The Court’s Key Cases in 2024: Part I

By Dr. Jasmine Sommardal, Associate Editor of the ECHR Blog 

 

As 2024 has come to an end, the European Court of Human Rights’ (‘the Court’) final selection of key cases for the past year has been published. Among the Court’s four categories of cases, key cases are accorded the highest level of importance. The selection of the key cases has since 2007 been made quarterly by the Bureau (composed of the President, Vice-Presidents, and Section Presidents of the Court) upon the Jurisconsult’s recommendation (the role of the Jurisconsult being to ensure the quality and consistency of the case law). According to the Rules of Court, the Court’s Registrar is to draw appropriate attention to those cases selected as key cases. The selection of key cases provides an insight into what the Court considered the most significant cases of 2024.

 

This blog post will succinctly overview the main themes of the key cases in 2024 and the core developments of Convention requirements they brought about. It thus provides a short recap of the Court’s judicial year in terms of key cases. A separate post providing some general reflections on the key case law of 2024 will follow soon. 

 

A Broad Range of Cases 

 

The key cases of the Court concern almost all substantive Convention articles. They were filed against Belgium, Denmark, France, Hungary, Italy, Portugal, the Russian Federation, San Marino, Spain, Switzerland, Türkiye, Ukraine, and the United Kingdom. The selection includes one inter-state application (Ukraine v. Russia (re Crimea) [GC]). Seven key cases were decided by the Grand Chamber, and twelve by a Chamber formation. Four cases were decisions (Dian v. Denmark (dec.); A.L. and E.J. v. France (dec.); Carême v. France (dec.) [GC]; Duarte Agostinho and Others v. Portugal and 32 Others (dec.) [GC]), and the rest judgments.

 

The cases concern a wide range of substance matters, as shown in the following list of the main theme(s) in each case. 

 

Bogdan v. Ukraine   The validity of a waiver of the right to legal assistance when the applicant suffered from drug withdrawal (Art. 6)

Affaire Executif van de Moslims van België and Others v. Belgium (analysed here and here)   Organisations representing individuals of Muslim and Jewish faith complained about decrees prohibiting animal slaughter without prior stunning (Art. 9)

Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC] (extensively analysed – for instance, here, here, here, here, here, here and here)   Positive obligation to combat climate change (Art. 8, Art. 6)

Duarte Agostinho and Others v. Portugal and 32 Others (dec.) [GC] (analysed for instance here and here) Climate change complaints by a group of young Portuguese (Art. 1, Art. 35)

Carême v. France (dec.) [GC] (analysed for instance here and here)   Climate change complaint by a former municipality mayor (Art. 35)

Aydin Sefa Akay v. Türkiye (analysed here)   Arrest and pre-trial detention of international judge despite their diplomatic immunity (Art. 5)

J. Paul Getty Trust and Others v. Italy (analysed here, and here) Cultural heritage. A confiscation order aimed at recovering a bronze statue from the classical Greek period to the Italian authorities (Art. 1 of Prot. No. 1)

Domenjoud v. France   Curfews imposed in the context of COP21 against the background of a terrorist threat and violence (Art. 2 of Prot. No. 4, Art. 15)

Dian v. Denmark (dec.) (analysed here, here, and here) The conviction of an individual for begging in a public street (Art. 8)

Nealon and Hallam v. the United Kingdom [GC] (analysed here and here)   Presumption of innocence in proceedings that refused the applicants compensation for miscarriage of justice following the quashing of their convictions (Art. 6)

Dániel Karsai v. Hungary (analysed here and here)   The impossibility for a terminally ill patient to be assisted in dying (Art. 8)

Ukraine v. Russia (re Crimea) [GC] (analysed i.a. here, here, and here)   The Russian authorities’ treatment of different groups of people on the territory of Crimea, alleged administrative practice (multiple articles, lawfulness)

M.A. and Others v. France (analysed here and here)   Introduction of a criminal prohibition of the purchase of sexual services (Art. 8)

Pasquinelli and Others v. San Marino (analysed here)   COVID-19. Measures imposed on health care and social health workers for refusing to get vaccinated (Art. 8)

Pindo Mulla v. Spain [GC] (analysed here and here)   Blood transfusions administered despite the applicant’s explicit refusal (Art. 8)

