The article deals with the impact of the recent jurisprudence of the European Court of Human Rights (ECHR) on the German labour law practice. After a brief introduction of the general importance of the jurisprudence of the ECHR for the German labour law (I.), the authors illustrate the German and the ECHR’s jurisprudence on the duty of loyalty towards the ecclesiastic employer (II.) and whistle blowing (III.). Analysing this jurisprudence, the authors come (...) to the conclusion that the ECHR approved the principles of the German jurisprudence in these cases. Therefore, its impact on the practice will be rather marginal as it does not obtain such a far-reaching significance that a change in the jurisprudence regarding dismissals is to be expected. The judgements merely raised the awareness for the set of problems in the context of ecclesiastic employers and whistle blowing. In this regard, the article will try to provide the reader with basic directions on how to deal with this jurisprudence. Finally, the authors argue that concerns, the ECHR could evolve into a further instance reviewing all German judgements not only regarding the question if there is a violation of the Convention or not but regarding the correctness of the findings are unfounded. On the other side, the article addresses the problem that – apparently – applications have been declared admissible by the ECHR despite Art. 35 para. 1 of the European Convention on Human Rights because the final decision on the national level – dismissing the complaint as inadmissible – did not reveal the reason why the application did not succeed. (shrink)

The paper discusses the context, substance and likely implications of the European Court of Human Rights’ very recent but, in our view, historic decision in the case of Lautsi v. Italy. The article offers an outline of the case and of the decision’s motivation, a presentation of the responses, and a brief discussion of its relevance to the similar Romanian case. We examine in some detail the objections leveled against the ruling, track the progress of the (...) Court’s relevant jurisprudence on the issue, and suggest some possible consequences. (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)

This article examines a recent judgment by the European Court of Human Rights that upheld the complaint of a homosexual woman who alleged that her application for authorization to adopt a child had been refused by domestic French authorities on the grounds of her sexual orientation. I argue that the judgment constitutes an innovative and atypical legal consideration of, and challenge to, the heteronormative social relations of contemporary European societies. After exploring the evidence presented by (...) the applicant, and the Court’s interpretation of it, I argue that in order to reach its judgment it was necessary for the Court to make a significant departure from its established jurisprudence in relation to sexual orientation. An essential element of this involved the adoption of a distinctive critical approach, strongly resonant with aspects of ‘queer theory’, which focused attention on the social, cultural and political construction of normative heterosexuality. Whilst a number of commentators have assessed the importance of the judgment in terms of its evolution of ‘gay rights’ in the area of family life, I argue that the Court’s reconceptualized ‘theoretical’ understanding of, and critical approach to, heteronormativity offers the potential to expand the scope of the European Convention on Human Rights across a number of areas of social life—in marriage, public assembly, freedom of expression, as well as family life—where non-heterosexuals continue to face discrimination in contemporary Europe. (shrink)

The approach of the European Court of Human Rights to cases of religiously offensive expression is inconsistent and unsatisfactory. A critical analysis of the Court’s jurisprudence on blasphemy, religious insult and religious hatred identifies three problems with its approach in this field. These are: the embellishment and over-emphasis of freedom of religion, the use of the margin of appreciation and the devaluing of some forms of offensive speech. Nevertheless, it is possible to defend a (...) more coherent approach to the limitation of freedom of expression under the European Convention of Human Rights, designed to protect religious liberty in a narrower category of cases. (shrink)

