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RESPONSIBILITY AND PROTECTION

SHORT TEXTS ON EUROPEAN HUMAN RIGHTS LAW

Stefan Kirchner

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The texts included in this eBook have been published previously as individual
texts on scribd.com and on rladi.com in 2014 and 2015.


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Armenian responsibility for Nagorno-Karabakh and the European
Convention on Human Rights
In the summer of 2015, Last month, the Grand Chamber of the European
Court of Human Rights had to rule on a case involving a longstanding conflict
between two post-Soviet nations which too often hardly make it into the
consciousness of the European public. Even more than Georgia, Armenia and
Azerbaijan are seen by many (central) Europeans as hardly on the European
periphery anymore, due to their geographic location. At the same time are the
two neighbors located on a cultural border — and yet they are both bound
under the European Convention on Human Rights and at least in so far aspire
to a European identity. As such, what happens there is also a concern for the
rest of Europe. Unfortunately, most of Europe has been only too content to
let the conflict over Nagorno-Karabakh remain in a state somewhere between
unsolved and never really peaceful. This is a fate shared by Transnistria and
potentially Eastern parts of Ukraine and to a lesser extent the occupation of
the Northern part of Cyprus and the name dispute between Greece and
Macedonia (the latter sharing the name with a Greek province, which is why
Greece prefers to refer to Macedonia as the Former Yugoslav Republic of
Macedonia or FYROM). While the European Court of Human Rights at times
uses the concept of the margin of appreciation in order to avoid politically
sensitive topics, it did not have the luxury to avoid handling the case of
Chiragov and others v. Armenia. The Grand Chamber found that Armenia,
through its occupation of the disputed area, has jurisdiction over it within the
meaning of Article 1 of the European Convention on Human Rights and
subsequently found a number of human rights violations.


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Displaced Persons’ Rights under the European Convention on Human
Rights
In my last blog post, I had written about the case of Chiragov and others v.
Armenia. This case had been brought by citizens of Azerbaijan which had
been displaced due to the conflict and who were unable to access their
homes as a result thereof. The Grand Chamber found that this amounted to a
violation of Article 8 ECHR and Article 1 of Protocol 1 to the ECHR on the
part of the occupying power, Armenia. The Court also found a violation of
Article 13 ECHR due to a lack of an effective remedy. The case is relevant far
beyond the situation in Nagorno-Karabakh in that it sets an important
precedent for other states. It has to be kept in mind that the Court has
applied the Convention to conflict situations outside the territory of states
parties before. In case of an occupation of a foreign territory by a state party
to the ECHR (but also of course in case of an internal armed conflict), states
which have ratified the Convention now have to expect to be held liable also
for displacements. While proving jurisdiction within the meaning of Article 1
ECHR will often be a challenge for applicants in such circumstances, the
lines between international humanitarian law, refugee law and the ECHR are
not merely blurred, the Grand Chamber of the European Court of Human
Rights has spelled out the rights of those who are forced to leave their homes
due to an armed conflict. Any state party to the ECHR which is
contemplating the use of armed force domestically or abroad has to be
aware of the obligations which have been outlined in this landmark judgment.

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Legal Responsibility for Online Comments: Free Speech after Delfi AS v.
Estonia
In the summer of 2015, the Grand Chamber of the European Court of Human
Rights decided in a case against Estonia that the internet-savvy nation was
right in placing the legal responsibility for online comments on the owner of
the website on which they are published. While freedom of speech is an
important right in a democratic society, the case law of the Court on this right
has been clear enough: it is a right which comes with responsibilities. This
does not necessarily mean implied limitations of this human right but it
means responsibility of website publishers for the content of the website. If a
website publisher wants the benefits of increased user interaction by allowing
comments, the publisher retains the legal responsibility for these
publications. From a legal perspective, the comment is as much attributable
to the publisher as the content created by an employed contributor. Certainly
this is not without risks and it can make debate more difficult, but it also has
to be noted that the material scope of the right to freedom of expression
under the European Convention on Human Rights is very wide. It will
therefore take a lot for a state to be able to limit free speech. Delfi AS v.
Estonia is a reminder of the publisher’s responsibility and is best understood
on the basis of the wide material scope of the right. It will be necessary to
continue to use the freedom of speech actively in order to protect it. Not all
states which have ratified the ECHR are truly free and freedom of speech is
often one of the first human rights to suffer when governments become more
authoritarian. No government should misunderstand this judgment as a
permission to stifle dissent or to restrict freedom of speech. Democracy
needs debate and if necessary also controversy. A truly free society allows
for divergent perspectives and opinions and requires shared values, not
shared views. Many Europeans have experienced totalitarian systems in their
lifetime. Freedom of speech is a right which has to be defended every day
and which, fortunately, can be defended by using it.

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Voting Rights of Prisoners in the United Kingdom and the European
Convention on Human Rights
The voting rights of prisoners have long been a contentious topic in the
United Kingdom, so much in fact that the issue (and in particular the
jurisprudence of the European Court of Human Rights) has played a major
role in the political development of the last months which has led to the very
real possibility of Great Britain abandoning the European Convention on
Human Rights altogether. Fixing this issue in a manner which would be
acceptable to British voters might not be sufficient to ensure continued
popular support for the Convention. A British withdrawal from the
Convention, while perfectly possible under international law, would deal a
serious blow to the European human rights system in general and would
have serious repercussions far beyond Britain. It would also mean the
crossing of a red line as membership in the European Union without respect
for the European Convention on Human Rights (which is not an EU document
but one created by the bigger Council of Europe) is politically unimaginable.
From the perspective of human rights obligations, the UK then would find
itself grouped together with states like Belarus, which would hardly befit the
importance of Britain and its legal legacy of centuries. Just two days ago the
world remembered the 800th anniversary of the Magna Carta, but at the
same time there are fears that Britain could seriously impair human rights
protections internationally. The right of prisoners to vote is only one of many
aspects of the European Convention, but it has achieved a political
importance which makes it important to ask questions which go beyond the
Convention.