Fabbri and Others v. San Marino [GC] (analysed here)   Alleged judicial inaction and resulting non-adjudication of civil claims brought in the ambit of criminal proceedings (Art. 6)

A.L. and E.J. v. France (dec.)   Remote retrieval of user data of an encrypted telecommunications tool and transfer of data of users located in the United Kingdom to authorities of that state (Art. 8)

Ferrero Quintana v. Spain (analysed here, and here) Age limit in public competition to recruit police officers (Art. 14)

F.M. and Others v. Russia   The obligation to protect irregular female migrant workers from trafficking in human beings and servitude and to investigate crimes committed against them (Art. 4)

 ECtHR key cases 2024, ordered chronologically. 

 

Developments of Convention Requirements 

 

These cases have brought about significant developments in human rights requirements across the Convention. The developments inter alia included:

 

Victim Status/Locus Standi

 

Separate, less demanding criteria for associations to achieve locus standi in climate change cases (KlimaSeniorinnen, paras 498 and 502), compared to more demanding criteria for victim status of individuals, which take into account the exclusion of actio popularis from the Convention system. For individuals, there is a requirement of the individual being personally and directly affected, which includes: i) a high intensity of exposure to adverse effects, that is, a significant level and severity of risk of adverse consequences of governmental (in)action, and ii) a pressing need to ensure the individual’s protection, owing to the absence or inadequacy of the government’s measures to reduce harm (KlimaSeniorinnen, paras 487 and 488 with further considerations, see also Carême, paras 80-83). 

 

The criteria for standing of associations are i) the association is lawfully established in the jurisdiction concerned/has standing to act there, ii) is ‘able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change’, and that iii) it can be regarded as genuinely qualified and representative to act on behalf of members or other affected individuals. The association need not show that the individuals on behalf of which they act would themselves have met the victim-status requirements (KlimaSeniorinnen, para. 502). 

 

In the context of cross-border information-sharing, the Court held that there is no need to divulge incriminating information in order to establish victim status (A.L. and E.J., para. 114). That would constitute a disproportionate obstacle to the effective exercise of the right of individual application. 

 

Lawfulness 

 

In Ukraine v. Russia (re Crimea) [GC], the Court extensively relied on international humanitarian law to conclude that when the Russian Federation extended the application of its law to Crimea, it did so in contravention of the Convention. Therefore, Russian law in Crimea could not be considered ‘law’ within the Convention meaning, and ‘any administrative practice based on that law cannot be regarded as “lawful” or “in accordance with the law”’ (para. 946). 

 

Further, in this situation, ‘at least after the enforcement of the “Accession Treaty”’, the courts in Crimea applied Russian law and delivered justice on behalf of the Russian Federation, and could thus not be considered to have been ‘established by law’ within the meaning of Article 6 (paras 1016-1022).

Extension of principles on the independence of domestic judiciary mutatis mutandis to international judges and courts (Aydin Sefa Akay, para. 113). When assessing the ‘lawfulness’ of the deprivation of liberty of an international judge, the Court in Aydin Sefa Akay, integrated international immunities into the Convention. Against the background of an assessment of the nature of the international judge’s immunity under the relevant instruments and public international law, it held that the ‘domestic courts’ interpretation of the applicant’s diplomatic immunity was neither foreseeable nor in keeping with the requirements of the principle of legal certainty under Article 5 § 1 of the Convention’ (Aydin Sefa Akay, paras 121-129).

 

Legitimate Aims or Interests

 

In Executief van de Moslims van België and Others, the Court clarified the question of whether animal welfare is covered by a legitimate aim under Article 9 of the Convention. The notion of public morals covered animal welfare (morals being an evolutive concept), and the Court also took into consideration an increased importance of animal welfare in Council of Europe member states (paras 90-102). 

 

Substantive analysis of the protection of cultural and artistic heritage as a legitimate general interest under Article 1 of Protocol No. 1, in J. Paul Getty Trust and Others (paras 340-359).

 

Article 4 – Prohibition of Slavery and Forced Labour

In F.M. and Others, the Court elaborated far-reaching positive obligations in terms of criminalisation, which needs to comply with all the elements established by the Court for the definitions of ‘trafficking in human beings’, ‘forced labour’ (neither definition including restrictions of freedom of movement, forced labour involving an absence of voluntariness which may be fulfilled when the employer takes advantage of the workers’ vulnerability), and ‘servitude’ (paras 288-289). Further, the Convention requires that consent is irrelevant in the domestic legislation for establishing whether or not trafficking has occurred (paras 283-285). 