In 2023, the Grand Chamber of the European Court of Human Rights issued its ruling in the case of Sanchez v France. The case revolved around the conviction of the applicant, a politician, for inciting hatred or violence against people due to their religious affiliation. What makes this case unique among hate speech cases before the Strasbourg Court was that the applicant’s conviction did not stem from his own words but rather from his alleged failure (...) to promptly remove commends made by others under one of his (non-offensive) Facebook posts. This case has prompted a myriad of significant questions, the main one being, how an earth did we reach a point where imposing a criminal penalty on an internet user for someone else’s speech and how does such a penalty align with the principles of necessity and proportionality outlined in Article 10 of the European Convention on Human Rights (freedom of expression)? This paper aims to address this question by examining the Court’s approach to hate speech, particularly in the realm of politics, how to the Court situates politicians within the scope of Article 10 and how the gradual expansion of ‘duties and responsibilities’ incorporated in Article 10 to engulf those who are not the actual speakers (namely internet intermediaries and, with Sanchez individual politicians). It concludes that Sanchez constitutes a worrying term for the very worst of hate speech and free speech jurisprudence as individuals (at the moment just politicians) have a duty to be vigilant of what others say on the former’s social media pages. If they are not, criminal penalties are deemed to be justified and legitimate by Strasbourg. (shrink)

The article discusses the certain features of the constitutional doctrine of human rights developed by the Constitutional Court of Lithuania which were influenced by the jurisprudence of the European Court of Human Rights, the role of the European Convention on Human Rights as a legal source in the system of sources of constitutional law. The intersection of the jurisprudences, which came into being due to different assessments of the legal (...) regulation in cases where the same legal act was recognized by the Constitutional Court being in compliance with the Constitution and the European Court of Human Rights recognized that the application of the said act was a cause of the violation of a certain person’s rights protected by the Convention (or vice versa) is one of the most important questions and raises many theoretical and practical problems. Different assessment of the legal acts made by the European Court of Human Rights with regard to their compliance with the Conventionshould not be regarded as such an essential circumstance which could lead to possible repeated review of such legal act at the Constitutional Court, such intersection of the jurisprudences, should be solved by ordinary courts while following the doctrine that in cases where legal acts contain the legal regulation which competes with that established in the international treaty, the international treaty should be applied. (shrink)

Since 9/11 the European Court of Human Rights (the European Court) has raised anew the question of the relationship between religion and public education. In its reasoning, the European Court has had to consider competing normative accounts of the secular, either to accept or deny claims to religious liberty within Europe's public education system. This article argues that the trajectory on which the term 'secularism' had been used by the European (...) class='Hi'>Court pointed increasingly towards secular fundamentalism. This study is located at the cutting edge of religion, education and the law and builds on previous work in the field (Arthur, 1998, 2008). It examines, through extensive research of legal cases, the most important developments of the usage of secular and secular education in modern discourse and explores the background to these concepts. Unless otherwise stated, religion in this article shall refer to the Christian tradition because Christianity has been the historical context for the development of the concept of 'secular' in Europe. The paper outlines three models of secular education before moving on to scrutinise how the European Court has understood and evaluated various legal cases before it on the interaction between secular States, public education and notions of religious symbolism and influence. The paper will discuss the significance of the European Court's reasoning and decisions for public education within a secular State context and offer some conclusions on the implications of these decisions. It examines the legal principles that underpin the European Court's supervision of the State's role in the provision of education. It focuses on the chimeric goal of neutrality and highlights the risks attached to the use of an ideological conception of secularism that could lead potentially to the complete removal of the religious as a vital cultural and intellectual dimension of public education. (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)

The book analyses the Indian Supreme Court's jurisprudence on homosexuality, its current approach and how its position has evolved in the past ten years. It critically analyses the Court's landmark judgments and its perception of equality, family, marriage and human rights from an international perspective. With the help of European Court of Human Rights' judgments and international conventions, it compares the legal and social discrimination meted out to the Indian LGBTI community (...) with that in the international arena. From a social anthropological perspective, it demonstrates how gay masculinity, although marginalized, serves as a challenge to patriarchy and hegemonic masculinity. This unique book addresses the lack of in-depth literature on gay masculinity, elaborately narrating and analysing contemporary gay masculinity and emerging gay lifestyles in India and highlighting the latest research on the subject of homosexuality in general and in particular with respect to India. It also discusses several new issues concerning the gay men in India supported by the living law approach put forth by Eugen Ehrlich. (shrink)

