Academics and legal practitioners unanimously agree that two of the main justifications for protecting free speech are autonomy and democracy. Free speech contributes to both the self-development of individuals, as well as to robust democratic processes, and should therefore be protected. This is also the position of the European Court of Human Rights (ECtHR). However, the explicit endorsement of both justifications might give rise to normative questions regarding its protection of commercial speech. While the Court has acknowledged that commercial (...) speech does not contribute significantly to self-development nor democracy, it still awards that form of speech a relatively high level of protection. Moreover, a compelling case can be made suggesting that some forms of commercial speech, such as commercial advertising, might even harm those values. This argument is investigated closely to demonstrate an internal contradiction within ECtHR jurisprudence, between its rhetoric focused on respecting autonomy and democracy, and its practice that might in reality undermine these values. (shrink)

Courts are often criticised as undemocratic. The backlash against international courts in the last decade is also partly driven by this concern. Human rights courts’ legitimacy is particularly challenged because they aim to protect human rights against the very states that need to comply with and implement the courts’ judgements. Therefore, several international courts have developed mechanisms of deference to states. One especially interesting tool is the European Court of Human Rights’ margin of appreciation doctrine. This paper proposes that the (...) margin of appreciation can ensure the conditions of personal autonomy by protecting human rights while respecting the democratic decisions of states. Yet, states’ decisions should only be respected insofar as they realise political autonomy. Understanding the margin in this way allows us to critically evaluate arguments made under this label. The paper reviews developments in the ECtHR practice with regard to (a) different cases that use the margin of appreciation doctrine, (b) appeals to a European consensus, and (c) the procedural turn in its review and assesses whether and how they can be justified in the light of considerations about personal and political autonomy. (shrink)

This book investigates whether treaty interpretation at the ECtHR and WTO, which are sometimes perceived as promoting 'self-contained' regimes, could constitute a means for unifying international law, or, conversely, might exacerbate the fragmentation of international law. In this regard, the practice of the ICJ on treaty interpretation is used for comparison, since the ICJ has made the greatest contribution to the development and clarification of international law rules and principles. Providing a critical analysis of cases at the ICJ, (...) class='Hi'>ECtHR and WTO, both prior to and since the adoption of the 1969 Vienna Convention on the Law of Treaties, the book reveals how the ECtHR and WTO apply the general rules of treaty interpretation in patterns which are similar to those used by the ICJ to address difficulties in interpreting the text of treaties. Viewed in the light of the ECtHR's and WTO's interpretative practices, both the VCLT's general rules of interpretation and the ICJ's interpretative practice serve to counteract the fragmentation of international law.. (shrink)

This essay, between serious and facetious, addresses an apparently secondary implication of the planetary tragedy produced by Covid-19. It coincides with the ‘problem of the veil,’ a bone of contention in Islam/West relationships. More specifically, it will address the question of why the pandemic has changed the proxemics of public spaces and the grammar of ‘living together.’ For some time—and it is not possible to foresee how much—in many countries people cannot go out, or enter any public places, without wearing (...) a sanitary mask. In short, almost all of us, by obligation or by urgent advice from the public authorities of the various countries, will not live the public sphere with our faces uncovered. The alteration of the social context affecting many Western countries will inevitably involve also the ‘local’ perception of the Islamic veil and—as a matter of equality—the consistency of the prohibition of wearing it. What will thus become of the ban on wearing it in public places established by some countries such as France and asseverated by the ECHR? If everyone can and will have to go around with their faces covered, why should only Islamic women be discriminated against? Will not the change in boundary conditions produced by Covid-19 also induce Western people to re-categorize the meaning of the veil? And will this re-categorization not directly affect the ‘fact’ of wearing the veil, that is, its empirical perception? And still, will this psycho-semantic change not show how empirical perceptions are cultural constructs rather than ‘objective facts,’ as such allegedly independent from the observer’s point of view? Consequentially, will the plurality of perceptions and cultural meanings related to the gesture of covering one’s own face not gain renewed relevance in determining the legitimacy of wearing the veil? The socio-semantic earthquake produced by Covid-19 compels us to rethink this and other issues orbiting around the translation of ‘facts’ into legal language; furthermore, it highlights the instrumentality of many ideological/partisan and ethnocentric assumptions passed off as objectivity regarding those alleged ‘facts.’ The essay will attempt to provide an answer to the above questions by proposing a semiotic-legal approach to intercultural conflicts and, indirectly, the pluralism in law. (shrink)