 

The Court also established that the domestic authorities had failed to put in place an adequate legislative and administrative framework to prohibit and prevent the crimes and protect victims (paras 291-294), had not taken adequate operational measures to protect victims of trafficking (para. 305), and had failed in their duty to conduct an effective investigation (para. 330).

 

Article 6 – Right to a Fair Trial

Detailed criteria were established for when Article 6 is applicable in the context of a right to bring civil claims in the ambit of criminal proceedings (Fabbri and Others, paras 88-93, although these were criticised by several dissenting judges as being overly strict and formalistic when taking into account the differences in national procedural systems). The Court also considered the question of access to court in relation to such claims, establishing the relevance of pursuing such claims with due diligence (Fabbri and Others, paras 135, 137-140).

 

The case of Nealon and Hallam related to whether the presumption of innocence was violated in proceedings that refused the applicants compensation for miscarriage of justice following the quashing of their convictions.  The Court revised its earlier case law distinction between acquittals and discontinuances with respect to the subsequent compensation proceedings linked to criminal proceedings (para. 166). Regardless of whether the subsequent linked proceedings ended in an acquittal or discontinuance, the relevant point is whether decisions and reasoning in these proceedings ‘amounted to the imputation of criminal liability to the applicant’ (para. 168).

 

The Court refrained from defining ‘miscarriage of justice’ in an Article 6 context, Article 6 not guaranteeing a person whose criminal conviction has been quashed a right to compensation for miscarriage of justice (compare Art. 3 of Prot. No. 7, which does not define that concept). Sates are free to decide how to define ‘miscarriage of justice’, and thereby establish which categories of people that are eligible for compensation, insofar as such a refusal of compensation would not in and of itself impute criminal guilt on an applicant (para. 172). 

 

A test in the domestic legislation requiring a newly discovered fact to show beyond reasonable doubt that the person ‘did not commit the offence’ (avoiding the term ‘innocent’) was not inconsistent with the applicants’ continuing innocence in the legal sense (paras 179, 181). This conclusion was criticised by a number of dissenting judges, who found that the provision violated the presumption of innocence by allowing or requiring a reassessment of whether an applicant had committed a criminal offence, and creating a presumption that the applicants indeed did commit the offence. They also emphasised that the substantive test is what has mattered in the Court’s earlier case law, and noted that their concerns were not merely theoretical.

 

In the case of Bogdan, the Court held that credible allegations that the applicant suffered from withdrawal symptoms when he waived his right to a lawyer made the voluntary nature of his waiver open to doubt (para. 60). It was, therefore, for the domestic courts to establish that the waiver had been voluntary and valid (para. 61). Although the domestic law established a safeguard for involuntary waivers, the police had acted in a way which rendered the safeguard ineffective (para. 65). The deficiencies were not sufficiently remedied during the criminal proceedings as a whole, leading to a violation of Article 6 §§ 1 and 3 (para. 81).

 

A climate-change context does not change, but has implications for the application of the Court’s well-established case law principles on the applicability of Article 6 (KlimaSeniorinnen, para. 608). For instance, where the domestic law recognises a legally relevant relationship of causation between State actions/omissions and harm or risk of harm affecting individuals, a ‘civil right’ within the meaning of Article 6 may be at issue (para. 610), and the absence of strictly imminent harm should not by itself lead to the conclusion that the outcome of proceedings would not be decisive for its ‘alleviation or reduction’ (para. 614). The Court held that the applicant association’s right to access of court had been restricted in a way and to the extent that the very essence of the right had been impaired (paras 629-637).

 

Article 8 – Right to Respect for Private and Family Life

The Court established positive obligations on climate change under Article 8 (KlimaSeniorinnen). This included a duty to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible future effects of climate change (para. 545). Enumeration of requirements that the domestic authorities have to have due regard to (para. 550), mitigation measures to be supplemented by adaptation measures (para. 552), and domestic procedural safeguards relevant for determining whether the Contracting Parties remained within their margin of appreciation (para. 553).