In 2011 the European Court of Human Rights delivered 10 judgments in cases against the Republic of Lithuania. In 9 judgments the Court found at least one violation of rights and freedoms guaranteed by the European Convention on Human Rights. Article 6 which provides the right to a fair trial, remains dominant in the applications against Lithuania, since in 7 out of 10 delivered judgments the Court declared violations of Article (...) 6 (mostly paragraph 1 concerning the length of proceedings). In 2011 the Court as well declared violations of prohibition of torture, right to respect for private and family life and the right to free elections. (shrink)

In this paper, the authors first emphasise the connection that exists between bioethics and law. However, special attention is given to the link between bioethics and human rights, which share the idea of protecting similar values, especially the protection of life and human dignity. Identifying the interdependence and interrelation of these concepts is a prerequisite for further exploration of how and in what context the European Court of Human Rights decides on bioethical issues (...) it encounters when ruling on classical human rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms. Once the important features that determine the relationship between bioethics and human rights are identified, these features will be practically examined through the group of cases in which the Court has addressed the issue of mandatory vaccination, which has been in the public spotlight in recent years. (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)

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.

When courts started publishing judgements, big data analysis within the legal domain became possible. By taking data from the European Court of Human Rights as an example, we investigate how natural language processing tools can be used to analyse texts of the court proceedings in order to automatically predict judicial decisions. With an average accuracy of 75% in predicting the violation of 9 articles of the European Convention on Human Rights our approach (...) highlights the potential of machine learning approaches in the legal domain. We show, however, that predicting decisions for future cases based on the cases from the past negatively impacts performance. Furthermore, we demonstrate that we can achieve a relatively high classification performance when predicting outcomes based only on the surnames of the judges that try the case. (shrink)

When courts started publishing judgements, big data analysis within the legal domain became possible. By taking data from the European Court of Human Rights as an example, we investigate how natural language processing tools can be used to analyse texts of the court proceedings in order to automatically predict judicial decisions. With an average accuracy of 75% in predicting the violation of 9 articles of the European Convention on Human Rights our approach (...) highlights the potential of machine learning approaches in the legal domain. We show, however, that predicting decisions for future cases based on the cases from the past negatively impacts performance. Furthermore, we demonstrate that we can achieve a relatively high classification performance when predicting outcomes based only on the surnames of the judges that try the case. (shrink)

The European Convention of Human Rights system was originally created to sound the alarm if democracy was threatened in the member states. Yet, it eventually developed into a very different system with a focus on providing individual justice in an ever growing number of member states. This transformation has raised fundamental questions as to the level of difference and diversity allowed within the common European human rights space. Was the system to rest on minimum (...) standards with room for domestic differences, or was it to create uniform standards? These questions have come up as increasingly contentious issues over the past years and have triggered a number of reforms seeking to introduce more subsidiarity in the system, striking a different balance between the European and national oversight of human rights. The article analyses this turn to subsidiarity by exploring whether the reform process has introduced new forms of difference and diversity within the common space of European human rights. Covering the period from 2000 to the end of 2019 and using a dataset of all judgments of the period, the article provides a structural analysis of developments in reference to the margin of appreciation which is the European Court of Human Rights’ long-standing tool for balancing the common standards, yet leaving space for individual member states to find local solutions to implementing those standards. It concludes that recent developments have contributed to a more federal-style construction of European human rights with more space for differences within the common general standards. (shrink)

Human rights have occupied a variety of roles in the course of history of the European Union. They played a negligible role at the outset, overlooked by the original Treaty of Rome and, even today, the Union's formidable associations with free trade, the single market, and regulation might suggest that it cannot be primarily defined as a human rights organization. The Charter of Fundamental Rights of the European Union has at last acquired binding (...) force, provision is made for the European Union to accede to the European Convention on Human Rights (ECHR), and the Court of Justice of the European Union (CJEU) is to have greater powers of judicial review in the field of police and judicial cooperation in criminal law, an area of obvious relevance to human rights. This chapter highlights some significant developments in the Court's fundamental rights jurisprudence. (shrink)

