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The Case Law of the ECtHR in 2022: Strasbourg in the ‘Age’ of Protocol No. 15
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- Book:
- European Yearbook on Human Rights 2023
- Published by:
- Intersentia
- Published online:
- 04 April 2024
- Print publication:
- 30 November 2023, pp 627-662
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Summary
ABSTRACT
Th is contribution analyses the developments in the case law of the European Court of Human Rights in 2022. This is the first year aft er Protocol No. 15, which, inter alia, introduced an express reference to the principle of subsidiarity and the doctrine of margin of appreciation into the Preamble of the European Convention on Human Rights, entered into force. Therefore, although the increased relevance of subsidiarity and margin of appreciation in the Court's approach to the interpretation and application of the Convention is not a new trend, it seems that it can provide an appropriate lens through which the relevant case law developments should be assessed. In light of the above, the contribution examines (some of) the relevant ‘key cases’ decided by the Court in 2022, and tries to highlight the relevance of the above-mentioned principle and doctrine in the identification of the scope and content of the obligations imposed on the domestic authorities by the Convention, as well as in the determination of the nature and scope of the Court's review over compliance with such obligations.
INTRODUCTION
In 2022, the European Court of Human Rights (ECtHR or ‘the Court’) faced unexpected challenges, caused by the expulsion of the Russian Federation from the Council of Europe (CoE) on account of the armed aggression perpetrated on 24 February 2022 against Ukraine. Among other issues caused by this situation, the Court needed to rule on its jurisdiction over pending and new cases against Russia, to decide how to process these without the participation of the Russian government in the adversarial proceedings, and to decide how to manage Russia's huge backlog of pending cases in the absence of financing by the latter. Moreover, the ongoing armed conflict gave rise to a huge number of applications and interim measures requests, lodged with respect to the alleged violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR or ‘the Convention’), perpetrated in that context. At the same time, 2022 was a year of great satisfaction.
The Case Law of the ECtHR in 2021: The ECHR in International and Cross-Border Situations
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, Global Campus of Human Rights, Venice and Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- Book:
- European Yearbook on Human Rights 2022
- Published by:
- Intersentia
- Published online:
- 20 April 2023
- Print publication:
- 30 November 2022, pp 731-770
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Summary
ABSTRACT
The present contribution analyses the developments in the case law of the European Court of Human Rights (ECtHR) in 2021. The relevant judgments and decisions have been selected on the basis of two criteria, namely qualifi cation as ‘key cases’ by the Court itself, and the attraction of the stakeholders’ attention and/or criticisms. Among the cases that met the above criteria, the author selected those cases that dealt with a common issue, namely the problem of the applicability (in terms of establishing states’ jurisdiction under Article 1 of the European Convention on Human Rights), and the interpretation and application (in terms of clarifying the content of states’ duties and determining whether they have been violated in the specific circumstances of the cases) of the Convention in situations of an international or cross-border nature. The analysis shows that the Court is, more and more, faced with similar situations. At the same time, although the Court is clearly willing to develop states’ Conventional duties and obligations in international and cross-border situations, a manifest preference for procedural instead of substantive obligation has been identified. In this regard, the specific topic dealt with in the present contribution confirms the more general tendency, identified by the literature on the Court’s case law, towards a ‘procedural review’ of Member States’ compliance with the Convention obligations.
INTRODUCTION
The point of departure for selecting the most relevant judgments and decisions issued by the European Court of Human Rights (‘the ECtHR’ or ‘the Court’) in one entire year seems to be the consultation of those that are qualified as ‘key cases’ by the Court itself. It can be assumed that those are the cases which raised complex legal issues and/or clarified, developed or overturned the jurisprudence of the Strasbourg Court. From an academic point of view, however, the selection must also take into account cases which attracted attention and/or criticism from governments, NGOs, academics and other stakeholders.
