising the breach (critique by this author). Framing judicial reasoning as a positive duty breach also conflicts with other case law (listed here), including notably the recent H.W. v. France, in which a court stigmatised and penalised a wife for not performing her ‘marital duty’, which the Court expressly termed an interference to be examined from the angle of negative duties (para. 71-2). 

Judicial reasoning is an official act and should be acknowledged as an active infringement, i.e. a violation of a negative obligation, rather than mere passivity. A violation is a violation, whether of a negative obligation or of a positive one - that may be so. However, for a victim, the trauma of revictimisation is much more severe when judges or police themselves blame her and stereotype her as compared to when they fail to check defense lawyers or other private actors who do so. The severity of active official revictimisation should be acknowledged. Officials should be exposed as active wrong-doers.    

L.’s case is the second case of sexual abuse impunity and revictimisation, in which the Court affirmed that domestic judges must examine the credibility of the alleged perpetrator’s statements, as well as of the victim’s ones; the first case being X v. Grèce (para. 79). Previously, in J.L. v. Italy, it had validated the domestic courts’ exclusive focus on the victim’s credibility, holding that this question was ‘particularly crucial’ (para. 138). The Court was ‘prepared to admit that referring to her past relations with [the accused] or her behaviour during the evening could be justified’. Her account was inconsistent – the defence needed to cross-examine her and was entitled to contest her credibility, as long as they refrainedfrom using cross-examination to intimidate or humiliate her (paras. 126-8). In J.L. v. Italy, the Court ignored the judges’ omission to consider the accused’s credibility in light of the context and other evidence (see critique).  

Gaps: Himpathy and Anti-victim Bias in the Domestic Decision

The Court never acknowledged in L.’s case or other cases of sexual abuse survivors’ victim-blaming and revictimisation that the authorities’ gender stereotypes (possibly) affected the case outcome resulting in impunity instead of (proper) punishment (see J.L. v. Italy critique). However, judicial stereotyping of women and victim-blaming in GBV cases is a well-documented key obstacle to access to justice (see CEDAW and scholarship here and here). Stereotyping results in decisions based on [rape] myths rather than relevant facts, leading to miscarriages of justice, including revictimisation(CEDAW). Stereotyping compromises the impartiality and integrity of the justice system, causing judges to misinterpret ormisapply laws. This has far-reaching consequences in criminal law, resulting in perpetrators not being held legallyaccountable for violations of women’s rights, thereby upholding a culture of impunity (CEDAW).

Judicial stereotyping has a well-studied pernicious impact on VAW case outcomes (see). Judicial victim-blaming results ineffacing various forms of rape by constructing consent in the place of victimisation. This has allowed rape law to excludecertain forms of rape from recognition, reducing survivors’ suffering to a condition incapable of being legally articulated(see here).

Rape stereotypes and victim-blaming narratives pervasive in society and within law enforcement and judicial institutions,as well as in criminal justice outcomes, are the most significant reasons why women and girls do not report sexual violence. VAW is significantly underreported, underinvestigated, underprosecuted, and results in very few convictions. At the same time, violence against women, in particular, sexual violence, is ‘devastatingly pervasive’ (WHO), with France ranking high within Europe in prevalence of sexual offences (Eurostat).

The Court has itself admitted that judicial ‘leniency in punishing violence against women, instead of communicating a strong message to the community that violence against women will not be tolerated […] may in turn discourage victims from reporting such acts whereas according to the scarce data […] violence against women is worryingly common and remains seriously underreported (see the FRA’s report […] that one in ten women in the European Union has reported having been exposed to some form of sexual violence since the age of 15, whereas only about 14% of the victims of such conduct seem to report it)’ in Vučković v. Croatia (para. 65).

