12 April 2024
States’ Extraterritorial Jurisdiction for Climate-Related Impacts
States’ extraterritorial jurisdiction was one of the hot topics decided by the European Court of Human Rights (ECtHR) in Duarte Agostinho. Strictly speaking, the “lack of it” led the ECtHR to declare the complaint inadmissible with respect to all defendant States except Portugal. This finding is in line with previous ECtHR case law but highlights a gap in human rights protection and creates a mismatch between the ECtHR’s case law and that of the Inter-American Court of Human Rights (IACtHR) and the UN Committee on the Rights of the Child (UNCRC). Continue reading >>
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28 March 2024
The Kovačević Case Revisited
On 20 March 2023 the Council of the European Union gave Bosnia and Hercegovina green light to start accession negotiations. However, despite this political endorsement, BiH must fulfill the conditionality criteria, including a series of six judgments by the ECtHR relating to the predetermined ethnic keys. The last case, Kovačević v. BiH, was referred to the Grand Chamber in December 2023. If the Court follows its previous case law, this should force the mono-ethnic political parties and their leaders as well as the EU institutions to insist on de-blocking the constitutional impasse for any realistic steps towards European integration. Continue reading >>
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14 March 2024
CILFIT in Strasbourg
On 19 February 2024, the European Court of Human Rights decided not to answer the Estonian Supreme Court’s request for an advisory opinion on the basis of Protocol 16 (P16). For the first time, it dismissed a request because it did not concern a question of principle concerning the interpretation and application of ECHR rights. The decision is significant because the ECtHR provides clear contours as to what types of questions courts should (not) ask. Continue reading >>
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06 March 2024
The ECtHR Advances the Battle against Racial Profiling in Wa Baile c. Suisse
On 20 February 2024, the European Court of Human Rights decided in the case of Wa Baile c. Suisse on racial profiling. This blog argues that the judgment represents a cautious step forward in the fight against racial profiling and repairs some shortcomings of earlier case law. The ECtHR holds that Switzerland violated Article 14 in combination with Article 8 ECHR. It reverses the burden of proof and accepts that both the lack of an adequate preventive framework and reports by international human rights bodies and NGOs contribute to establishing a presumption of discrimination. Continue reading >>
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20 December 2023
A European Dialogue on Strike Action
With its decision in Humpert and others v Germany of 14 December 2023, the European Court of Human Rights settled a long-standing debate: The ban on strikes for German Civil Servants does not violate the rights under the European Convention on Human Rights. This decision ends the strategic litigating efforts of the applicants and their union to obtain the right to strike for the approximately 1.7 million civil servants in Germany. The judgment is also the culmination of an extraordinarily intense dialogue between Strasbourg and Karlsruhe. Continue reading >>20 December 2023
Not Just Abortion
On 14 December 2023, the European Court of Human Rights ruled in the case M.L. v. Poland. The ECHR decided that the restrictions on abortion rights that Poland had violated Article 8 (right to respect for private and family life) of the European Convention on Human Rights. Contrary to the hopes of the initiators of the case, this is not a European Roe v. Wade moment. The ECHR again refused to affirm that Article 8 can be interpreted as conferring a right to abortion. Nevertheless, the ECHR made significant findings regarding Polish rule of law violations. Continue reading >>
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01 October 2023
False Hope for Democracy in Bosnia & Herzegovina
Bosnia & Herzegovina (B&H) is notoriously hard to govern. Scarred from a bloody war in the 1990s after the collapse of Yugoslavia, the country’s constitutional order emerged in international peace talks in the United States. What later became famous as the Dayton Peace Agreement (DPA) might have stopped the war but, in our opinion, sowed the seeds for complex democratic problems today. As we will show in this text, the ECtHR’s judgments represent a false hope for democracy in B&H, because ethnopolitical parties in B&H will not agree on how to implement the ECtHR’s judgments and the Office of the High Representative will not take a more active role in this context. We therefore argue against an earlier contribution on this blog by Woelk (2023), who suggested that the solution for the implementation of the ECtHR’s judgments should come from within the country, as we will show, ethnopolitical actors do not have a real interest in implementing these judgments. To put it bluntly, change from within is, alas, pie in the sky. It is much more likely that nothing changes and the powers that are remain the powers that will be. Continue reading >>28 September 2023
Act Three for Climate Litigation in Strasbourg
Yesterday, on 27 September 2023, a historic hearing took place before the Grand Chamber of the European Court of Human Rights. The Court heard the Duarte Agostinho case, brought by six Portuguese children and young people against a whopping 33 Member States of the Council of Europe. Having heard two other climate cases this past March (the KlimaSeniorinnen v. Switzerland and Carême v. France cases, respectively), this was the Court’s final hearing before it issues its first-ever findings on climate change. It was also the Court’s first youth climate case. For several reasons, yesterday’s hearing was a historic one: Duarte Agostinho is the Grand Chamber’s biggest-yet climate case, both in terms of the substantive rights invoked and the number of States involved. Continue reading >>
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23 September 2023
Be Careful What You Wish For
The European Court of Human Rights has issued some troubling statements on how it imagines content moderation. In May, the Court stated in Sanchez that “there can be little doubt that a minimum degree of subsequent moderation or automatic filtering would be desirable in order to identify clearly unlawful comments as quickly as possible”. Recently, it reiterated this position. This shows not only a surprising lack of knowledge on the controversial discussions surrounding the use of filter systems (in fact, there’s quite a lot of doubt), but also an uncritical and alarming approach towards AI based decision-making in complex human issues. Continue reading >>
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16 August 2023
The Strasbourg Court Goes Astray
On 1 June 2023, the Grand Chamber of the ECtHR concluded a saga that even experts of the Strasbourg Court might have overlooked. In the Grosam case, the alleged shortcomings in the disciplinary procedure involving a Czech enforcement officer (bailiff) have been addressed. The Grosam chamber judgment was certainly not a routine case. The chamber judgment went to the core of the role of the ECtHR and, if it would have been allowed to stand, it could have seriously undermined the legitimacy of the whole system of the Strasbourg protection. Continue reading >>
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