 

A reduced margin of appreciation on setting the aims and objectives for combating climate change and its adverse effects, but a wide margin of appreciation as to the choice of means (para. 543).

 

In Pindo Mulla the Court emphasised the importance of individual autonomy with respect to a decision to refuse blood transfusion (paras 137-138, 146), concluding that the ‘decision-making process, as operated in this case, did not afford sufficient respect for the applicant’s autonomy’ (para. 183).

 

Article 1 of Protocol 1 – Protection of Property

In the context of a purchase of a cultural object – a bronze statue from the classical Greek period – the nature of the transaction justified a high standard of diligence on behalf of the buyer (J. Paul Getty Trust and Others, paras 381–383, 407).

 

Article 14 - Prohibition of Discrimination

In F.M. and Others, the Court, in relation to the State’s poor anti-trafficking efforts, recognised intersectional discrimination against the applicants as female foreign migrant workers in an irregular situation (paras 342-347).

 

Article 15 – Derogation in Time of Emergency

It is well established that states do not enjoy unlimited powers with respect to Article 15 derogations: the Court is empowered to review whether States have gone beyond the  “extent strictly required by the exigencies” of the crisis. In Domenjoud, the Court established that only measures which present a strong enough connection with the aim sought with the derogation under Article 15 can be covered by that derogation (para. 154). The Government had not shown that the curfew of one of the applicants during the COP21 summit had been ordered as part of the French derogation, which concerned the fight against terrorism, and that the curfew was strictly required by the situation within the meaning of Article 15 § 1 (para. 155).

 

Article 18 – Limitations on Use of Restrictions on Rights

In Ukraine v. Russia (re Crimea) the Court held that Article 18, which provides for limitations of the use of restrictions of rights, cannot apply in conjunction with Article 7, due to the non-derogable nature of that guarantee (para. 1340). 

 

Of course, not every key case developed the Convention rights requirements. For instance, in the key cases Dániel Karsai, M.A. and Others, Dian (dec.), and Executief van de Moslims van België and Others, no violation of the Convention was concluded – in Dian, the Court even rejected the applicability of Article 8. These cases did not, as such, establish significant new Convention requirements. Other cases insisted on victim status (Carême (dec.)), the exhaustion of domestic remedies (A.L. and E.J. (dec.); Duarte Agostinho and Others (dec.) [GC]), or refused to extend the existing interpretation provided by the case law on extraterritorial jurisdiction (Duarte Agostinho and Others (dec.) [GC]). Certain (aspects of) the key cases also reiterated well-established case law or well-known Convention principles.

 

Conclusion

 

This post has provided a succinct recap of the Court’s judicial year in terms of key cases. Its overview of case law developments is necessarily incomplete. Yet, this post has shown that although the key cases only provide a fragment of the Court’s judicial activity in 2024, they raised a broad range of substance matters and substantively clarified and developed the Convention interpretation for the years to come.

 

Welcoming Dr. Jasmine Sommardal as Associate Editor

We are very pleased to announce that the editorial team of our blog will be expanded. As of this week, Dr. Jasmine Sommardal is joining us as associate editor.

Jasmine Sommardal completed her PhD at the European University Institute on the topic 'National Security and the European Court of Human Rights: Mediating Challenges through Interdependent Interpretation'. Previously she worked as legal assistant to the former President of the European Court of Human Rights, Mr Robert Spano, and the Finnish Ministry of Foreign Affairs. She was also a visiting researcher at the Hertie School in Berlin. Before joining ECHR Blog, Jasmine held editorial positions at the European Journal of International Law and the European Journal of Legal Studies. 

 

Her research focuses on the ECtHR and national security, general doctrines and methodologies of human rights law, and the practice and procedure of international courts.

 

Welcome Jasmine. We are very happy to have you in our editorial team. Best wishes, 

Kushtrim Istrefi, Antoine Buyse and Matilda Radoš

Webinar: KlimaSeniorinnen v Switzerland: what happens next?

On 22 January 2025, the London School of Economics and Political Science is hosting a webinar 'KlimaSeniorinnen v Switzerland: what happens next? Exploring the pathways to implementation and compliance'. Here is a brief description of the event:

In April 2024, the European Court of Human Rights delivered a pivotal ruling in the case of KlimaSeniorinnen and Others v. Switzerland. The decision has been hailed by legal scholars as a landmark judgment, one that may “transform” climate litigation in Europe and beyond (Bönnemann & Tigre). However, nine months on, questions about the real-world impact of the judgment remain unanswered.