 

In another recent landmark case, I.C. v. Moldova, the Court found that the domestic courts had evaluated the evidence regarding sexual and other abuse of a woman with intellectual disabilities in a biased manner, reaching discriminatory conclusions. Their conclusions ‘seem[ed] to convey stereotypes, preconceived beliefs and myths about persons with disabilities lacking agency, about a woman’s role being that of a housewife who attends to the needs of a man and the family, and about the domestic work carried out by women lacking any economic value’. This also amounted to secondary victimisation and a failure to provide the necessary procedural accommodation. The Court held that the case outcome ‘clearly reflect[ed] a discriminatory attitude towards [I.C.] as a woman with intellectual disabilities’ (para. 220-1). It found unrebutted I.C.’s prima facie case of a general institutional passivity and/or lack of awareness of violence against women with disabilities in Moldova (para. 222).

 

In L. c. France, the Court expressly found that sexist judicial reasoning ‘aimed to exonerate’ the perpetrators (para. 228). It recognised that the reasoning amounted to gender discrimination. Effectively, these are findings of a lack of impartiality, of bias against the female victim and in favour of her male abusers. The Court found that the domestic judges had ignored victim-supporting evidence and exclusively used evidence favouring the accused. It held this amounted to ‘grave deficits’ (para. 222). Is it realistic that such deficits, including such overt bias, had no impact on the case outcome? The Court limited itself to the serious understatement that the sexist reasons were ‘ineffective’.    

Victim-blaming and Body-shaming 

The Court did not mention victim-blaming as an established concept in the relevant literatures, with its range of relevant connotations. It used instead, as in previous cases, ‘culpabilisant’ (guilt-inducing) regarding the recriminations, which is not fully the same.

Additionally, it failed to reference the French judges’ explicit body-shaming of L. as a part of their slut-shaming. They relied on her ‘morphology’ (sa morphologie) to suggest that her body shape was an element of her purported consent along with her alleged activity (para. 31). This amounted to suggesting that female forms per se imply consent (are ‘asking for it’). Particularly misogynyst and virulent as applied to a child, this should not have been let slide by the Court. 

Lack of Victim Support

While the Court held, as a general principle, that children, sexual abuse survivors, are entitled to protection, including support measures facilitating their recovery and reintegration (para. 201), it ignored the authorities’ failure to offer L. any such support – no psychological counselling, practical assistance, social intervention; no procedural adjustment to minimise the stress of the proceedings. The Court did find that L.’s health status had deteriorated during the proceedings, with more suicide attempts, which was a part of her revictimisation (para. 225). However, it did not examine the authorities’ complete passivity to mitigate that. Conversely, in the comparable X. v Greece, for example, the Court listed all the official omissions in terms of victim support measures to address X.’s needs (para. 86).

Conclusion

L. c. France is a seminal judgment, meriting to be designated a key case for 2025 (currently assigned level-2 importance). It levels up the case law on sexual GBV impunity to that on domestic GBV, laying the groundwork for the Court’s future acknowledgment of judicial anti-victim and pro-perpetrator sexist bias in sexual GBV cases as a pervasive, systemic issue structurally undermining women’s equality before the law and access to justice. 

New Special Issue ECHR Law Review

The first issue of the year of the ECHR Law Review has just been published (Vol. 6, Issue 1). This issue is a special issue entitled 'The New Agreement on the EU Accession to the echr: Can It Succeed?'. The issue contains an editiorial note and four research articles. All contributions provide an analysis of the Draft Agreement on the Accession (DAA) of the European Union (EU) to the European Convention on Human Rights from different perspectives. 

This is the table of contents:

* Vassilis P Tzevelekos, 'The EU’s Accession to the echr: The Future of the Revised Draft Accession Agreement and a Call to End the Bosphorus Doctrine'

* Christos Giakoumopoulos and David Milner, 'Accession of the European Union to the European Convention on Human Rights: A View From Inside the Council of Europe'

* Paul Gragl, 'The New Draft Agreement on the EU Accession to the echr: Overcoming Luxembourg’s Threshold'

* Tobias Lock, 'Implications of the Revised Draft EU Accession Agreement for the echr'

* Jörg Polakiewicz and Irene Suominen-Picht, 'Now or Never – One Year After the Closure of the Second Negotiation Round for the EU’s Accession to the echr: Will the Agreement Reached Suffice to Make Accession (Finally) a Reality?'

