* Rebecca Lawrence, ‘A Positive Right to Rehabilitation? An Examination of the ‘Principle of Rehabilitation’ in the Caselaw of the European Court of Human Rights’ Human Rights Law Review (2024):
‘This article analyses the development and the role of the ‘principle of rehabilitation’ in the European Court of Human Rights’ caselaw on prisoner rights. It will be demonstrated that, outside of the context of whole-life sentences, the impact of the principle on the Court’s reasoning process has been relatively limited, despite increasing reference by the Court to the growing importance of the principle. Further, that the Court allowing the pursuit of rehabilitation to be used as justification for interferences with other Convention rights within its caselaw undermines the link made by the Court between rehabilitation and human dignity. Finally, it is argued that a conception of rehabilitation that is underpinned by human dignity requires recognition of a positive duty on states to provide access to appropriate rehabilitative treatment for all prisoners.’
* Juan J. Garcia Blesa, ‘Neoliberal rationality and the rhetoric of sacrifice in the construction of proportionality discourse: a case-study from the European Court of Human Rights’, International Journal of Human Rights (2024):
‘Applying a critical rhetorical approach to law, this article revisits the proportionality discourse of the European Court of Human Rights and the socio-political tendencies it reveals in the case of Garib v the Netherlands (2017). The work focuses on the rhetorical management of the conflict between socio-economic public policies and the social rights indirectly protected under the European Convention on Human Rights and its Protocols. The rhetorical construction of proportionality discourse identified is driven by the re-elaboration of themes constitutive of the normative rationality of post-austerity neoliberalism, in particular the individual responsibilisation and sacrifice for the negative consequences of neoliberal socioeconomic policies. The discourse is also supported by elements announcing an authoritarian turn in the deployment of such policies through the connection between economic goals and public order.’
* Lore Roels, ‘Rape Myths in the European Court of Human Rights’ Non-Refoulement Case Law on Sexual and Gender-Based Violence’, International Journal of Refugee Law (2024):
‘The criminal justice and the refugee/human rights systems operate within different procedural and substantive frameworks. However, analysis of the European Court of Human Rights’ case law reveals a significant parallel between the two, namely judges’ acceptance of ‘rape myths’ in making their decisions. Criminal justice scholarship has defined rape myths as stereotyped and false beliefs about rape (including about victims and perpetrators). This article translates the concept to the refugee/human rights context and extends it to other forms of sexual or gender-based violence (SGBV) as well. It identifies four specific SGBV myths in the court’s non-refoulement case law: non-reporting of SGBV in the country of origin equals non-exhaustion of local remedies or protection (institutional scope: section 4.1); the existence of a private (male) support network suffices to protect an applicant from SGBV (interpersonal scope: section 4.2); resourceful applicants do not need protection against SGBV (personal scope: section 4.3); and any vagueness, incompleteness, or inconsistency in SGBV disclosures indicates a false or exaggerated story (narrative scope: section 4.4). These types of reasoning not only lack evidence-based grounds, but also demonstrate a striking lack of understanding of the nature of SGBV and the protection needs of its survivors/victims. In theory, SGBV has been recognized as a form of ill-treatment deserving protection from refoulement. In practice, however, access to this protection is hindered by a tendency to use SGBV myths in (credibility) assessments of applicants who fear ill-treatment on the basis of SGBV. While the exact meaning of gender-sensitive non-refoulement assessments remains undefined, it cannot entail the practices of SGBV myth acceptance uncovered in this article.’
* Dilek Kurban, ‘Authoritarian Resistance and Judicial Complicity: Turkey and the European Court of Human Rights’, European Journal of International Law (2024):
‘International courts face growing contestations to their authority. Scholars have conceptualized the forms and grounds of such resistance as well as the response of international courts. Much empirical research has focused on regional courts with human rights mandates. Yet, in focusing on overt resistance, not differentiating between authoritarian and democratic regimes, and depicting courts at the receiving end of resistance, scholarship does not account for discrete forms of resistance tolerated and enabled by courts. In addition, studies on the European Court of Human Rights (ECtHR) base their analyses exclusively on judgments, which constitute a mere 9 per cent of this Court’s jurisprudence. This methodological bias, combined with a time frame limited to the post-2010s when the ECtHR has faced public contestations to its authority, have led to inaccurate and incomplete conclusions regarding the Strasbourg Court’s response to backlash and illiberalism. This article calls for a goal-orientated conceptualization of resistance and a methodology that analyses the ECtHR’s non-judgment jurisprudence in its entirety to reach accurate conclusions on its response to authoritarianism. Based on an in-depth and contextual analysis of the ECtHR-Turkey case, the article puts forth empirically grounded insights on authoritarian resistance and judicial complicity. It argues that authoritarian regimes seek to lessen international courts’ oversight of their policies, not to undermine the authority of these courts as such, and that international courts are not always resilient vis-à-vis authoritarian resistance but can also be complicit with it. The forms of authoritarian resistance and judicial response depend on the institutional set-up of the human rights regime in question as well as the ways in which international courts exercise their review powers. The two phenomena influence and reinforce each other, resulting in the simultaneous or consecutive occurrence of various forms of authoritarian resistance and judicial response depending on the particular political context in which they interact.’