Since Opuz v. Turkey (2009), the European Court of Human Rights (ECHR) delivered over a dozen judgments in which it examined domestic violence through the prism of gender-based discrimination. Apart from the individual circumstances of the cases, the Court considered the general approach to domestic violence in the defendant states, searching for a large-scale structural gender bias. Hence, although the Court has not directly referred to the notion of “structural discrimination” in relation to domestic (...) violence, it engaged in unveiling this problem within the state parties. Building on the case law of the Court, the article presents and systemizes information that may prove structural gender discrimination in domestic violence cases. It navigates potential applicants through the Court’s interpretation and indicates arguments and sources that may support their claims. In particular, it discusses what kind of data and information may demonstrate the general, discriminatory attitude of the authorities towards domestic violence and what sources the applicants may use while seeking the evidence. (shrink)

Property rights are integral part of the freedom and prosperity of every person, although their centrality has often been misprized and their provenance was doubted. Yet, traces of their origin can be found in Magna Carta, signed by the King of England in 1215. It was a turning point in human rights. Namely, it enumerates what later came to be thought of as human rights. Among them was also the right of all free citizens to (...) own and inherit property. The European Convention on Human Rights was heavily influenced by British legal traditions, including Magna Carta. Among other rights, it also guaranties the right to property as a human right. Moreover, the protection of property rights has been extended to intellectual property rights as well. Namely, the European Court of Human Rights has provided protection of intellectual property rights through the adoption of decisions that interpret the right to property, in relation to intellectual property protection claims. It has extended the human rights protection of property to the mere application for registration of the trade mark. This paper has placed its focus on the development and treatment of the right to property starting from Magna Carta to the European Convention on Human Rights, as modern version of Magna Carta. In this sense, the jurisprudence of the European Court of Human Rights and its role and approach in the protection of the right to property will be examined as well. (shrink)

Two elderly sisters who lived together complained of discrimination on the ground that, when one of them died, the other would face a heavy inheritance tax bill, unlike the survivor of a marriage or civil partnership who enjoys a “spousal exemption” under the Inheritance Tax Act 1984. They lost in both the lower chamber of the European Court of Human Rights and on appeal to the Grand Chamber. At first instance, discrimination was found but held to (...) be proportionate and justifiable; in the Grand Chamber, no discrimination was found, as siblings and spouses/civil partners were held not to be in an analogous situation. As an attempt to avoid a tax borne only by the comparatively wealthy, this case might not naturally engage feminist sympathies. But it demonstrates how unworthy claims can produce positive results by drawing attention to society’s dismissive treatment of old people and calling into question the legal and economic privileges enjoyed by legally-bound couples at the expense of everyone else. (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 application of the state immunity doctrine with regard to the guarantee of access to court in the case-law of the European Court of Human Rights has been proved to be a complicated issue. In the ECHR’s case-law before the case Cudak v. Lithuania, the application of the state immunity doctrine had been considered as a proportionate restriction of the right of access to court even in cases of the realization of the protection of (...) the jus cogens norm which was very much criticized by the scholars of international law. Thus, the referral of the case Cudak v. Lithuania to the Grand Chamber could or should change the ECHR’s case-law in this sphere or at least develop certain criteria which would afford ground for a more effective protection to the right of access to court in cases of the application of the state immunity doctrine despite the fact that this right is not absolute. However, the case Cudak v. Lithuania has not fully satisfied these aims. Contrary, the case Cudak v. Lithuania left much obscurity, giving a strong indication that, what regards the realization of the right of access to court, the state immunity doctrine is more a material than a procedural ban, since the argumentation given by the ECHR in this case does not guarantee practical protection of this right. (shrink)

