EC
The European Court of Human Rights between law and politics
Description
I. Seminar: Introduction to Human Rights (3h) – Salle Table
Ronde, MISHA
Julia Kozma (J.Kozma@unistra.fr)
This seminar is aimed at acquainting the students with the main concepts
and principles of human rights law. Starting with an interactive task for
students, in the course of which they are given the opportunity to present
their own understanding and existing knowledge of the international,
regional and national human rights regimes, the history and philosophy of 10
human rights, differentiation from related concepts such as refugee law
and humanitarian law, the main universal and regional human rights
treaties and institutions, and key principles such as universality,
inalienability and indivisibility of human rights will be critically discussed.
At the end of this part, students should feel comfortable in the use of basic
international legal terminology.
The second part of the seminar will look at the substance of different
categories of rights, and related State obligations (respect-protect-fulfil).
Based on the European Convention on Human Rights (ECHR), derogations
from and limitations of human rights will be explained. The right to a
remedy for victims of human rights violations as developed by the
European Court of Human Rights (ECtHR) shall be clarified. Students will
have the opportunity to apply the ECtHR’s proportionality test on a number
of short cases, with the help of a step-by-step analysis tool that will be
handed out to them.
Reading materials:
- Council of Europe, Compass, Manual for Human Rights Education
with Young People, “What are Human Rights?”,
- Nasr, Leila: London School of Economics and Political Science,
Human Rights Blog, “Are Human Rights Really ‘Universal,
Inalienable, and Indivisible’?”
- Madsen, Mikael Rask: “The Challenging Authority of the European
Court of Human Rights: From Cold War Legal Diplomacy to the
Brighton Declaration and Backlash”, iCourts Working Paper Series,
No. 20, 2015
II. Seminar: From an application to a final judgment: how
judgments are written at the ECtHR
Satu Heikkilä (Satu.HEIKKILA@echr.coe.int)
The seminar provides a general view on the ECHR and the functioning of
the Court. The path of an application is followed from the introduction of
an application until the end. We will take a closer look at the admissibility
criteria and see how such applications are treated. Thereafter we will see
what happens to admissible applications and how judgments are drafted.
Finally, we will talk about the Grand Chamber procedure. The procedure at
the Court is illustrated by two example cases which we will discuss during
the seminar. The students are asked to familiarise themselves with these
two cases beforehand:
- ECtHR: H. v. Finland, Application no. 37359/09, 13 November 2012,
available at HUDOC
- ECtHR: Hämäläinen v. Finland [GC], Application no. 37359/09, 16
July 2014, available at HUDOC
11
Reading materials:
- Harris – O’Boyle – Warrick: Law of the European Convention on
Human Rights, 3rd Edition, Oxford University Press, Oxford 2014,
pp. 43-165
- Cameron, Iain: An Introduction to the European Convention on
Human Rights, 6th Edition, Iustus Förlag, Uppsala 2011, pp. 78-166
or the relevant pages of the 7th edition (2014)
Bibliography:
- European Court of Human Rights: Practical Guide on Admissibility
Criteria, Council of Europe/European Court of Human Rights,
Strasbourg 2014 – the Guide is available in several different
language versions at the Court’s website (http://www.echr.coe.int,
under case-law)
- Jacobs – White – Ovey: The European Convention on Human Rights,
7th Edition, Oxford University Press, Oxford 2017
- Leach, Philip: Taking a case to the European Court of Human Rights,
4th Edition, Oxford University Press, Oxford 2017
- Reid, Karen: A Practitioner’s Guide to the European Convention on
Human Rights, 5th Edition, Sweet & Maxwell, London 2015
III. Seminar: The Right to Life and the Prohibition of Torture
and Inhuman or Degrading Treatment
Julia Kozma (J.Kozma@unistra.fr)
“Article 2, which safeguards the right to life and sets out the circumstances
when deprivation of life may be justified, ranks as one of the most
fundamental provisions in the Convention, to which no derogation is
permitted. Together with Article 3 [the prohibition of torture and other
forms of ill-treatment], it also enshrines one of the basic values of the
democratic societies making up the Council of Europe.” The ECtHR has in
its judgments time and again repeated this opinion regarding the right to
life; and indeed, notwithstanding the notion that all human rights are
equally important for a dignified human existence, it is evident that none
of the other rights could be applied if Article 2 ECHR had been violated and
an individual’s life had been taken.
The Court puts the right not to be subjected to torture and inhuman or
degrading treatment or punishment, which is termed as an absolute
prohibition in Article 3 ECHR, on an equal footing with the right to life, as
it enshrines the fundamental notion of the inviolability of human dignity.
Exemplary for many other rights, these two provisions provide an excellent
opportunity to discuss the main difference between absolute rights and
rights that are subject to limitations, thereby enhancing the students’ skill
to apply the ECtHR’s proportionality test, as well as to comprehend State
obligations.