The ruling affirmed that climate change poses a direct and substantial threat to human rights and cemented the obligation of states to undertake effective climate action. On the evidence before it, the Court held that there were several “critical lacunae” in Switzerland’s climate action.

In October 2024, the Swiss government submitted an action report in response to the decision. It argues that, thanks to measures agreed since the Court issued its judgment, Switzerland is now compliant with the Court’s requirements. This position is disputed by lawyers for the plaintiffs. In this event, we will explore the background to the case and what might happen next, picking over the thorny issues raised by the case and Switzerland’s response. We will consider how this case fits into the broader landscape of climate litigation cases against states (known as “government framework cases”), and its implications for the effectiveness of climate litigation as a tool for influencing climate governance.

Speakers

• Kate Higham, Senior Policy Fellow, Grantham Research Institute (Chair)
• Dennis van Berkel, Legal Counsel of the Urgenda Foundation and Strategic Advisor Climate Litigation Network
• Başak Çalı, Professor of International Law, Oxford Bonavero Institute of Human Rights
• Vetle Magne Seierstad, Legal Advisor, Norwegian Human Rights Institution (NHRI)

How to join

This webinar is free to join but you will need to register in advance via Zoom.

75 Years ECHR and its Impact

As we enter the year in which the European Convention on Human Rights will turn 75 (in November) the Council of Europe has updated and expanded its dedicated website on how the ECHR has impacted law, policy and practice across Europe. These special webpages (launched in 2018, on which we reported at the time here) are geared towards a general audience and contain accessible and concise information on leading cases and their aftermath (what happened after the judgment was issued). 

The really attractive feature is that it traces this impact by way of stories of people: they are centred around the often brave applicants who started cases in Strasbourg and, by doing so, triggered changes both within their own countries and across Europe. From Dudgeon to Siliadin, they tell the story of an indeed very living instrument for the protection of human rights. In times like ours, when the situation for human rights seems dire in so many respects, these stories and these judgments remind us of the power, influence and effect that conventions and judgments can have, even if it sometimes takes a lot of time and patience. Several of the stories have been turned into short videos. 

The website is searchable either by themes (from freedom of expression to the protection of the environment, and from human rights and health to the right to property) or by state, the latter enabling anyone read about some of the leading cases related to their country of residence and how they led to real change on the ground. Within those country pages, there are also links to the Court's own 'country profiles' about those states and to the department on the execution of judgments' factsheets on the state of implementation of the Court's judgments and the supervision by the Committee of Ministers.

New Book on the European Court and Constitutional Courts

Marco Simonelli, of the University of Barcelona, has published a monograph on one of the key interactions within the ECHR system: that between the European Court in Strasbourg and domestic constitutional courts. The book is entitled 'The European Court of Human Rights and Constitutional Courts' and was published with Springer. This is the abstract:

This book investigates the relationship between the European Court of Human Rights (ECtHR) and national constitutional courts by providing a more general assessment as seen from the former’s perspective. Adopting an empirical approach, the book reviews all the case law of the ECtHR in which constitutional courts are cited. This represents more than 3,000 rulings spanning more than fifty years, from the establishment of the Strasbourg Court in 1959 – when only three constitutional courts were active – to 1 January 2023, when there were more than thirty active constitutional courts in the Council of Europe’s Member States.

This wide-ranging empirical study pursue several different goals. First, the book provides a quantitative assessment of the relevance of constitutional courts in ECtHR case law and presents weighted data on the frequency and chronological evolution of the citations, as well as individual statistics for each national constitutional court. Second, it assesses the extent of the rationalisation of constitutional justice systems conducted by the Strasbourg Court and defines the standards and elements of the right to a fair constitutional trial under Article 6 ECHR. Finally, combining this extensive dataset with qualitative analysis, the book evaluates how the Strasbourg Court interacts with each constitutional jurisdiction and provides a qualitative assessment of this relationship from the standpoint of Strasbourg case law.'

New Blog Year and New ECHR Readings

On behalf of the editorial team of the ECHR Blog a very happy new year to all our readers! We hope that this will be a good year for you personally and professionally. And let us for sure hope that human rights will become more of a living reality than they were in the last year, in spite of a lot headwind ahead.