Forced expropriations of immovable property were common during the Communist era in Eastern Europe. Today, many of the former owners or their heirs are interested in regaining legal ownership of such properties, often decades after the ownership has been reallocated to others. Therefore, the conflict between old and new owners is often resolved in favour of the new owners. While this is understandable from a contemporary political perspective, this approach results in a perpetuation of the results of an earlier (...) class='Hi'>human rights violation, thereby resulting in a new human rights violation which will have to be measured against the European Convention on Human Rights (ECHR) if the state in question has ratified it prior to deciding how to handle the long-term effects of expropriations. Firstly, in the article we will devote ourselves to the interpretation of the right to property with an emphasis on the problem of expropriation. Above all, we will elaborate on the definition of the term “property” as well as positive and negative obligations of the Member States regarding this right. Finally, we will address the question of expropriations prior to the entry into force of the Convention and just compensation under Article 41 ECHR. Interpretation of the right to property will be supported by the jurisprudence of the European Court of Human Rights. (shrink)

Translators at the European Court of Human Rights, as at other international courts, have to deal with two different types of legal terminology in judgments and decisions: on the one hand, terms that would be used by a national practitioner in the relevant language, and on the other, the supranational language that has evolved in general international law or that is specific to the Court itself, being enshrined in its basic texts or case-law. The choice (...) of translation will often be imposed by the source text, which may be a constraint; extensive knowledge of the Court’s autonomous terms and other “linguistic precedent” is vital if they are to be used accurately and consistently. The task of devising and using supranational terms to encompass domestic realities in as many as 47 States is not only that of the drafter; the linguist also has a crucial role to play in conveying the Court’s message in a culture-neutral manner. (shrink)

The term ‘intersectionality’ recognises the need for a ‘holistic approach’ in the determination of the right to be free from discrimination and violence. While the European Court of Human Rights has never expressly used the term, this article argues that the recent case of B.S. v Spain provides an example of a more robust use of Article 14 of the convention taking into account the real life experiences of those facing intersectional discrimination. The decision recognising the (...) special vulnerability of a migrant, female sex worker is therefore both welcome and necessary. (shrink)

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)

Regulatory approach to the right to abortion in Europe is diverse and basically related to the issue of when the right to life begins and how this question is reflected in national legislation. Such an approach and diversity is tolerated by the European Court of Human Rights, but only if some specific standards and criteria formulated in the jurisprudence of the European Court of Human Rights are reflected in national legislation. Research (...) of the Lithuanian legal acts conducted in the light of the jurisprudence of the Court shows that they are not in accordance with the jurisprudence of the European Court of Human Rights and the solutions are therefore suggested. The aim of the article is to systematically analyse the Lithuanian legal acts regulating issues of abortion and to identify the existing problems and provide suggestions as to how to solve those problems with the help of the jurisprudence of the European Court of Human Rights in abortion cases. Analysis of the Lithuanian legal acts reveals that the existing legal regulation and practice is confusing and ambiguous. Abortion questions are regulated in Lithuania by means of secondary legislation, namely by order of the Health Minister which is more than 15 years old, and the classification of diseases dangerous to woman’s health and life is based on international classification that is invalid. The order is not in reconciled with the Lithuanian criminal law. Some other ambiguities and problems are identified in the article. Abortion on a woman’s request in Lithuania is possible by the end of the 12 week of pregnancy and during the entire pregnancy, if it causes danger to woman’s health and life. The Lithuanian legislator requires that both conditions – danger to woman’s health and life – are met in order to terminate pregnancy what is unnecessary and sometimes even confusing. The author suggests providing two separate bases for abortion – danger to woman’s life or health. Foetus problems – if a foetus is irreversibly damaged or suffering from an incurable life-threatening disease, it is not a separate basis for abortion in Lithuania, however those abnormalities of the foetus are related to the health and life of a pregnant woman. In the opinion of the author, looking into the practice of the other EU countries, it is better to provide a separate ground for abortion because of abnormalities of the foetus. The basic problem in Lithuania that is similar in Poland and in Ireland is that there is no clear procedure in case a pregnant woman is not satisfied with the decision of the medical commission regarding the question of her abortion or if the opinion of members of the commission is diverse – no time guidance or appeal institution is provided. (shrink)