This book addresses the European Court of Human Rights’ fairness standards in criminal appeal, filling a gap in this less researched area of studies. Based on a fair trial immediacy requirement, the Court has found several violations of Article 6 of the European Convention on Human Rights at the appellate level by at least eighteen States of the Council of Europe in a vast array of cases, particularly in contexts of first instance acquittals overturning and of sentences increasing on appeal. (...) -/- On the one hand, the book critically engages this case-law with the law revisions it has recently inspired in European countries, as well as with the critiques and difficulties that it continues to raise. On the other hand, it interweaves insight from criminal procedure theory with new discoveries in the field of cognitive sciences (neuroscience of memory, philosophy of knowledge, AI), shedding an interdisciplinary light on the (in)adequacy and limits of the Strasbourg Court’s jurisprudence. (shrink)

The wording of major human rights texts—constitutions and international treaties—is very similar in those provisions, which guarantee everyone the right to family, privacy, protection against discrimination and arbitrary detention, and the right to access the court. However, judges of lower national courts, constitutional judges and judges of the European Court of Human Rights often read the same or seemingly the same texts differently. This difference in interpretation gives rise not only to disputes about the hierarchy of interpretative authorities, but to (...) more general disputes about limits of judicial construction and validity of legal arguments. How it may happen, that the national courts, which apply constitutional provisions or provisions of national legislative acts, which are seemingly in compliance with the international human rights standards, come to different results with the international judges? Do they employ different interpretative techniques, share different values or develop different legal concepts? Do international judges ‘write’ rather than ‘read’ the text of the Convention? Who is, in Plato’s terms, a name-giver and who has a power to define the ‘correctness’ of names? The answers to these questions from the rhetorical and semiotic perspectives are exemplified by the texts of the judicial decisions on the rights of persons with mental disabilities. (shrink)

Legal battles continue in the UK over the Government’s plans to transport asylum seekers arriving on British shores to Rwanda in East Africa. Originally announced as a system for ‘processing’ asylum seekers, the Government has subsequently made it clear that there would not be an option for asylum seekers to return to the UK. The arrangement forms part of a deal between the UK and Rwanda, with the UK promising to invest £120 m in economic growth and development in Rwanda, (...) along with financing the cost of the ‘offshored’ asylum operation.1 The Government states that the policy is designed to break the business model of people traffickers involved in facilitating hazardous trips across the Channel in small, overcrowded and unseaworthy craft, leading to multiple drownings. Critics argue that the policy will do nothing to stop desperate people from seeking refuge in the UK, that transferring already traumatised people to Rwanda – which has been criticised for its human rights record – is inhumane and potentially outwith international law. Medical bodies, including the BMA, along with refugee organisations have expressed serious concerns about the health impact of such a system of ‘offshoring’. An equivalent system in Australia has been notorious for the devastating health impacts on those ‘offshored’ to the Pacific islands of Manus and Naura. Unusually in the UK the offshoring proposals have been greeted by unanimous condemnation by the Church of England. The lawfulness of the process is also subject to question. On the 14 July, a plane carrying a small number of asylum seekers to Rwanda was halted shortly before take-off following an intervention by the European Court of Human Rights. The ECtHR, part of the Council of Europe, of which the UK is still a member, said an Iraqi man known as KN faced ‘a real …. (shrink)

This paper draws upon contemporary feminist philosophy in order to consider the changing meaning of privacy and its relationship to identity, both online and offline. For example, privacy is now viewed by European Court of Human Rights (ECtHR) as a right, which when breached can harm us by undermining our ability to maintain social relations. I briefly outline the meaning of privacy in common law and under the European Convention on Human Rights (ECHR) in order to show the relevance (...) of contemporary feminist thought, in particular the image of selfhood that stresses its relationality. I argue that the meaning of privacy is in the process of altering as a result of a number of contingent factors including both changes in technology, particularly computer mediated communication (CMC), and changes in the status of women. This latter point can be illustrated by the feminist critique of the traditional reluctance of the liberal state to interfere with violence and injustice within the “privacy” of the home. In asking the question: “how is the meaning of “privacy” changing?” I consider not only contemporary legal case law but also Thomas Nagel’s influential philosophical analysis of privacy. Nagel’s position is useful because of the detail with which he outlines what privacy used to mean, whilst bemoaning its passing. I agree with his view that its meaning is changing but am critical of his perspective. In particular, I challenge his claim regarding the traditional “neutrality of language” and consider it in the context of online identity. (shrink)