This blog is an academic free service to our audience and it is heartening to see the many hours of time we invest in it is reflected in the ways in which many readers find and read the blog. Last year, in 2024, the blog had a record of 981,000 pageviews, higher than ever. Thank you to all our readers, and especially to those among you who keep sending us announcements of ECHR-related events, case commentaries, publications etc. You are the oxygen of our blog. Many, many thanks!

For now, please find below our newest batch of selected academic publications about the European Convention on Human Rights and its Court:

* Antoine De Spiegeleir, ‘Climate change storytelling and masterplots at the European Court of Human Rights’, Law and Humanities (2024):

 
‘Talk of climate change litigation is on everyone’s lips. While some hope binding rulings will drive climate action, others question courts’ expertise, legitimacy, and enforcement capacities. This article adds to the growing literature on climate change litigation by adopting a narrative perspective and centring climate change storytelling, which has so far received little attention in legal circles. To draw broader conclusions about climate narratives in law and pave the way for further research, this article studies the three climate rulings rendered by the European Court of Human Rights on April 9, 2024, through the lens of the concept of ‘masterplots’, that is, story-types that structure our collective narrative expectations.’
 
* Michelle Bruijn, ‘X Factors and Tipping Points in Eviction Cases: A Statistical Analysis of Eviction Litigation of the European Court of Human Rights’ Human Rights Law Review (2024):

 
‘This study is the first to statistically analyse all eviction case law of the European Court of Human Rights up to 2024. It examines the impact of various case characteristics, such as the type of tenure, the reason for eviction and the involvement of vulnerable people, with a specific focus on the role of ownership and property rights. The study evaluates whether evicted homeowners have a higher success rate compared to non-owners, as they can invoke both Article 8 and Article 1 of Protocol No. 1. Additionally, it investigates whether landmark cases like McCann v the United Kingdom and F.J.M. v the United Kingdom serve as ‘tipping points’ that significantly altered the Court’s jurisprudence. The findings highlight the substantial influence of the McCann case on subsequent eviction rulings and reveal that being a tenant in the public rental sector significantly increases the likelihood of the Court finding a violation of Article 8.’
 
* Faraz Shahlaei, ‘A Jurisdictional Vertigo: Compulsory Arbitration, Sports and the European Court of Human Rights’, Journal of Human Rights Practice (2024):
 
‘This article discusses jurisdictional issues when cases related to arbitral awards of the Court of Arbitration for Sport end up before the European Court of Human Rights (ECtHR). By focusing on the ECtHR’s Third Chamber judgment in the Semenya case, it discusses how the unique governance structure of sports governing bodies, as the benchmark for such disputes, has distorted the traditional jurisdictional paradigms of the ECtHR, posing challenges for the Court in addressing potential human rights violations in the realm of sports. This article argues that human rights claims arising from sports activities form a new class of human rights litigation stemming from the activities of private actors with a strong public character. Such dynamics grant the ECtHR a central role as the ultimate arbiter in protecting human rights within the realm of sports and require it to subject the sports proceedings to a comprehensive review both on procedural and substantive grounds, even with relation to athletes residing outside the territory of Council of Europe member States.’

 
* Ceyda Knoebel & Stephanie Collins, ‘Enforcing intra-EU ICSID arbitration awards in a post-Achmea world in Europe: could the European Court of Human Rights assist in resolving the deadlock?’, Arbitration International (2024):
 
‘When, at the enforcement stage, a European Union (‘EU’) Member State’s national court refuses to recognize and/or enforce a final intra-EU arbitration award rendered as per the ICSID Convention on the basis of the Court of Justice of the EU (‘CJEU’)’s decision in Slowakische Republik v Achmea BV, the right to the peaceful enjoyment of possessions, guaranteed by article 1 of Protocol No. 1 (‘A1P1’) of the European Convention on Human Rights (the ‘ECHR’), may be infringed. This article explores that issue. First, and by way of context, it explains the development of the so-called ‘intra-EU objection’ in the context of investor–State arbitration, culminating in the CJEU’s seminal ruling in Achmea and its progenies. Second, it provides an overview of various efforts to enforce intra-EU awards post-Achmea, focusing on ICSID Convention awards that have cleared any post-award remedies under the Convention, and how national courts have approached this. Third, it details how A1P1 of the ECHR might apply to the non-enforcement of intra-EU ICSID awards—engaging in a detailed analysis of the tests that would be applied by the European Court of Human Rights in such an instance. Finally, it discusses the potential remedy before the Court and the consequences for a finding of violation. While this article is focused on final and enforceable ICSID Convention awards, the analysis may be relevant to other intra-EU enforcement scenarios, subject to the specific factual circumstances in those scenarios.’
 