The article examines methods of distinguishing positive and negative duties within the provisions of the European Convention of Human Rights as applied by the European Court of Human Rights. It highlights problems with tying positive duties to acts and negative duties to omissions, and sets out a supplemental delineation method when those problems lead to systematic classification errors: duties sort as positive if they have the capacity for multiple fulfilment options and negative if (...) they only allow one fulfilment option. These delineation criteria allow for a more consistent reconstruction of case law and point to a causal mechanism for alleged asymmetries in proportionality review and margins of appreciation. Lastly, there are revisionary implications for human rights scholarship. Judgments have been sorted as positive rights cases because they feature a requirement that states commit to legislative amendment, yet performative acts of amendment may be continuous with underlying negative duties. (shrink)

This paper provides a queer critique of the European Court of Human Rights’ use of ‘European consensus’ as a method of interpretation in cases concerning sexuality rights. It argues that by routinely invoking the notion of ‘consensus’ in such cases, the Court (re)produces discourses and induces performances of sexuality and Europeanness that emphasise sameness and agreement, while simultaneously suppressing expressions of difference and dissent. As a result, this paper contends that the Court’s (...) use of European consensus has ultimately functioned to uphold and sustain the heteronormative order that underpins both the European Convention on Human Rights (ECHR) and European society more generally. This is so, despite the role that European consensus has played in the Court’s recognition of ‘new’ rights for lesbian, gay and bisexual people under the ECHR. Drawing on insights from queer theory, as well as the work of Rancière and Foucault, this discussion is carried out through a close reading of Strasbourg cases relating to sexuality. (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)

Various special investigative methods are more often applied nowadays; their use is unavoidably induced by today’s reality in combating organised crime in the spheres such as corruption, prostitution, drug trafficking, trafficking in persons, money counterfeit and etc. Therefore, special secret investigative methods are more often used and they are very effective in gathering evidence for the purpose of detecting and investigating very well-organised or latent crimes. Both the Convention on the Protection on Human Rights and Fundamental Freedoms itself, (...) i.e. its Article 6, and other international instruments, such as the Council of Europe’s Criminal Law Convention, the Council of Europe’s Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and others, do not prohibit the use of special investigative methods, provided that their use does not violate human rights. The use of special investigative methods, such as undercover agents or other undercover investigative methods, cannot in itself infringe human rights and the right to a fair trial; however, its use must have clear limits and safeguards. The recent judgements of the European Court of Human Rights regarding the use of undercover agents confirm that the use of undercover agents in certain types of cases is often unavoidable and also very problematic, because the Court imposes on the member states of the Convention increasingly wider obligations. Partly this is determined by the fact that the current jurisprudence of the Court is still in the state of formation, therefore many questions are left unanswered. (shrink)

Freedom of religious expression is to many a fundamental element of their identity. Yet the jurisprudence of the European Court of Human Rights on the Islamic headscarf issue does not refer to autonomy and identity rights of the individual women claimants. The case law focuses on Article 9 of the European Convention on Human Rights, which provides a legal human right to freedom of religious expression. The way that provision is (...) interpreted is critically contrasted here with the right to personal autonomy and identity now developed by that court in interpreting Article 8 which contains a right to respect one’s private life. (shrink)