This article takes a closer look at intimate partner violence (IPV) and its semantical, political, and legal interactions with crisis and crisis discourse. Starting from the fact that IPV has been called a “shadow pandemic” and a “hidden crisis”, the article conceptualizes two parallel phenomena: how the COVID-19 pandemic — and crises in general — impact on IPV by exacerbating vulnerabilities and how crisis discourse has been mobilized to argue for a responsive state and strong positive obligations to combat and (...) reduce IPV. The article then draws a parallel between crisis discourse and vulnerability reasoning, analyzing how vulnerability has played a similar role within the case law of the European Court of Human Rights (ECtHR) and led the latter to develop a consistent strand of case law concretizing states’ positive obligations. The article also takes a critical stance, examining the risks of crisis discourse and vulnerability when viewed through a crisis lens. To counter these risks, it argues for a nuanced, structural, and dynamic understanding of vulnerability and a focus on resilience-building institutions and mechanisms. Within the ECtHR case law, this signifies elaborating upon the already existing positive obligations, including by taking inspiration from the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). Such an approach is necessary to leave behind the emergency time usually associated with crises and work toward lasting structural change. (shrink)

The European Court of Human Rights (ECtHR) boasts one of the strongest oversight systems in international human rights law, but implementing the ECtHR’s rulings is an inherently domestic and political process. This article begins to bridge the gap between the Court in Strasbourg and the domestic process of implementing the Court’s rulings by looking at the domestic institutions and politics that surround the execution of the ECtHR’s judgments. Using case studies from the UK and Russia, this article (...) identifies two factors that are critical for the domestic implementation of the Court’s rulings: strong domestic, democratic institutions dedicated to implementing the ECtHR’s judgments and an overarching sense of responsibility to set a good example at home and abroad for respecting human rights and the rule of law. This article concludes with a discussion of the steps necessary to facilitate better implementation of the ECtHR’s rulings. (shrink)

The treaty of Lisbon makes European Union (EU) accession to the European Convention on Human Rights (ECHR) an obligation of result. The issue has been intensely discussed for more than thirty years, arguing that such accession is necessary in view of the need to ensure the ECHR standard of fundamental rights protection in Europe. This question again gains prominence as the EU member states and the institutions seek to agree on the negotiation directives of EU accession to the ECHR. The (...) process brings up the difficulties involved in creating a mechanism which would both facilitate the autonomy of the EU legal order and enable individuals to bring claims against the EU to the European Court of Human Rights (ECtHR). This involves the questions how it would be possible to ensure quick access to justice, and whether the ECtHR would continue to apply the doctrine of equivalent protection in relation to EU even after the latter becomes bound by the ECHR. The article argues that EU accession to the Convention is a prominent political step ensuring coherence of human rights protection mechanism in Europe. (shrink)

Proportionality is a German, and thus continental European, concept in public law that is applied by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The principle specifies that measures adopted by executive authorities should not exceed the limits of what is appropriate and necessary in order to achieve legitimate objectives in the interest of the public. Using a functional comparative approach, this book evaluates the extent to which proportionality has (...) been integrated into the English and Hong Kong judicial systems by comparing case law in these courts with that of the CJEU and the ECtHR. The text also reviews the development of proportionality and presents a topical understanding of why its adoption and application have encountered difficulties, particularly regarding socio-economic rights, in some jurisdictions, such as the United Kingdom and Hong Kong. Written by a scholar with experience from both within the Hong Kong judicial system and from international research, this book is the first all-encompassing reference for legal practitioners worldwide." -- Provided by publisher. (shrink)