The Case Law of the ECtHR in 2020 in the Light of the Principle of Systemic Harmonisation
- Edited by Philip Czech, University of Salzburg, Lisa Heschl, University of Graz, Karin Lukas, Ludwig Boltzmann Institut für Menschenrechte, Austria, Manfred Nowak, University of Vienna, Gerd Oberleitner, European Training and Research Centre for Human Rights and Democracy, University of Graz
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- Book:
- European Yearbook on Human Rights 2021
- Published by:
- Intersentia
- Published online:
- 22 February 2022
- Print publication:
- 30 November 2021, pp 569-616
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Summary
ABSTRACT
This contribution provides an overview of relevant developments in the case law of the European Court of Human Rights (ECtHR, the Court) in 2020. Priority will be given to Grand Chamber (GC) judgments and decisions and those of the chambers deemed to be highly relevant from a substantial and procedural viewpoint. Given that in 2020 the Council of Europe's Steering Committee for Human Rights published its report on ‘The Place of the European Convention of Human Rights in the International and European Legal Order’, the case law will be selected and examined from the viewpoint of the principle of systemic harmonisation. The aim is highlighting positive and negative examples of application of general international law by the ECtHR, of cross-fertilisation between the ECtHR and other international courts and tribunals, as well as of interpretation of the European Convention on Human Rights (ECHR) in the light of international human rights instruments.
INTRODUCTION
Due to the COVID-19 pandemic, 2020 has been a challenging year for the protection of human rights in Europe and worldwide. Indeed, some Member States of the European Convention on Human Rights (ECHR, or the Convention) notified derogations pursuant to Article 15 ECHR to the Secretary-General of the Council of Europe (CoE). In any case, it has been pointed out that in the protection of human rights, a ‘normal-as-usual’ approach should be adopted even in times of a pandemic, given that ‘the extraordinary nature of states of emergencies cannot and should not prevent human rights from performing their normal role in society’.
Moreover, the measures that have been adopted in order to contain the spread of the virus – namely, strict lockdowns – also affected the capacity of national and international justice systems to function, therefore affecting the capacity of victims of (past) human rights violations to obtain justice and reparation. However, except for a temporary suspension of procedural time limits, during the pandemic the European Court of Human Rights (ECtHR, the Court) continued to handle its caseloads as usual. And indeed, throughout the year the Court issued a significant number of interesting judgments and decisions.
Bringing the Child’s Procedural Rights before the ECtHR through Interpretative Tools: Access to Justice, Participation and Representation
- Edited by Philip Czech, Lisa Heschl, Karin Lukas, Manfred Nowak, Gerd Oberleitner
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- Book:
- European Yearbook on Human Rights 2020
- Published by:
- Intersentia
- Published online:
- 11 February 2021
- Print publication:
- 01 December 2020, pp 49-78
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The legal framework governing proceedings before the European Court of Human Rights (ECtHR) neither guarantees access to justice for children nor is it a child-sensitive procedure. Indeed, it does not allow for a direct hearing for children, nor does it provide them with an independent representative in cases of – potential or actual – conflict of interests. However, the Court has recently proved more conscious of such loopholes, and there is a trend towards the overcoming of such issues. The present contribution analyses this trend and justifies it by resorting to the interpretative reference to different international conventions, to the procedural rules of other international courts and tribunals dealing with similar issues and to the national law of some state parties to the European Convention on Human Rights (ECHR). Although the recent developments in the Court's case law could be explained by resorting to those interpretative tools, it will be suggested that the adoption of a specific provision in the Rules of Court, dealing with child access to the Strasbourg justice system and child representation in proceedings, would be the best solution for ensuring the adequate protection of children's procedural rights, while at the same time securing procedural fairness and legal certainty.
INTRODUCTION
The 1989 United Nations (UN) Convention on the Rights of the Child (CRC) marked a Copernican revolution in protecting children's rights. From that moment on, the child – who was previously seen as a passive and vulnerable human being who exclusively needed protection – once and for all acquired the dignity of a subject of rights and rights-holder, instead of a ‘mini-human with mini-rights’. Today, it is generally recognised that children have (legal) personality, distinct from that of their parents. Consequently, they should be able to exercise those rights and to seek redress in case of violations thereof. The ECtHR contributed to this development, although children's rights to participate and to be heard in proceedings have not yet been fully implemented.
Moreover, recent developments in the Strasbourg case law clearly show an increasing willingness to implement children's rights, following what has been defined by scholars as a ‘child-centric’ approach. As a matter of fact, the principle of the ‘best interest of the child’ is an object of European consensus, usually overriding, in the balancing process, conflicting interests.