Judge Mattias Guyomar Elected President of the European Court of Human Rights

On 28 April 2025, the European Court of Human Rights (ECHR or the Court) elected Mattias Guyomar, Judge in respect of France, as its new President. He succeeds President Marko Bošnjak and will take up office on 30 May 2025. Judge Guyomar has served as a judge of the ECHR since 2022 and is currently a Section President. 

According to the Rules of Court, the President of the ECHR is elected by the plenary Court for a term of three years provided that such periods shall not exceed the duration of their terms of office as judges. His appointment as a President of the Court is expected to result in a full three-year term, marking the first time since 2019 that a President may complete the full mandate.

 

The President's duties include directing the work and administration of the Court, presiding over hearings and deliberations, and representing the Court in its external relations.

New Session of the MOOC on ECHR Starts Again on 6 May 2025

On 6 May 2025 Utrecht University's free Massive Open Online Course (MOOC) on the ECHR will start again! Registration is open now. To enroll, please go to the Coursera platform. 

The MOOC entitled 'Human Rights for Open Societies - An introduction into the ECHR' is taught by my Utrecht University colleagues professor Antoine Buyse and professor Janneke Gerards. This is the description of our six-week course:

'Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal. Equip yourself and learn more about what human rights are and how they work. 

In this course, we will introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. You will see when and how people can turn to the European Court of Human Rights to complain about human rights violations. You will learn how the Court tries to solve many of the difficult human rights dilemmas of today. We will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. And we will address the rights of migrants, refugees, and other vulnerable groups. And, of course, we will see whether it is possible to restrict rights and if so under what conditions. You will even encounter watchdogs and ice cream in this course. We invite you to follow us on a journey of discovery into the European Convention!'

Please watch this short introduction video to get an impression:

Hybrid Event on Women Judges in the ECHR

On 13 May 2025 at 18:30, the Academy for European Human Rights Proteciton of the University of Cologne is organizing a lecture entitled 'Gender and Justice: The Past and Future of Women Judges in the ECHR'. During this event, Professor Stéphanie Hennette-Vauchez (Université Paris Nanterre) will be discussing gender dynamics in the European Court of Human Rights. The event will be organized in an hybrid format. This is the description of the event:

'We are honoured to announce an upcoming lecture by Professor Stéphanie Hennette Vauchez, titled "Gender and Justice: The Past and Future of Women Judges in the European Court of Human Rights (ECHR)." This event will delve into the historical and prospective roles of women judges within the ECHR, offering a comprehensive analysis of gender dynamics in this pivotal judicial institution.

In her lecture, Professor Hennette Vauchez will discuss the evolution of gender balance within the ECHR, and the impact of increased female representation on the Court's jurisprudence and legitimacy. She will also address ongoing challenges and propose strategies to enhance gender equality in international judicial appointments.

This event promises to provide valuable insights for scholars, practitioners, and students interested in gender studies, human rights, and international law.'

Registration can be submitted here. 

Book on Gender and the Court

Sanna Elfving of the University of Lincoln (UK) has published the book Gender and the European Court of Human Rights with Routledge. Following her earlier work on the European Court of Justice, this book approaches the Strasbourg Court from a similar perspective. This is the abstract:

'In applying an intersectional feminist legal analysis of the European Court of Human Rights’ case law in a variety of human rights issues, this book reveals a different and nuanced understanding of the gender issues.

Case law within the ECtHR, which does not explicitly raise gender issues, may have gendered consequences. Profound developments have occurred in Europe in several related areas, including gender equality case law in the context of the prohibition of discrimination under Article 14 of the European Convention on Human Rights; non-conventional parenting rights; discrimination on grounds of sexual orientation and gender identity; rights of asylum seekers; and family reunification rights in the past few decades. The analysis reveals the extent to which the Court considers an applicant’s gender, intersectional inequalities, and the concept of ‘vulnerability’ in its case law. This book contributes to existing literature on gender equality, gender and judging in supranational courts. Furthermore, it highlights the intersectional discrimination experienced by women and diasporic or minoritised groups by uncovering new dimensions of vulnerabilities.

This book will be of interest to researchers in the field of European human rights law, gender, and intersectional issues.'