The right to ‘domestic remedies’, which ideally connects ‘subsidiarity’ and ‘embeddedness’ of the ECHR in the legal systems of member States, is deemed to play a crucial role for the Strasbourg machinery survival as well as for an effective protection of human rights, especially in the field of the ‘reasonable-time’ requirement. In this respect the Italian case seems an excellent test. Once a compensatory remedy was introduced in the Italian legal system by Law No. 80 of 2001 (the ‘Pinto Act’), (...) it soon appeared that such a remedy could be considered ‘effective’ in so far as it was implemented in accordance with the ECtHR’s jurisprudence. Therefore a legal tool for the interaction between ECtHR and Italian courts had to be found. Nevertheless, the results of this interaction might suggest that the domestic remedy has neither increased the protection of the reasonable-time requirement in Italy nor is it the final solution to the ECtHR’s overload. (shrink)

This contribution considers the case law of European Court of Human Rights (ECtHR) and focuses on the extent to which the Contracting Parties to the European Convention on Human Rights (ECHR) can regulate the tobacco, alcohol, and food industries in a manner compatible with their ECHR obligations. After briefly presenting the two key cases dealing specifically with tobacco advertising, this contribution considers the main factors that the ECtHR takes into account when balancing competing concerns, and in particular freedom (...) of commercial expression and public health protection. It concludes that none of these factors is absolute, as the Court considers the strength of each one of them on the facts of each case. Nevertheless, it is clear from its case law that States have a wide margin of appreciation to regulate marketing practices that are inimical to public health and the prevention of non-communicable diseases more specifically, to the extent that even extensive advertising restrictions can be compatible with Article 10 of the ECHR. (shrink)

The Baltic States – Estonia, Lithuania and Latvia – are democratic states of law that respect human rights. As members of the Council of Europe, they implemented into domestic law the Convention on the Protection of Human Rights and Fundamental Freedoms (known as the European Convention on Human Rights) – an international document for the universal protection of human rights adopted by the Council of Europe. The aim of the paper is to analyze whether and to what extent did Estonian, (...) Lithuanian and Latvian citizens file individual complaints to the European Court of Human Rights over the past thirteen years (2006–2018). The paper is to answer the question if the Baltic Sates’ systems of human rights protection are effective. One of the indicators of effectiveness is the number of complaints brought from the Baltic States to the ECtHR in relation to the number of inhabitants and also in comparison with the total number of complaints from the 47 member states of the Council of Europe as whole. The analysis will cover statistics on the number of judgments in Estonian, Lithuanian and Latvian cases before the Court in Strasbourg issued between 2006 and 2018. This will be helpful in determining the degree and the type of violations by the Baltic States of the human rights protected by the European Convention on Human Rights. (shrink)

Despite its absence in the written text of the European Convention on Human Rights, the European Court of Human Rights now regularly uses the concept of autonomy when deciding cases concerning assisted dying, sexuality and reproductive rights, self-determination, fulfilment of choices and control over body and mind. But is the concept of autonomy as expressed in the ECtHR reasoning an appropriate tool for regulating reproduction or medical practice? Caring Autonomy reveals and evaluates the type of individual the ECtHR (...) expresses and shapes through its autonomy-based case law. It claims that from a social and ethical perspective, the current individualistic interpretation of the concept of autonomy is inadequate, and proposes a new reading of the concept that is rooted in the acknowledgment and appreciation of human interdependence and the importance of interpersonal trust and care. (shrink)

Russia’s relations with the European Court of Human Rights since the time of Russia’s accession to the Council of Europe have received a lot of attention on the part of academic scholars, practitioners, and media. Research on the ECtHR became especially important in the context of the twentieth anniversary of Russia’s acceptance of ECtHR jurisdiction that coincided with the unprecedented worsening of relations between Russia and the European countries due to the 2014 Crimea annexation. With voices that consistently (...) advocate Russia’s exit from the CoE, we believe it necessary to examine Russia-ECtHR relations as they are presented in the academic narrative. Drawing mostly on Russian-language sources, we want to highlight the variety of overarching themes and arguments relating to the crisis caused by the 2015 Constitutional Court Decision. We would like to examine various dimensions of this “crisis,” in order to be able to conclude whether Russia’s reaction to the Markin case and cases of non-compliance that followed was indeed part of a broader strategy of “backlash against international courts” we are currently witnessing worldwide. In the conditions when Russia’s exit from the Council of Europe is as likely as ever, the possibility of the “snowball effect” on the part of other member states threatens undermine the very raison d’être of the European human rights protection system. (shrink)