Moreover, both rights raise a number of complex legal and moral questions,
which illustrate the dilemmas often faced by those who are called to
adjudicate on them. 12
Reading materials (students will be requested to prepare a selection of
the below-mentioned cases):1
- ECtHR: Soering v. The United Kingdom, Application no. 14038/88, 7
July 1989
- ECtHR: Öcalan v. Turkey, Application no. 46221/99, 12 May 2005
- ECtHR: Bader and Kanbor v. Sweden, Application no. 13284/04, 8
November 2005
- ECtHR: Pretty v. The United Kingdom, Application no. 2346/02, 29
April 2002
- ECtHR: Vo v. France, Application no. 53924/00, 8 July 2004
- ECtHR: McCann and Others v. The United Kingdom, Application no.
18984/91, 27 September 1995
- ECtHR: Perişan and Others v. Turkey, Application no. 12336/03, 20
May 2010 – FRENCH ONLY!
- ECtHR: Nachova and Others v. Bulgaria, Applications nos. 43577/98
and 43579/98, 6 July 2005
- ECtHR: Soare and Others v. Romania, Application no. 24329/02, 22
February 2011
- ECtHR: Osman v. The United Kingdom, Application no. 23452/94, 28
October 1998
- ECtHR: Ireland v. The United Kingdom, Application no. 5310/71, 18
January 1978
- ECtHR: Z. and Others v. The United Kingdom, Application no.
29392/95, 10 May 2001
- ECtHR: Tyrer v. The United Kingdom, Application no. 5856/72, 25
April 1978
- ECtHR: Selmouni v. France, Application no. 25803/94, 28 July 1999
- ECtHR: Mikheyev v. Russia, Application no. 77617/01, 26 January
2006
- ECtHR: Gäfgen v. Germany, Application no. 22978/05, 1 June 2010,
available at HUDOC
IV. Conflicts of Rights and the European Protection of
Human Rights
Peggy Ducoulombier (ducoulombier@unistra.fr)
Seminar 1. An introduction to the problems raised by conflicting
rights in ECHR Law (2h)
A few years ago, the ECtHR’s case-law was almost silent on the issue of
conflicting rights. Indeed, lodged before an international court, cases are
1 NB: All ECtHR judgments are available at the Court’s website echr.coe.int – HUDOC
database. 13
usually framed as oppositions between individual rights and public
interests defended by respondent States. It may be difficult to apprehend
these cases in terms of opposition between fundamental rights, for which
it is questionable whether the usual rules developed by the ECtHR still
apply. From Chassagnou v. France onwards, the express recognition of
conflicts between rights by the ECtHR has developed and the Court has
tried to lay some rules for the resolution of these cases. The purpose of this
seminar is to analyse and critically assess the Court’s principles on this
issue.
Students should become familiar with several notions of ECHR law, in
particular the doctrine of the margin of appreciation and the
proportionality test.
Reading materials:
General background information on these notions can be found in
textbooks on the ECHR, such as:
- Harris – O’Boyle – Warbrick: Law of the European Convention on
Human Rights, 4th Edition, Oxford University Press, Oxford 2018
- Jacobs – White – Ovey: The European Convention on Human Rights,
8th Edition, Oxford University Press, Oxford 2020
On the specific question of how the ECtHR may solve conflicts between
rights, see:
- De Schutter and Tulkens: “The European Court of Human Rights as
a Pragmatic Institution”, in E. Brems (ed.), Conflict between
Fundamental Rights, Intersentia, 2008
- Ducoulombier, Peggy: “Conflicts between fundamental rights and
the European Court of Human Rights: an Overview”, in E. Brems
(ed.), Conflicts between Fundamental Rights, Intersentia, 2008, p.
217-247, (to be circulated)
- Greer, Steven: “Balancing and the European Court of Human Rights:
a contribution to the Habermas-Alexy Debate”, Cambridge Law
Journal, 2014, 63(2), p. 412-434 (via Westlaw UK, available on the
ENT of the University of Strasbourg)
- ECtHR: Chassagnou v. France [GC], Application nos. 25088/94
28331/95 28443/95, 29 April 1999, in particular § 113
- ECtHR: Gäfgen v. Germany [GC], Application no. 22978/05, 1 June
2010, in particular § 107
- ECtHR: Perinçek v. Switzerland [GC], Application no. 27510/08, 15
October 2015, in particular §§ 198 and 228
Seminar 2. Freedom of expression in conflict (3h)
Although Article 10 ECHR is neither a non-derogable nor an absolute right,
freedom of expression enjoys a privileged status in the ECtHR’s case-law
due to its importance for a democratic society. However, this status does
not mean that Article 10 will automatically prevail in case of a conflict with 14
another fundamental right, in particular a Convention Right. Conflicts with
Article 8 ECHR (in particular the right to reputation and protection for
private life) and Article 9 ECHR (in particular the protection of religious
feelings) are two interesting areas for testing the reality of the importance
given to freedom of expression by the ECtHR.