New ECHR Readings

Please find below a new selection of academic readings related to the European Convention on Human Rights and its Court:

* Mohammad Mohammadi, Martijn Wieling and Michel Vols, ‘An interpretable approach to detect case law on housing and eviction issues within the HUDOC database’, Artificial Intelligence Law (2025):

 

‘Case law plays a critical role in shaping our understanding of human rights, including the right to adequate housing. However, analyzing large legal databases like HUDOC, which contains over 40,000 cases, is a challenging task that requires automated solutions. This study focuses on detecting cases related to housing—a topic encompassing issues such as eviction, access to adequate housing and etc.—from the HUDOC database. For this, we developed classifiers to identify cases related to both housing and eviction issues. We first constructed a dataset using an unsupervised process refined through manual corrections. Then, we trained the Adaptive Chordal Distance-based Subspace Learning Vector Quantization models. These models achieved classification accuracies of 93% for housing-related cases and 91.5% for eviction-specific cases, matching the performance of transformer-based models while requiring fewer computational resources. Furthermore, they provide interpretability by assigning word-level importance scores, helping legal scholars understand and verify the reasoning behind the model’s predictions. The models identified 2,305 potentially housing-related cases. Manual reviews confirmed that 278 of 340 reviewed cases were indeed relevant. By detecting overlooked cases and enriching legal datasets, this study highlights the utility of NLP methods in facilitating the analysis of human rights case law. This approach supports a deeper exploration of housing rights and eviction-related decisions under the European Court of Human Rights (ECtHR), offering transparency, efficiency, and scalability for legal research.’

 

* Vladislava Stoyanova, ‘Review of Covid-19 measures by the European Court of Human Rights: How to avoid the ‘fair’, the ‘balance’ and ‘the fair balance’’ in In S. Bogojevic, and X. Groussot (eds), Constitutional Dimensions of Emergency Law (Hart/Bloomsbury 2025):

 

‘This chapter takes account of the judgments, the decisions and the communicated cases since March 2020 up to March 2024, that directly relate to the measures taken during the Covid-19 crisis. To assess them, the analysis is informed by the established standards in the ECtHR case law.’

 

* Edward Jones, ‘Revisiting Redfearn: The European Convention on Human Rights and the protection of political opinion in the workplace in Great Britain’, European Labour Law Journal (2025):

 

‘In Redfearn v the United Kingdom, the European Court of Human Rights held that it was incumbent on the United Kingdom to introduce measures to provide for protection from dismissal for employees on the grounds of political opinion or affiliation, regardless of their length of service. This resulted in a small but significant reform in employment law in Great Britain, namely the disapplication of the continuous service requirement for bringing an unfair dismissal claim where an employee is dismissed because of their political opinion or affiliation. In this article I argue that there is a positive obligation upon the UK to go further than what was required under Redfearn, namely, to provide judicial safeguards where non-employee workers are dismissed or applicants refused employment on (in either case) political grounds. The article provides an overview of the scope of workplace protection against detrimental treatment on political grounds in the UK. It considers this framework against the UK's obligations as a Member State of the International Labour Organization and the Council of Europe and notes that the issue is becoming more pressing with the development of social media. The article concludes by arguing that the UK should legislate to create gateway claims (or extend existing jurisdictions) for dismissed workers and disappointed applicants who consider that they have been subjected to such detrimental treatment on political grounds. Whilst the article focuses on the UK, its arguments can be extended to other Council of Europe member states which do not already provide such protection.’ 

 

* Christina Eckes, ‘“It’s the democracy, stupid!” in defence of KlimaSeniorinnen’, ERA Forum (2024):

 

‘Small numbers of litigants asking a small number of unelected judges to impose limits on majoritarian decision-making stands at least prima facie in tension with majoritarianism as a central legitimizing principle of democracy in Europe. In KlimaSeniorinnen, the European Court of Human Rights required the Contracting Parties to quantify a fair share national carbon budget. Several aspects of the ruling demonstrate great deference to the national democratic process: how the Court emphasized climate exceptionalism, extended NGO standing, reduced the States’ margin of discretion in relation to their (international) climate commitments, and approached extraterritoriality.’