The European Court of Human Rights ("ECtHR") has a distinguished track record. Established under the European Convention on Human Rights 1950 ("ECHR"), it was the world's first international human rights court. It decides thousands of cases every year, and its opinions are cited world-wide. For most of its history, the Court's jurisprudence on equality was uninspiring, as it was based on a formal conception of equality. In recent years, however, the ECtHR has begun to give equality more substantive (...) content. (shrink)

The article examines the practice of the applicability of the Article 18 of the International Covenant on Civil and Political Rights (hereinafter—ICCPR) and Article 9 of the European Convention on Human Rights and Fundamental Freedoms (hereinafter—ECHR). Through the case—law of the European Court on Human Rights (hereinafter—ECtHR) and insights of the Human Rights Committee the author is investigating the content and limits of the freedom of religion. The article examines in detail the limiting clauses to the freedom of belief (...) (national security, public order, public health, public morals) and the possibility to apply derogation clause. The author comes to the conclusion that due to the complexity of this right it is difficult to forecast the future developments of this right. The jurisprudence of the ECtHR is numerous as well as the decisions of the Court are often accompanied by dissenting opinions. Moreover, some potential cases related to the freedom of religion are not considered by the ECtHR as the admissibility criteria are not met. Therefore the author looks forward to the forthcoming jurisprudence of both—regional and universal human rights bodies. (shrink)

The right to health implies, among other things, that individuals and communities must be allowed to have a voice in decisions concerning the definition of their well-being. The article argues for a more active participation of ethnocultural minorities in healthcare decisions and highlights the relevance of strategies aimed at creating a bottom-up engagement of people and groups, as well as of measures aimed at a broader organizational flexibility, in order to meet migrants’ and minorities’ needs. Finally, the article clarifies that (...) these strategies are not simply the outcome of a welcoming attitude of the Western healthcare system but may be interpreted as a specific duty resulting from the notion of “particularly vulnerable groups,” as formulated by the ECtHR in its case law: when vulnerable groups are at stake, every decision about state actions and rules regarding healthcare should start from an a consideration of the specific conditions and needs of people belonging to vulnerable minority groups. (shrink)

As the title of the article suggests, “The Burqa Ban”: Legal Precursors for Denmark, American Experiences and Experiments, and Philosophical and Critical Examinations, the authors embark on a factually investigative as well as a reflective response. More precisely, they use The 2018 Danish “Burqa Ban”: Joining a European Trend and Sending a National Message (published as a concurrent but separate article in this issue of INTERNATIONAL STUDIES JOURNAL) as a platform for further analysis and discussion of different perspectives. These include (...) case-law at the international level while focusing attention on recent rulings and judicial reasoning by the ECtHR and the ECJ; critical thought-experiments in religion, morality, human rights, and the democratic public space; a contextualized account of burqa-wearing interventions by federal and state governments and, moreover, various courts in the United States; and philosophical commentary and, in some instances, criticism of the Danish and/or European (French, etc.) approach. The different contributions have different aims. The section on case-law at the international level reports on those central judgments that, in effect, helped to pave the path for the Kingdom of Denmark’s burqa ban. Concerning the concurring judges at the ECtHR, the opinions served to uphold a preexisting ban and to grant a wide margin of appreciation to the national authorities, thereby limiting the Court’s own review. -/- As regards to the ECJ, the legality of company rules that contain a policy of neutrality for the workplace was examined, with a similar outcome. The authors who discuss religion, morality, human rights and the democratic public space are endeavoring to, respectively, appeal to ethics as a testing stone for law and to both challenge and address several forms of “expressivist worry” in connection with face veils. In doing so, the authors ask a number of thought-provoking questions that hopefully will inspire public policymakers to careful analysis. While the section that is devoted to American perspectives highlights a comprehensive survey of political and legal responses to, in particular, full-face veils like the burqa, the relevant author also incorporates public perceptions and, in the course of examining these, draws a parallel to “the fate” of the hoodie. The constitutionality of burqa-wearing in America, so it also appears, is partially an open question, but differentiating between religious, political, or personal reasons is a de jure premise. Given that the Danish legislators who drafted law L 219 to ban burqa-wearing in public places rely on a reference to political Islam, they relegate religious and personal reasons to the private domain, thereby also adopting secularism as a premise. This is explored in the last author response of the article, more precisely, in an account of the underlying materialism that, in turn, is applied to Muslim women. If policymakers and legislators engaged in Thinking Things Through exercises, they could, as a minimum, avoid law-making strategies that are not in the spirit of the theory they themselves invoke, albeit tacitly. While the aim of, as it were, arresting culturally self-contradicting legislators is unique for the section in question, all the authors who contribute to the joint research project have one end-goal in common, namely to inform about important perspectives while at the same time opening up for parameters for (more) fruitful, constructive and (if need be) critical debate in the future. With this in mind, four recommendations are presented by the research director for the project. Legally, politically, socially and culturally, conflict-resolution should not translate the relationship between rulers and the ruled into a separation ideology, an instance of controllers versus the controlled. All things being equal, that is the objective limit for a democratic society. (shrink)

