Please find below a new selection of recently published scholarship on the European Convention on Human Rights and its Court. Enjoy reading!
* Andreas Hösli & Meret Rehmann, ‘Verein KlimaSeniorinnen Schweiz and Others v. Switzerland: the European Court of Human Rights’ Answer to Climate Change’, Climate Law (2024): ‘In Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the European Court of Human Rights issued its first climate-change-related decision. In a near-unanimous decision, the Grand Chamber of the Court found that Switzerland had breached its obligations under the European Convention on Human Rights. It held that the Alpine state must review and amend its climate change policies accordingly. In this case note, we highlight the key points of the judgment and comment briefly on certain points.’
* Kanstantsin Dzehtsiarou & Niccolò Ridi, ‘The Use of Scholarship by the European Court of Human Rights’, International & Comparative Law Quarterly (2024):
‘The relationship between scholarship and adjudication has attracted considerable attention in recent years, especially in those areas where significant academic expertise has been developed and academic scrutiny of decisions is common. Yet the role of scholars and scholarship in the context of the adjudicatory practices of the European Court of Human Rights (ECtHR) has remained palpably under-investigated. This article begins to fill this gap in the literature by carrying out the first large-scale empirical study of the use of scholarship by the ECtHR. The authors rely on a purpose-built dataset comprising all the citations made by the Grand Chamber of the Court in judgments and separate opinions appended to it. The study finds that the Court's majority uses scholarship for the purposes of reviewing facts and interpreting international and domestic law but does so rarely. The majority of the ECtHR does not use scholarship to interpret the European Convention on Human Rights or for persuasive purposes, unlike the individual Judges in their separate opinions. Indeed, individual Judges refer to scholarship more often, for more varied and arguably different purposes. This use, however, is inconsistent in terms of both frequency and the types of sources referred to.’
* Ignatius Yordan Nugraha, ‘Deferring to Consensus and Procedural Rationality: Assessing the European Court of Human Rights’ Approach to Majoritarian Will’, Asian Yearbook of Human Rights and Humanitarian Law (2024):
‘The purpose of this paper is to explore how the European Court of Human Rights has tackled majoritarian will when dealing with ‘hard cases’ of human rights. Under its jurisprudence, the Court has long relied on the existence of a ‘European consensus’ to interpret the European Convention on Human Rights. However, the Court has inconsistently shifted between deference to and rejection of internal consensus, which refers to the prevailing view held by the majority in a particular state. On the one hand, the Court has deferred to an internal consensus that favours restrictions on abortion, but on the other hand, in cases concerning sexual minorities, it has rejected the use of internal consensus to restrict rights. At the same time, with the Court undergoing a procedural turn where the assessment of proportionality is focused on the quality of domestic decision-making rather than a substantive analysis, today the Court is more likely to defer to reasoned and thoughtful internal consensus, which indicates a new Strasbourg-style majoritarian approach to human rights.’
* Ricardo Pedro, ‘The Portuguese Legal Framework of State Liability for Delayed Justice: The Relevance of ECtHR Case-Laws’, International Journal for Court Administration (2024):
‘This article examines the Portuguese legal framework of State liability for violation of the right to a decision within a reasonable time and, in particular, the extent to which the case-law of the ECtHR has allowed the Portuguese State to comply with the obligation of an effective remedy to guarantee the reparation of the referred damages. Starting from the analysis of the legislative legal framework which, despite admitting the aforementioned liability, does not foresee the specificities that the subject imposes, we then examine how such a task falls to national judges who, under the influence of the ECtHR’s case-law, have gradually developed a State liability framework capable of fulfilling the obligations of the ECHR by the Portuguese State for compensation for violation of the right to a decision within a reasonable time, andallowing for the assurance of a swift indemnity action to repair the resulting non-pecuniary damage.’
* Panagiotis Dimakopoulos, ‘Towards a “narrow” path of recipients of criminal sanctions through the jurisprudence of the European Court of Human Rights’, Yearbook of International & European Criminal and Procedural Law (2024):
‘The present paper aims to investigate, through the jurisprudence of the European Court of Human Rights, the nature of sanctions, starting from the Engel criteria, that are formulated during the years, forming different paths, therefore, their recipients continue to be always people who are convicted with various ways and crimes at domestic level. The paths are different for a common formal qualification regarding the erga omnes, since the sanctions as objectives are not the same for the relative justice. The dissenting opinions of the judges have laid the foundations to put our investigation to a much more in-depth path of a penal culture that behind every appearance judges sees the sanctions of each case with a way to itself.’
* Jonathan Herring & Heloise Robinson, ‘A right to live without stigma? Examining negative stereotyping, negative messages, and Article 8 of the European Convention on Human Rights’, Legal Studies (2024):
‘The purpose of this paper is to examine the contours of evolving jurisprudence on offensive expression and negative messages, and to suggest that it can best be understood by reference to the concept of stigma. At the European Court of Human Rights, there appears to have been an increasing willingness to recognise the harm of offensive expression through an interpretation of Article 8 of the European Convention on Human Rights, but the reach of this case law remains uncertain. In particular, while some cases associate negative expression with negative stereotyping, not all of these cases do, and there are potential conflicts with freedom of speech. In the domestic context, these issues recently arose in a significant case from the Court of Appeal, R (Crowter) v Secretary of State for Health and Social Care. In this case, the appellants argued that a legal provision sends a negative ‘message’, through the negative stereotyping of disabled people, but this ‘message’ is implicit, rather than explicitly articulated. While these developments raise important questions about the future evolution of case law, we propose that a focus on stigma can more clearly highlight the harms involved.’
