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.
|
The validity of a waiver of the right to legal assistance when the |
|
Affaire
Organisations |
|
Verein
Positive |
|
Duarte Climate |
|
Carême v.
Climate |
|
Aydin Sefa
Arrest |
|
J. Paul Getty Cultural |
|
Curfews |
|
Dian v. The |
|
Nealon and
Presumption |
|
Dániel Karsai
The |
|
Ukraine v.
The |
|
M.A. and
Introduction |
|
Pasquinelli
COVID-19. Measures imposed on health care and social health workers |
|
Pindo Mulla v.
Blood |
|
Fabbri and
Alleged |
|
A.L. and E.J.
Remote |
|
Ferrero Age limit in public competition to recruit police officers (Art. 14) |
|
The |
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.