The application of the latest technologies in biology and medicine has brought them to a qualitatively new level of possibilities. Worldwide, biobanking is actively developing through the creation of biobanks of various types and purposes, whose resources are used to solve therapeutic or scientific problems. Legal science remains an open question concerning the boundary that runs between the right to data protection and the scope of disclosure of data needed for medical purposes. In this article, the author considers peculiarities of (...) data processing in the context of biobanking activity on the example of Austria and its national legislation. In addition, the article reveals features of the approaches of the European Court of Human Rights (ECtHR) and the Council of Europe to the issue of biobanking in general, its characteristics in the context of data, and legal regulation of this phenomenon in the national law of states. The author devoted an important part of the study to the role of Austria’s experience in the context of data processing for scientific purposes and the development of biobanking for a number of other European states. The aim of the article is to analyze the Austrian legislation on data processing for scientific research and biobanking, the attitude of the Council of Europe to this phenomenon, and the practice of the ECtHR, as well as to consider the impact of the current world situation on these activities. The leading method of research used in the article is the formal-legal method. The article analyzes the Austrian law in the context of data processing in medical research, the relationship of the specifics of personal data protection, and the need to disclose them for scientific purposes. The author pays special attention to the influence of Austrian law on the legislation of other countries, which is reflected in the conclusions to the article. In addition, based on an analysis of the application of the Austrian experience to the legislation of Poland and Ukraine, the author points out the necessary changes that should be made in the laws of these countries. (shrink)

Even though the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) does not explicitly address the rights of asylum seekers and refugees, the case law of the European Human Rights Court (ECtHR) confirms that their rights can be successfully defended under this mechanism. In parallel, in its evolving jurisprudence on asylum the Court of Justice of the European Union (CJEU) refers to the Strasbourg case law, where there is a certain interrelationship between these two jurisdictions, in (...) particular given the recent ECtHR pronouncement on “EU Dublin transfers”. The article aims at evaluating protection available for asylum seekers and refugees under the ECHR, while comparing it with protection of asylum relevant fundamental rights under the EU legal order and the most recent jurisprudence of the CJEU in asylum cases. The authors also analyze which of the two systems is more favourable and what are their limitations. Thus, the article offers to students and practitioners a detailed analysis of ECtHR and CJEU jurisprudence in asylum cases through a comparative perspective, as well as the key problematic aspects arising in both jurisdictions and their junction. The jurisprudence of the ECtHR reveals that despite the most developed protection from expulsion under Article 3 of the ECHR, it does not sufficiently secure status for the concerned persons. Effective remedy requirements under the ECHR allow for filling the gaps of national asylum procedures, while recognition of vulnerability and special status of asylum seekers by the ECtHR assist in addressing still commonly prevailing detention problems of asylum seekers in Europe. In the context of family protection, the recognition of positive obligations by states to reunite the refugee families is still rudimentary, thus, clearly Article 3 protection in expulsion cases takes over Article 8. At the same time, the jurisprudence of the CJEU in asylum cases is still inconsistent, as the court sometimes takes decisions without including human rights into its’ analysis (Kadzoev, Arslan, K.), while in other cases refers to the Charter (MA and others), verifies if its’ own decision is in line with the ECtHR jurisprudence (Elgafaji) or shapes secondary legislation in line with Strasbourg arguments and findings (N.S.). Quite likely, the ECtHR practice will have an important influence on the developments of subsidiary protection in the EU, at least in the context of Articles 2 and 3 of the ECHR, and serve as an important reference for interpretation of various concepts under the EU Qualification and Procedures Directives. The comparative analysis of pros and cons of the two mechanisms demonstrates that the main advantage of the ECtHR is individual justice possibility, which is not yet accessible under CJEU preliminary judgement procedure and its input in developing asylum law concepts, such as non-state agents of persecution, internal protection or even subsidiary protection regime under EU asylum law. Thanks to the ECtHR, the realistic possibility to question the application of certain EU norms has emerged (Dublin Regulation). While the ECtHR does not have such a specific competence over asylum issues as the CJEU and is clearly a slow and seriously overburdened mechanism, the pilot judgement procedure seems to be increasingly capable of providing guidelines to the states concerning systematic problems in their asylum procedures. Thus, both jurisdictions in their own ways contribute to strengthening asylum seekers’ protection while forming a common oasis for these individuals in Europe. (shrink)