* James T. Richardson, ‘The Judicialization of Religious Freedom: Comparison of European Court Systems with the U.S. Supreme Court’ in Olga Breskayava, Roger Finke, Giussepe Giordan (eds.), Religion between governance and freedoms (2024):
‘This chapter will first offer a definition and discussion of “judicialization of religious freedom,” including trends and conditions conducive to “judicialization.” Limitations to the development also will be examined under the rubric of “dejudicialization.” Then brief histories of the functioning of two major European court systems, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), will be offered before examining the record of these two courts concerning religious freedom. This will be followed by discussion of the history and functioning of the U.S. Supreme Court, focusing on the role of religious freedom cases. The chapter will close with a comparison of the three court systems on the issue of the judicialization of religious freedom, with attention also given to whether in some court systems dejudicialization may be occurring.’
* János Fiala-Butora, Matthew S. Smith, and Michael Ashley Stein, ‘Disability cause lawyering at the European Court of Human Rights: lessons from strategic litigation on the right to political participation’ in Ingrid Westendorp (ed.), Human Rights Strategies (2024):
‘This chapter explores disability cause lawyering dynamics by comparing the approaches to case selection, argumentation, third-party interventions, and ethical conflicts of several litigants who have brought cases before the European Court of Human Rights (ECtHR) aimed at advancing protections of persons with disabilities’ right to political participation under the Convention on the Rights of Persons with Disabilities (CRPD). This chapter suggests that, in future, disability cause lawyers seeking to advance disability rights movement goals through litigation before the ECtHR should not underestimate how, even in a post-CRPD landscape, disability biases and stigma may influence judges’ interpretation and application of relevant legal standards. Thus, when formulating their litigation strategies, future disability cause lawyers should be especially mindful of how closely their prospective clients’ individual circumstances and legitimate interests in remedying rights violations align with the collective interests of the broader movement in generating progressive legal precedents that promote harmonisation of regional law with the CRPD.’
* Alfonso Ballesteros, ‘Gestational Surrogacy, Private Life and the European Court of Human Rights Case Law’ in José-Antonio Seoane & Oscar Vergara (eds.), The Discourse of Biorights (2024):
‘This chapter analyses the surrogate motherhood case law of the European Court of Human Rights. A case law that focuses on the protection of everyone’s right to respect for private and family life (art. 8 ECHR). Usually the case decision is about the States’ refusal to recognise a birth certificate from a foreign country that has allowed a surrogacy agreement. Court’s decision does not recognize a right to become a father or a mother. And it does not usually declare the right to respect for family or private life of the intended parents has been violated. The decision often states that the right to private life of the children has been violated. Children’s identity and inheritance rights should be protected and the State condemn. This case law leads to protecting children but it leaves little room for the States to oppose surrogacy, whitening the practice.’
* Corina Heri, ‘Climate Change's Bankovic Moment? Understanding the European Court of Human Rights' Duarte Agostinho decision’, European Law Review (2024):
‘On 9 April 2024, the European Court of Human Rights issued three landmark climate rulings. With these rulings, the Court established that it is willing to engage with climate cases, and that States have human rights obligations to regulate and mitigate their greenhouse gas emissions. However, these rulings took a restrictive approach to the spatial scope of States’ obligations. In particular, in the Duarte Agostinho decision, the Court found that States did not have extraterritorial obligations linked to the impacts of their emissions outside their borders. The present article argues that, in doing so, the ruling highlights longstanding problems with the Court’s restrictive, control-based and unprincipled approach to jurisdiction.’
* Douglas C. Wicks, ‘The path of protection of vulnerable migrant women through the jurisprudence of the ECtHR. Evolving protection and ongoing issues’, Yearbook of International & European Criminal and Procedural Law (2024):
‘This paper seeks to analyze the vulnerability of migrant women through the relevant jurisprudence of the European Court of Human Rights. The topics are varied and not exhaustive in this sector and include problems concerning women following a migratory path. A path that addresses trafficking, the exploitation of prostitution, the transnational mothering, the difficulties of family reunification, the critical issues in reception, the phenomenon of female genital mutilation with cases that partially and completely show the vulnerability and at the same moment contributing to an effective and higher level of protection.’
* Artūrs Kučs & Jānis Pleps, ‘Constitutional Identity Between Riga and Strasbourg: The Courts’ Dialogue Developing Latvian Constitutional Law’, Journal of the University of Latvia. Law (2024):
‘The article provides insight into the recent development of the concept of constitutional identity in the Latvian legal system. The authors mainly focus on the dialogue between the national highest courts, especially the Constitutional Court, and the European Court of Human Rights and the Court of Justice of the European Union, concerning the concept of constitutional identity. In recent years, both supranational courts have dealt with cases involving various aspects of Latvia’s constitutional identity and the respected constitutional values, norms, and principles that define it, as well as the relevant jurisprudence of the national highest courts. The case study of Latvia demonstrates that it is possible to guarantee a harmonious approach to implementing constitutional identity in light of the state’s international obligations as a member of the European Union and the Convention on Human Rights.’
* Grazia Eleonara Vita, ‘Cambiamento climatico e diritti umani. Note alla sentenza della Corte europea dei diritti umani Verein KlimaSeniorinnen e altri c. Svizzera’, La Comunità Internazionale (2024).
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