* Helen Keller & Pranav Ganesan, ‘The Use of Scientific Experts in Environmental Cases Before the European Court of Human Rights’, International & Comparative Law Quarterly (2024):
 
‘This article argues that the current approach of the European Court of Human Rights (ECtHR) to evaluating scientific evidence is lacking and hampers its ability to properly handle cases involving questions of science, and particularly environmental cases which are replete with them. It identifies three problem areas in relation to the ECtHR's adjudication of such cases: the evaluation of evidence proving the causation of harm; the extent of the Court's deference to the determinations made by national authorities; and the Court's evaluation of evidence adduced by the respondent State in justifying its conduct as being in line with the standard of due diligence. Several cases that illustrate the recurring problem of the lack of science-based reasoning in the Court's judgments are then identified, highlighting the shortcomings of its approach. Such issues have an impact upon the legitimacy of the ECtHR, and it is therefore imperative that it engages more robustly with scientific evidence. The article suggests the best way to do this would be for the ECtHR to make more use of its power to seek assistance from independent scientific experts in environmental cases.’
 
* Vandita Khanna, ‘Roma vulnerability before the European Court of Human Rights: Towards a structural account’, Netherlands Quarterly of Human Rights (2024):
 
‘It is well-recognised in human rights law and discourse that the Roma community is one of the most ‘vulnerable’ groups in Europe today, but what remains less developed is why and how the Roma are recognised as vulnerable, and what ‘Roma vulnerability’ means. This article posits that a structural account of Roma vulnerability may help in answering these questions. Such a structural account captures the vulnerability of Roma in the past and the present, as taking economic and cultural forms, spread across laws, policies, and actions, and fundamentally linked to the role of the State. The European Court of Human Rights (ECtHR) is, however, yet to acknowledge the structural nature of Roma vulnerability. Without such a structural engagement, there is a risk that human rights violations committed by the State will go unaddressed. The article thus seeks to introduce this structural account in the Court's jurisprudence to better capture the nature, causes, and extent of the vulnerability experienced by the Roma community.’

Call for Papers: The Role of the Causal Inquiry for Finding Breaches of Human Rights Obligations under the European Convention on Human Rights

On 5 and 6 June 2025, Lund University is hosting a workshop on The Role of the Causal Inquiry for Finding Breaches of Human Rights Obligations under the European Convention on Human Right.  

Background

Causation is widely applied in national law for determining responsibility. More generally, it can be regarded as an inherent feature of reasoning about legal responsibility. It underlines any legal inquiry about responsibility and the consequences flowing once responsibility established (see AM Honoré, ‘Causation and Remoteness of Damage’ in A Tunc (ed), International Encyclopaedia of Comparative Law: (Mohr 1983)). At the same time, causation has been difficult to define. (Wright, ‘Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts’, 73 Iowa Law Review (1987–1988) 1001.) National tort law has struggled with this difficulty (Steel, Proof of Causation in Tort Law (Cambridge University Press)).

In contrast, causation has received relatively little attention in international law. It has received barely any attention in human rights law (see the work of Vladislava Stoyanova and David McGrogan). The question as to what causal links are applied in human rights law between state conduct (that can be in the form of acts or omissions) and harm for the purpose of establishing state responsibility, has remained underexplored. No causation standard/test has ever been developed. Any causal inquiries performed by adjudicative bodies, such as the European Court of Human Rights (ECtHR), have been chaotic and inconsistent. One can also say quite unprincipled since different terms that appear to reflect the notion of causation, are used in different judgments. The test of causation required or any evidentiary standards for proving causation, have barely been discussed in the ECtHR’s reasoning.