The article underlines the significance of social rights as important constitutional rights of a human being and emphasises the peculiarities of their nature from the point of view of not only national, but also international law. The article presents an analysis of the constitutional doctrine of the protection of guarantees of social rights, which has been formulated by the Constitutional Court of the Republic of Lithuania in the course of considering the issues of reduction of (...) social guarantees—pensions and remuneration, which were determined by the economic crisis. In the Constitutional Court’s jurisprudence the personal right to social security has been construed in the most broad and comprehensive terms. The human rights and freedoms enshrined in the Constitution have been treated as constituting an integrated and harmonious system, and social rights have been interpreted not only as certain obligations of the state to the public, which inter alia are determined by the social purpose of the state, but also as a person’s individual rights, for which judicial defence is guaranteed. Such concept of the said rights has also been influenced by international law, inter alia the jurisprudence of the European Court of Human Rights. Social rights, while being an object of regulation of international law, have been forming the European doctrine of guarantees of these rights and have influenced the concept of these rights in national law. The main attention in the article is devoted to the analysis of the doctrine formulated in the Constitutional Court’s jurisprudence in relation to the correction (limitation) of social rights (payment of pensions and remuneration) under the conditions of economic crisis. In the article the period of formation of this doctrine is divided into two stages: the period of 2002–2006, when the Constitutional Court had to decide regarding the compliance of the legal acts whereby social guarantees had been constricted with the Constitution, and which was caused by the consequences of the so-called Russian economic crisis for the economic development of the state of Lithuania; and the period from 2009 to date, during which the Constitutional Court has been forming the constitutional doctrine of limitation of social rights, which was conditioned by the outcomes of the global economic crisis for the economy of the state of Lithuania. The article raises a question as to whether the constitutional doctrine being formed by the Constitutional Court in relation to the limitation of social rights under the conditions of economic crisis may be assessed as an independent one or whether it still remains to be a separate case of limitation of rights within the general doctrine of limitation of human rights. On the basis of the analysis of the Constitutional Court’s jurisprudence, a conclusion is drawn that the criteria established in the Constitutional Court’s doctrine of limitation of social rights under the conditions of economic crisis are even stricter than the universally recognised criteria for the limitation of human rights in the law of human rights, therefore, it is possible to assess the doctrine of limitation of social rights under the conditions of economic crisis, as formulated by the Constitutional Court during 2009–2012, which is the continuation of the previous doctrine, as an independent doctrine, the basis of which, undoubtedly, remains to be formed by the general principles of limitation of human rights recognised in the law of human rights. The article is not only confined to the analysis of the jurisprudence of the Constitutional Court of the Republic of Lithuania, it also provides examples of construction of the doctrine of social rights (inter alia those influenced by the economic crisis) by certain other constitutional courts. (shrink)

The paper focuses on the general principles established in the caselaw of the European Court of Human Rights while applying and interpreting the Article 3 of the First Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms which provides: „The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice (...) of the legislature.“ Article 3 of the First Protocol enshrines a fundamental principle for effective political democracy, and is accordingly of prime importance in the Convention system. It refers not only to positive obligation of the Contracting State to organize democratic elections, but also guarantees individual rights, including the right to vote and the right to stand for election, although this is not explicitly stated in it. These rights are not absolute; there is room for “implied limitations” and Contracting States are given a wide margin of appreciation in this sphere. However, these limitations must be such that the rights in question were not curtailed to such an extent as to impair their very essence and deprive them of their effectiveness, should be imposed in pursuit of a legitimate aim and should not be disproportionate. (shrink)

Since the proclamation of the Universal Declaration of Human Rights, over 165 countries have incorporated human rights standards into their legal systems: the resulting jurisprudence from diverse cultural traditions creates new dimensions to concepts first articulated in 1948. In this revised second edition, Nihal Jayawickrama draws on extensive sources to encapsulate the judicial interpretation of human rights law in one comprehensive volume. Jayawickrama covers the case law of the superior courts of 103 countries (...) in America, Europe, Africa, Asia, the Caribbean and the Pacific, as well as jurisprudence of human rights monitoring bodies. He analyses the judicial application of human rights law to demonstrate empirically the universality of contemporary human rights norms. This definitive volume is essential for legal practitioners, and government and non-governmental officials, as well as academics and students of both constitutional law and the international law of human rights. (shrink)

A Theory of Interpretation of the European Convention on Human Rights provides a philosophically informed study of the methods of interpretation used by the European Court of Human Rights in Strasbourg. By drawing on Anglo-Americal legal, political and moral philosophy, the book also aims to provide a normative theory of the foundations of the ECHR rights.

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)

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)