Analysis of case law from the US, Germany, South Africa, Canada, Israel, and the ECtHR forms the basis of Tripkovic's exploration of constitutional adjudication from an antirealist standpoint. This highly original work identifies the salient value-based arguments in constitutional practice and exposes the implicit assumptions that lie therein.

This article presents findings from an interview study of human rights practitioners who assist relatives of the disappeared from Chechnya with their complaints before the European Court of Human Rights (ECtHR). These practitioners work for nongovernmental organizations (NGOs). The study contributes to the scant literature on NGO litigation before the ECtHR and to the social scientific literature on how human rights are actively practiced. It investigates the NGOs’ intermediary position between the ECtHR and the relatives of the (...) disappeared in Chechnya. Consequently, this article asserts that a significant aspect of this position lies in the practitioner’s capacity to mediate between an ambition to externalize local grievances to the ECtHR and the relatives’ hopes that the ECtHR can bring certainty to the uncertain loss of their disappeared relatives. From this position, several dilemmas emerge as to how international legal mechanisms can provide remedies following disappearances. (shrink)

The Luxleaks scandal, which had garnered widespread attention in 2014 and implicated A. Deltour and R. Halet, has taken a significant turn with the recent publication of the Grand Chamber’s decision in favour of Mr Halet. Initially, Deltour was officially recognised as a whistleblower by the European Court of Human Rights (ECtHR) in defence of the actions he took, while Halet faced condemnation for lacking whistleblower status. Halet had previously brought his case before the ECtHR, alleging a violation (...) of his right to freedom of expression. However, the ECtHR’s judgment in February 2023 ultimately upheld the right to freedom of expression, marking a pivotal moment in this legal saga. The judgment itself focused on two critical criteria for safeguarding whistle-blowers within the framework of freedom of expression: assessing the damage caused to the employer and determining whether such damage could be outweighed by the public interest, as well as evaluating the severity of the imposed sanctions. This contribution aims to provide a critical assessment of the Luxleaks case up until the the ECtHR’s Grand Chamber decision. As this analysis will argue, the judgment holds immense significance as it introduces a fresh perspective on the notions of damage and public interest in the context of the Court’s established jurisprudence concerning whistleblower protection. (shrink)

The freedom of expression is ‘the great bulwark of liberty’ and a ‘cornerstone upon which the very existence of a democratic society rests.’ It constitutes one of the ‘basic conditions for [a democratic society’s] progress,’ encapsulating ideas that may even ‘offend, shock or disturb.’ In his Rhetoric, Aristotle argues that free speech is of paramount importance, particularly in the form of a ‘robust public discourse as a means to promote citizen awareness and vigilance.’ To this end, freedom of expression is (...) a central tenet of democratic checks and balances as it allows for an ‘informed consent of the governed.’ Despite the recognition of this freedom since classical times, and the repeated proclamations of support by a variety of institutions, such as the Council of Europe, what is demonstrated, hereinafter, is that the freedom of expression is in a state of severe recession (regardless of the ‘openness’ of a society). This has resulted from a set of interrelated challenges, namely, the stark demise of Internet freedom within the general ambit of a widening conceptualization of hate, and the systematic strategy of moderating ‘hateful’ content. Whilst these challenges are inextricably interconnected with the technological revolution of our times, the authors hold that the fragile positioning of the freedom of expression in the framework of the Council of Europe and, particularly, the approach adopted by the major regional human rights court of the world, the European Court of Human Rights (ECtHR), has facilitated the systematic erosion of the central agora of expression, namely, the Internet and its fora. It is argued that the current _status quo_, as described hereinafter, is marked by a corrosion of _parrhesia_ or free speech itself and, also, of _isigoria,_ namely, the equal right of all to free speech. In light of the above, and for purposes of extrapolating on the challenges to this fundamental freedom, this paper will commence with a normative assessment of the legitimacy and impact of restricting the freedom of expression, followed by an overview of its position in the Council of Europe, with a focus on the concept of hate. Further, and emanating from the ECtHR’S position in _Delfi v Estonia,_ on the liability of Internet intermediaries, it will conduct an analysis of the status of speech online, extrapolating on the issue of ‘hate speech’ and the horizontalization of responsibility _vis-à-vis_ content moderation through the structural juxtaposition of private, profit-making companies deciphering on issues of freedom of expression through, inter alia (yet increasingly) the use of Artificial Intelligence. (shrink)