Reading materials:
On the conflict between Articles 10 and 8 ECHR, see:
- Smet, Stijn: “Freedom of expression and the right to reputation:
Human rights in conflict”, American University International Law
Review, 2010, 26(1), p. 184-236
- ECtHR: Von Hannover v. Germany (no. 2) [GC], Application nos.
40660/08 60641/08, 7 February 2012; and Axel Springer AG v.
Germany [GC], Application no. 39954/08, 7 February 2012
ECtHR: Perinçek v. Switzerland [GC], Application no. 27510/08, 15
October 2015
On the conflict between Articles 10 and 9 ECHR, see:
- Nathwani, Niraj: “Religious cartoons and Human Rights – a critical
legal analysis of the case law of the European Court of Human Rights
on the protection of religious feelings and its implications in the
Danish affair concerning cartoons of the Prophet Muhammad”,
European Human Rights Law Review, 2008, 4, p. 488-507 (available
via Westlaw UK or at the Escarpe Library)
- Tulkens, Françoise: “Conflicts between Fundamental Rights:
contrasting views on articles 9 and 10 of the ECHR”, in Blasphemy,
Insult and Hatred, Finding answers in a democratic society, Science
and technique of democracy, n° 47, Venice commission, Council of
Europe publishing, 2010
- ECtHR: Otto-Preminger-Institut v. Austria, Application no.
13470/87, 20 September 1994
- ECtHR: I.A. v. Turkey, Application no. 42571/98, 13 September 2005
- ECtHR: Sekmadienis Ltd v. Lithuania, Application no. 69317/14, 30
January 2018
- ECtHR: Mariya Alekhina and Others v. Russia, Application no.
38004/12, 17 July 2018
- ECtHR: E.S. v. Austria, Application no. 38450/12, 25 October 2018
Seminar 3. Freedom of religion in conflict (3h)
We saw in seminar 2 that freedom of religion may conflict with freedom of
expression. In addition, Article 9 ECHR has the potential to conflict with
other rights, raising difficult balancing issues while believers may not be
willing to compromise on their values. First, religious beliefs may conflict
with beliefs and principles held by non-religious individuals and secular
societies. On this issue, the doctrine of the margin of appreciation plays an
important role, preserving diversity in Europe. Then, religious beliefs may
clash with the right to non-discrimination. On this matter, the Court has 15
ruled against the protection of religious beliefs, preserving the state’s
decision to promote equality.
Reading materials:
On the conflict between believers and non-believers, see:
- Smet, Stijn: “Freedom of religion versus Freedom from religion:
putting religious duties back on the map”, in Temperman (ed.), The
Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in
the Public School Classroom, Leiden/Boston: BRILL/Martinus
Nijhoff, 2012, available at
http://ssrn.com/abstract=2054694
- ECtHR: Leyla Sahin v. Turkey [GC], Application no. 44774/98, 10
November 2005
- ECtHR: Lautsi and others v. Italy [GC], Application no. 30814/06, 18
March 2011
- ECtHR: S.A.S. v. France [GC], Application no. 43835/11, 1 July 2014
On the conflict between religious beliefs and the protection against
discrimination, see:
- ECtHR: Eweida and others v. UK, Application nos. 48420/10
36516/10 51671/10 59842/10, 15 January 2013, in particular the
cases of Ladele and McFarlane
IV. Thematic Seminar: Women’s rights and gender equality (3h)
Claudia Lam (Claudia.LAM@coe.int)
In the course of this thematic seminar, the students will discuss with an
experienced practitioner in the field issues such as de jure and de facto equality,
stereotypes and prejudice against women, as well as women’s access to justice.
The lecturer will provide students with a number of key statements to be
examined, and together they will solve a practical case study.
Reading materials:
- Dunja Mijatović, Council of Europe Commissioner for Human Rights, “No
space for violence against women and girls in the digital world”, Human
Rights Comment, 15 March 2022
- Dunja Mijatović, Opinion Article, European treaty against women's
violence saves lives, 11 May 2021
- summary of an Issue paper on “Women’s sexual and reproductive health
and rights in Europe”, 5 December 2017, Council of Europe Commissioner
for Human Rights
- European Court of Human Rights Registry Press Unit, Factsheets on
gender equality, violence against women and domestic violence
Modalités d'organisation et de suivi
The EXAM will take place in May. The students will
have to analyse three short cases/questions.
Discipline(s)
- Études anglophones
Informations complémentaires
Coordinator/lecturer: Julia Kozma, Member of the United Nations
Subcommittee on Prevention of Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment (SPT) and former Member of the
European Committee for the Prevention of Torture (CPT, Council of
Europe), independent human rights consultant, teaching staff member
University of Strasbourg
Lecturers: Peggy Ducoulombier, Professor of Public Law, University of
Strasbourg; Satu Heikkilä, Lawyer at the Registry of the European Court
of Human Rights; Claudia Lam, Deputy to the Director, Office of the Council
of Europe Commissioner for Human Rights