 

* Arnfinn Bårdsen, ‘Chapter 18: A view from the European Court of Human Rights’ in Graham Butler (ed), Research Handbook on EEA Internal Market Law (Edgar Elgar 2025):

 

‘To what extent can an EFTA-EEA state be held responsible under Article 1 of the European Convention on Human Rights (ECHR) for the EFTA Court’s rulings, either because of structural weaknesses relating to the EFTA Court itself, or because of the state’s active participation in proceedings before the EFTA Court? To what extent can an EFTA-EEA state be held responsible under the ECHR for its own implementation of EEA law at domestic level, notably whether the protection of fundamental rights in EEA law implies the applicability of the Bosphorus presumption in the context of an EFTA-EEA state’s implementation of EEA law? It is these considerations in mind that are the essence of this chapter, offering a view from the European Court of Human Rights (ECtHR).’

  

* Katalin Sulyok, ‘Verein Klimaseniorinnen Schweiz and Others v. Switz. (Eur. Ct. H.R.)’, International Legal Materials (2025):

 

‘On April 9, 2024, the Grand Chamber of the European Court of Human Rights (ECtHR or the Court) seated in Strasbourg released its judgment in the Verein KlimaSeniorinnen Schweiz v. Switzerland case, which marks the first occasion where the Court found a violation of several rights of the European Convention on Human Rights and Fundamental Freedoms (Convention) in a climate change litigation case.’ 

 

* Evelien Timbermont and Louize Hannah Knops, ‘Judges’ free speech on social media: Theory versus practice? A theoretical and empirical study of judges’ freedom of expression on social media platforms’, European Labour Law Journal (2025):

 

‘This article analyses the multifaceted issue of judges’ freedom of expression on social media within the framework of the European Convention on Human Rights (ECHR). The engagement by judges in public discourse has resulted in the potential for conflicts to arise between their right to freedom of expression and their duty of discretion. This article examines the European Court of Human Rights (ECtHR) case law concerning Article 10 of the ECHR, which protects freedom of expression, and the distinctive constraints applicable to judges in light of their role. By means of a comprehensive analysis of recent ECtHR cases, including Danilet v Romania, the article demonstrates how the exercise of judicial freedom of expression is moderated by the context and subject matter of the expression, particularly when conveyed via social media. Furthermore, the article assesses the impact of these constraints on the judicial conduct of Belgian judges, with a particular focus on their use of social media and adherence to professional standards, particularly within labour courts and labour tribunals. The research findings indicate that, while existing guidelines provide a foundation, the application of these standards by judges is influenced more by personal and professional ethical considerations than by ECtHR jurisprudence. Furthermore, many judges are reluctant to accept a hierarchy-based approach to the protection enshrined in the right to freedom of expression. This article advocates for further research across a range of legal jurisdictions to refine guidelines on judges’ freedom of expression on social media. Ultimately, this should ensure a balance between democratic freedoms and judicial responsibilities in an evolving digital landscape.’

Protecting the Voice of Lawyers in Courtrooms: Pisanski v. Croatia and its Aftermath

By Naz Yılancıoğlu (Maastricht University)

On 4 June 2024, the Chamber of the European Court of Human Rights (ECtHR) rendered an important judgment in Pisanski v Croatia, which sheds light on the protection of lawyers’ freedom of expression when representing their clients in court.

Lawyers play a significant role in facilitating access to justice, protection of rights, and ensuring state accountability. However, across Europe, and beyond, lawyers are increasingly targeted for doing their jobs—defending clients, criticising judicial decisions, and speaking out. This worrying trend not only threatens the independence of the legal profession but also undermines the broader justice system.

Against this backdrop, there has been growing debate about the role of lawyers within the European Convention on Human Rights (ECHR) system, as well as the protection of the rights of lawyers to effectively fulfil their advocacy functions. On 12 March 2025, the Council of Europe (CoE) adopted the first-ever international treaty aiming at protecting the profession of lawyers: the Convention for the Protection of the Profession of Lawyer. The Convention will be opened for signature on 13 May 2025 during the annual session of the Committee of Ministers of the CoE.