A woman from the Republic of Ireland has successfully challenged the country's restrictive abortion legislation at the European Court of Human Rights. 1 The woman was in remission from cancer and believed that she was at increased risk of relapse due to her unintended pregnancy. She believed that continuing with the pregnancy would have put her life at risk. She travelled to England for an abortion in 2005 and subsequently experienced medical complications when she returned to Republic of Ireland. Abortion (...) in the Republic of Ireland is permitted if the life of the pregnant woman is at risk, but given the uncertainty around interpreting the legislation and the fear of criminal sanctions, the provision is not always effective in practice. The woman argued that her right to an abortion had been denied because there was no law or procedure through which she could have her clinical entitlement established. The ECtHR was unanimous that her right to private and family life had been violated but did not uphold her challenge under Articles 2, 3 and 14. The woman was joined by two other women in the challenge but the other women were unsuccessful as their circumstances differed; their lives had not been at risk if they had continued with their pregnancies. 2The Court concluded ‘that neither the medical consultation nor litigation options, relied on by the Irish government, constituted effective and accessible procedures which allowed [her] … to establish her right to lawful abortion in Ireland’.3At the time of writing, the Irish government was considering how to implement the judgement.Review of arm's-length bodiesAs previously reported here, in July 2010 the UK Government announced plans to reform and abolish a large number of arm's-length bodies. 4 …. (shrink)

Principle of equality of arms is part of fair trial concept, which encompasses several guarantees linked to the defence opportunities during the criminal procedure. The accused person is entitled to a fair trial. Balance of rights between the parties is bedrock for procedural fairness and the judge has to perform his competence in providing all necessary preconditions as for the trial to be fair. There are differences between interpretation and implementation of equality of arms in the jurisprudence of European court (...) on human rights and international criminal courts. Decisions of ECtHR are much more similar with domestic understanding of equality of arms as reasonable opportunity of the defence to present the case without disadvantages vis-à-vis the prosecutor, due to inherent inequity between the parties. When analyzing proceeding before the ad hoc Tribunals, there is “more liberal interpretation” of this principle, which allowed the Prosecutor to invoke equality of arms, as well. ICTY Trial Chamber in Aleksovski case concluded that application of the concept of a fair trial in favor of both parties is understandable because the Prosecution acts on behalf of and in the interests of the international community, including the interests of the victims of the offence charged and also has held that it is difficult to see how a trial could ever be considered to be fair where the accused is favored at the expense of the Prosecution. This interpretation has been justified with dependence of the international Tribunals on state cooperation and due to the fact that international criminal courts have no autonomous enforcement agencies at their disposal. Fortunately, ICC Statute considered equality of arms as solely afforded to the defence, or to the Prosecutor on the behalf of accused. (shrink)

The present article is a subjective commentary on the case Kononov v. Latvia dealt by the European Court of Human Rights, in particular drawing attention to the Courts intention not to regard context of the case as important for the substantial issues. Author considers this approach in a bigger picture of clash of historical and legal paradigms of the heritage of the Second World War in different countries (namely, Western Europe, Russia, the Baltic States). Author also discusses what impact Kononov (...) case might have on Soviet crimes prosecution in the future. (shrink)

This article presents the review of the cases decided by the European Court of Human Rights against Lithuania during 2010. Authors provide the summary of relevant cases so that the potential reader is updated with the latest developments of human rights protection concerning Lithuania. Among other cases, this article reviews the case Cudak v. Lithuania decided by the Grand Chamber, which clarified the issues of restrictive principle of State immunity in employment disputes.