* Matthew Saul, ‘Local Authorities at the European Court of Human Rights’, International Journal of Human Rights (2024):
‘The high-level Reykjavík Declaration (2023) recognises the importance of local authorities (the lowest tier of administration within a state) for the functioning of the European Convention on Human Rights (ECHR) system. This article seeks to provide a better understanding of the human rights role of local authorities and the potential of the European Court of Human Rights (ECtHR) as a promoter of this role. It examines how local authorities appear in the judgments of the ECtHR and assesses the extent to which they provide clear pictures of local authorities and their role in human rights issues. The analysis draws on a close reading of a sample of cases encompassing a diverse set of states and human rights issues. It shows how the ECtHR’s reasoning indicates what is required of a local authority for a specific set of circumstances, but also the general attributes of local authorities that are conducive to the provision of human rights. For judgments of the ECtHR to promote local authorities as human rights actors, local authorities and their interlocutors need to be able to identify the judgments and the elements of reasoning therein that are of most relevance for their circumstances.’
* Lorenzo Acconciamessa, ‘Exporting the Margin of Appreciation: The Role of the European Court of Human Rights in Shaping a General Principle on the Exercise of the International Judicial Function’, The Law and Practice of International Courts and Tribunals (2024):
‘It was in 1976 when, in the case of Handyside v. the United Kingdom, the European Court of Human Rights held that the European Convention on Human Rights “leaves to the Contracting States a margin of appreciation”. Forty-five years later, in 2021, Protocol No. 15 entered into force and incorporated the “margin of appreciation” into the Preamble of the ECHR. For a long time, the doctrine has been considered a unique feature of the European human rights system, consistently ignored or explicitly rejected by other international adjudicators. This article aims to assess whether the recent international judicial practice still confirms such a conclusion, or whether the margin has migrated across the case law of different international courts and is, nowadays, a doctrine that can be applied to the assessment of the scope and content of international obligations and to the review of compliance with such obligations in general.’
* Ilya Sobol, ‘Glorification of Terrorist Violence at the European Court of Human Rights’, Human Rights Law Review (2024):
‘This article examines the European Court of Human Rights’ approach towards restrictions on expression glorifying terrorist violence. This is done by situating the Court’s case law against two objections to respective criminal offences: their inherent overbreadth and their incompatibility with the restraining demands of the ‘harm principle’. In doing so, the article discusses how the ‘harm principle’ relates to the proportionality test and how the Court’s categorisation of expression glorifying violence responds to the objection of overbreadth. In arguing that the tool of categorisation has not been determinative in driving the outcomes in relevant decisions, the article suggests that engaging the existence of a competing public interest and reviewing the admissibility of reasons for such restrictions would appropriately elevate the Convention standard. Finally, the article argues that inconsistencies across decisions are best explained by the Court’s deference-giving practices, particularly in cases involving claims about the recency of terrorist violence.’
* Juho Aalto, ‘BinaryTech in motion: The sexgender in the European Court of Human Rights jurisprudence’, Leiden Journal of International Law (2024):
‘Sexgender has become politicized by neo-conservative and populist movements in Europe and elsewhere. This article explores how the sexgender binary is foundational to the social and material construction of the non-heterosexual legal subject and unveils binary hierarchies embedded therein. Furthermore, it develops a new materialist methodology called BinaryTech, which exposes the binary formulas of inequality and difference in the Court’s jurisprudence. This new materialist approach, based on Karen Barad’s agential realism, is used to critically examine how differences are produced as stable features of subjects and objects. The human of the Convention being heterosexual is thereby the result, constructed on material-discursive differentiation of non-heterosexuals. The article concludes by describing how new materialist interventions and Nordic feminist perspectives on law can offer valuable insights within the emerging material turn.’
* Niels Hedlund, ‘The ECHR and the Positive Obligation to Criminalise Domestic Psychological Violence’ Human Rights Law Review (2024):
‘This article explores the scope of the positive obligation deriving from the case law of the European Court of Human Rights (ECtHR) to criminalise forms of domestic psychological violence. This is primarily done by examining the implications of Volodina v Russia (No. 1), Volodina v Russia (No. 2) and Tunikova and Others v Russia regarding the obligation in question. Additionally, this article addresses different legislative approaches towards the criminalisation of domestic violence that have been distinguished by the ECtHR and discusses whether they adequately criminalise domestic psychological violence. Some approaches appear ill-suited as they concern national offences that focus on serious incidents. Domestic psychological violence, on the other hand, can involve a course of conduct consisting of seemingly minor incidents. It is concluded that State Parties should review to what extent such forms of psychological violence are criminalised under their national criminal laws.’
* Anja Seibert-Fohr, ‘Public Health as a Community Interest: What Role for the European Court of Human Rights?’, German Yearbook of International Law 2022 (2024).
* Ursula Kriebaum, ‘Parallel Proceedings – Investment Arbitration and the European Court of Human Rights’, Austrian Review of International and European Law 2022 (2024).