According to the Explanatory Report of the Convention, it was prompted by a growing number of attacks on the legal profession, including harassment, threats, physical assaults, and interference with the exercise of professional duties. The protection of lawyers' freedom of expression is specifically addressed under Article 7 of this Convention.

In parallel with this significant development, the ECtHR has already received many applications from different member states about the protection of lawyers’ freedom of expression in their professional capacity. The ECtHR delivered many important judgments by emphasising the central position of lawyers in the administration of justice, including Čeferin v. Slovenia, Radobuljac v. Croatia, Rodriguez Ravelo v. Spain, and Morice v. France.

A notable example from last year of interference with lawyers’ freedom of expression can be found in the ECtHR’s judgment in Pisanski v Croatia. While the case may appear modest in comparison to more prominent rulings, it addresses a profoundly important issue: the right of lawyers to speak freely in the courtroom without fear of sanction.

Pisanski v Croatia: A Case Overview

In Pisanski v Croatia, the Chamber found a violation of the freedom of expression of lawyers under Article 10 of the ECHR. Viktor Pisanski is a lawyer in Croatia who was fined HRK 2,000 (approximately €265) for contempt of court after making critical remarks in an appeal he filed during enforcement proceedings on behalf of a client. His statements were not directed at any specific judge but concerned the interpretation of the relevant domestic law by the Zagreb County Court. In his appeal, Pisanski stated:

“It is incredibly difficult to draw up a meaningful and concise appeal when you are faced with someone in a position of power who, solely because of that position, persuades ‘the subordinates’ that the sea is red, the sky is yellow, and the sun is green...”

The ECtHR stated that the fine constituted an interference with Pisanski’s freedom of expression. Having found that the interference was prescribed by law and pursued a legitimate aim, the Court proceeded to the third step of the Article 10 analysis—assessing whether the interference was ‘necessary in a democratic society’. To conduct this assessment, the Court relied on four guiding principles it had previously established in Radobuljac v. Croatia, a case that also involved the freedom of expression of a lawyer (para. 56-61). Pisanski was not the first adverse judgment against Croatia on this issue, and the Court drew on its existing jurisprudence. Therefore, in Pisanski, the ECtHR identified a repetition of the very same violation it had already addressed in Radobuljac v. Croatia.

The four principles reaffirmed by the ECtHR are as follows: firstly, due to the special role of lawyers, there should be enough space for lawyers to defend their clients' interests zealously. The ECtHR also stated in its Morice v. France judgment that lawyers are protagonists in the justice system, involved both in its functioning and in the defense of parties. Secondly, the courts are not entitled to be free from criticism and, like other public authorities, must tolerate a higher level of criticism than individuals. Thirdly, it is important to differentiate between criticism and insult. Lastly, remarks of lawyers must be assessed in context, for example, whether they are made in public or before national courts. For statements made in court and during trials, the scope of the freedom of expression is interpreted broadly by the ECtHR.

When the ECtHR applied these principles to the Pisanski v Croatia case, it found that Pisanksi’s remarks fell within the scope of protection under Article 10 of the ECHR. This was because the sanction imposed on him stemmed from statements made in his capacity as a lawyer, in a petition aimed at defending his client’s rights (para. 70). Although the language used by Pisanski may have been discourteous, the Court reiterated that Article 10 tolerates a certain degree of sharpness in tone, especially in the context of legal representation (para. 71). It also stressed that such expressions should be distinguished from insults or defamatory remarks.

Accordingly, the ECtHR decided that interference was not “necessary in a democratic society” as the domestic authorities failed to provide “relevant and sufficient” justifications for the fine (para. 73). According to paragraph 73 of the judgment, a fair balance was not struck between the need to protect the authority of the judiciary, specifically that of the courts, and the protection of lawyers’ freedom of expression. Therefore, the sanction imposed on Pisanski was not necessary in a democratic society.

In the judgment, the Court did not indicate any specific remedies for the Croatian national authorities to remedy the violation. Like the majority judgments of the ECtHR, it only described the scope of the violation and its causes. This leaves Croatia with broad discretion to determine the appropriate measures necessary to remedy the breach under the supervision of the Committee of Ministers.