Recently with the climate-change litigation before the Court, the importance of addressing causation in human rights law, has more clearly emerged. KlimaSeniorinnen is the first judgment where the ECtHR devoted whole sections to the question of causation. In KlimaSeniorinnen, ECtHR addressed causation upfront. The analytical gymnastics that the Court performed in its causation inquiry are yet to be fully understood. The confusion as to what is meant by causation and the links between which things are actually addressed, is pervasive in the reasoning. Overall, it is fair to say that the reasoning regarding causation is confusing and that it is not clear how specifically the ‘real prospect’ test is applied for finding a breach for the claimed omissions in KlimaSeniorinnen.

Such a confusion is not helpful for any national legislator or national court that has to address the problem of climate change and environmental harm from a human rights law perspective. Such a confusion is not helpful since it creates uncertainty at domestic level as to the role of human right law more generally.

Conceptually causation is a key element in the reasoning not only in cases where there might be multiple causes and complex cause-effect relationships, such as climate-change related cases. For example, in every case where an applicant formulates an argument that the State should be found responsible under the ECHR for omissions, a link needs to be established between the claimed omissions and the harm. For example, in the recent case of Biba v Albania, where a child was harmed by another child during their break at the school premises, the ECtHR was clear to the effect that such a link might not be established for the purposes of national civil proceedings (tort law); yet, the link might be found existing for the purposes of establishing responsibility under the European Convention on Human Rights. This could be explained by the different normative underpinnings of human rights law. All of this implie that while national tort law might be relatively more restrictive in finding causal links; human rights law appears to be more generous (possibly to be point of being simply unconcerned about the question of causation). This discrepancy itself can raise a whole set of separate questions regarding, for example, the requirement for exhaustion of domestic remedies.

Purpose and scientific relevance of the proposed workshop

In light of the above-described absence of clarity and unprincipled approach (or rather absence of any approach) to causation in human rights law, the objective of this workshop is to try to disentangle the different ways in which causation is relevant for establishing state responsibility under the ECHR. The objective is to gather a mix of scholars: scholars that have a more theoretical/analytical background, scholars that have a more ECHR case-law oriented research profile and scholars that have addressed causation in national settings (such as tort law).

The objectives of the workshop can be specified in the following way.

First, the participants will be invited to reflect upon certain foundational questions, such as why should causation matter in the context of responsibility in human rights law? How is the answer to this question affected by the normative underpinnings of the ECHR (corrective/individual justice versus deterrence/constitutional justice)? 

Second, drawing from analytical jurisprudence, what is the difference between factual causation and legal causation for the purposes of human rights law? What considerations might be identified in the Court’s reasoning that might be possible to frame as legal causation? Possible examples here are foreseeability of harm, risk of harm, reasonableness.

Third, how is causation relevant in the different admissibility requirements (e.g. victim status, exhaustion of domestic remedies)? Relatedly, how is causation relevant for the purposes of determining remedies? Does the absence of remedial orders (i.e. the Court normally simply grants financial compensation and the execution of the judgment is left to the political body of Committee of Ministers) affect the causation inquiry in the reasoning on the merits? This suggests that there might be linkages between the different stages (i.e. admissibility, merits and remedies) in terms of how causation is approached under the ECHR.

Fourth, how is causation relevant for determining the definitional scope of the right (e.g. in the context of Article 8, the Court has referred to ‘direct and immediate link’ to assess whether the definitional scope of the right is engaged), the existence of an obligation and the breach of this obligation?

The workshop and the publication that will follow, will aim to achieve greater clarity when it comes to causation, particularly given the substantial impact its analysis can have on remedies and the scope of responsibility. The publication will aim to offer the first systematic examination of the rules on state responsibility under the ECHR that require a causal inquiry, and their application and interpretation in the practice of the court.

Timeline

January 2025 – Call for paper proposals. Abstracts should be sent to Vladislava.Stoyanova@jur.lu.se Abstracts should be about one page plus one page bio about the author.

20 February 2025 - Deadline for the call for paper proposals

End of February 2025 - Selection of the participants based on the proposals

March 2025 - Final Program

Workshop – 5th and 6th June 2025 in Lund, Sweden 

Publication plans

Selected papers will be considered for publication in an edited volume.

Practical considerations 

The Centre for European Studies at Lund University has kindly agreed to fund the refreshments and the lunches during the workshop. Unfortunately, travel and accommodation expenses cannot be covered.