Execution of the Judgment: Structural Problem or Isolated Case?

The judgment became final on 4 September 2024, and was subsequently transferred to the Committee of Ministers. The CoE’s Execution Department classified it as a leading judgment, which means it identifies a new or structural problem.

The recognition of lawyers’ freedom of expression individually as a leading case in the supervision process by the Execution Department is very valuable because lawyers represent their clients’ rights and interests, and this may extend their own freedom of expression. The Execution Department often categorises leading cases based on the applicants’ professional roles, such as journalists and judges. Recognising lawyers in this framework acknowledges their critical function and the need for targeted protective measures. In this context, it would be appropriate to consider what specific reforms are needed to enhance protections for lawyers’ freedom of expression.

As part of the routine procedure for executing the judgment, Croatia submitted an action plan, which explains its intended response to the violation, including both individual and general measures. Regarding individual measures, Croatia explained that the applicant has the option to seek the reopening of the impugned proceedings. Since the ECtHR did not award any just satisfaction, the Croatian national authorities indicated that no financial compensation would be provided.

Regarding general measures, Croatia has provided case law of Croatian courts, including decisions from the Constitutional Court and Supreme Court, in alignment with Pisanski v. Croatia. However, all six judgments submitted as examples predate Pisanski v. Croatia. This indicates that, until now, no specific changes have been implemented in response to the Pisanski judgment itself.

Notably, the same underlying problem—interference with lawyers’ freedom of expression in courtrooms—had already been highlighted in Radobuljac v. Croatia, which was decided eight years prior to Pisanski. In its action report for Radobuljac, Croatia characterised the violation as an “isolated case” and provided sample judgments to support that position. Based on these representations, the Committee of Ministers closed its supervision of Radobuljac in 2018.  

However, Pisanski’s complaint arose after the closure of supervision of Radobuljac v. Croatia, raising the question of whether the measures taken following Radobuljac were adequate to prevent similar violations. The recurrence of the same type of violation shows that changes in case-law alone are insufficient and that stronger, more systematic protections for lawyers are needed. This kind of interference with the rights of lawyers is not an isolated issue but a widespread problem affecting legal professionals in many Member States, even in consolidated democracies.

This raises an important question: What general measures are necessary to safeguard lawyers' freedom of expression? This is not only a matter of concern for lawyers in Croatia but also for those practising in the forty-five other Member States of the CoE. Can simply providing examples of national case-law and disseminating the Pisanski judgment be sufficient?

Civil Society’s Missing Voice: Where Are the Bar Associations?

So far, the judgment has not received significant attention from national actors. Under Rule 9(2) of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlement, NGOs and national human rights institutions (NHRI) can submit relevant communication to the Execution Department.

Likewise, Rule 9 allows bar associations to submit communications regarding the execution of specific cases. However, in the Pisanski case, no submissions have been made by any NGOs, NHRIs, or bar associations.

Given the relevance of this case, it may be time for the Croatian Bar Association and perhaps for other bar associations to engage actively in the supervision process by sending Rule 9 communications to the Committee of Ministers. For example, submitting data on how many lawyers have faced similar penalties could shed light on the systemic nature of the problem and influence the Committee of Ministers' evaluation of the adequacy of the proposed measures.

Conclusion: Turning Principles into Practice

Pisanski v. Croatia is just one example among others, and it concerns the freedom of expression of a lawyer to represent his client. Lawyers must be able to critique judicial decisions and advocate assertively without fear of punishment. Otherwise, the entire justice system risks being undermined.

The adoption of the Convention on the Protection of the Profession of Lawyer represents a welcome step towards addressing these issues at a structural level. Article 7(2) of the Convention explicitly recognises that lawyers, individually or collectively, have the right to take part in public discussion on judicial decisions.

But the real test lies in practice: will states take meaningful steps to implement ECtHR judgments like Pisanski? Will professional organisations engage proactively in the execution process to hold governments accountable?

Restrictions on the freedom of expression of lawyers, even when affecting lawyers individually, are not isolated incidents. Rather, they reflect a broader, systemic issue—one that requires structural solutions and sustained institutional attention.