If losing the right to vote is seen as part of the consequences which are to be
suffered after one has committed a crime, the question has to be asked how
the function of punishment is viewed by lawmakers. Is the punishment merely
a way of society to take organized and legally phrased revenge, or doesn’t
such a penalty serve a function which goes beyond society’s reaction to a
crime? If criminal law is to be more than organized revenge, punishments
should also aim at (re)integrating the person in question into society. This
includes the participation of every citizen in the democratic process. Taking
away the right to vote means taking away a way to engage with the rest of
society. This measure has the symbolic and practical effect of excluding the
prisoners from the rest of society not only in a physical sense. In the long run,
it seems, society has more to lose by taking away this fundamental
democratic right than by allowing prisoners to vote. As the example of the
UK is showing, the consequences can go farer than one might have
imagined. By moving away from law as a tool for long-term justice towards
law as a tool for revenge, rights are threatened, too.


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Limitations of Journalists’ Rights under Article 10 (2) ECHR
Paragraph 2 of Article 10 ECHR allows for restrictions of the right to freedom
of expression. At times governments might be tempted to restrict journalists’
freedoms when they are deemed to clash with the interests of the state. The
current situation in Azerbaijan is a good example of a government which
accepts human rights obligations on paper but violates them in practice.
Journalism has an important role to play in a free and democratic society but
it is this function which also puts journalists at risk of government
persecution.

When it comes to limitations of media rights in the context of Article 10
ECHR, the European Court of Human Rights has set a high standard. Not
only is the material scope of the freedom of expression under the Convention
is fairly wide, the media enjoy an extremely wide freedom. Given that also the
rights of others need to be protected, in the words of Karen Reid (A
Practitioner’s Guide to the European Convention on Human Rights, 3rd ed.,
p. 345)

“There is not unlimited freedom, however, even for press coverage of matters
of serious public concern, with reference being made to the duties and
responsibilities inherent in the exercise of the freedom of expression,
particularly where the rights of others are involved, requiring journalists to act
in good faith in order to provide accurate and reliable information in
accordance with the ethics of journalism.” In general, “freedom of expression
is not only important in itself, but also plays a central role in the protection of
the other rights under the Convention. Thus the Court consistently gives a
higher level of protection to publications and speech which contribute
towards social and political debate, criticism and information-in the broadest
sense. Artistic and commercial expression, in contrast, receive a lower level
of protection.“ (Ovey and White, The European Convention on Human Rights,
4th ed., p. 320, footnotes omitted) Restrictions must be proportionate to the
aim pursued by the public authorities. (Handyside v. United Kingdom,
Judgment of 7 December 1976, para. 48; on the margin of appreciation
enjoyed by the states in this regard see Urska Prepeluh, Die Entwicklung der
Margin of Appreciation-Doktrin im Hinblick auf die Pressefreiheit, in: 61
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2001, pp.
771-832).

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Avoiding common mistakes when applying to the European Court of
Human Rights
The European Court of Human Rights has published a document entitled
“Common Mistakes in Filling in the Application Form and How to Avoid
Them”
( h t t p : / / w w w. e c h r. c o e . i n t / D o c u m e n t s /
Applicant_common_mistakes_ENG.pdf). Earlier I had mentioned the
professionalization of proceedings before the European Court of Human
Rights: while it is still possible to bring a case to the European Court of
Human Rights, the extensive case law has made this a legal field in which
legal services are important. The fact that an application form is available
online should not mask the difficulties associated with getting it right. Also, a
lot of applications might never have a chance to cross the admissibility
hurdle. European human rights law has become very complex and often will
require legal advice. The document published by the Court recently is a
reminder for lawyers who might not have to do with the Court frequently. It
serves to protect the right to access to justice. Success in proceedings
before the Court, however, will more and more be dependent on expert
knowledge and experience. In so far, European human rights law has evolved
to become true law – different from law in national jurisdictions, but no less
complex.

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Applications to the European Court of Human Rights: A Reminder of
Rule 47
The admissibility requirements to the Strasbourg court which were
introduced on 1 January 2014 are contained in Rule 47 of the Rules of the
Court. Now the court has published a report on the first experiences with the
implementation of Rule 47 of the Rules of Court (http://www.echr.coe.int/
Documents/Report_Rule_47_ENG.pdf). While it is noted positively that the
new rule helps the Registry, there still seems to be a lot of misunderstandings
about the new admissibility requirements (which are not that new anymore).
One issue might be that the six months deadline is still not yet fully
understood: all material has to be submitted within the deadline. It is no
longer sufficient to submit just an application on time and send supporting
documents, such as national court decisions, at a later time. For all practical
purposes applicants and attorneys should think of the application as their
one shot: say everything you want to say, do not keep anything back – and
say it on time. Under Rule 47 the procedure before the European Court of
Human Rights can have very little to do with procedures you might know
from your domestic legal system. This is not a battle, it is a duel. You get the
first shot, but in most cases you also only get one shot. In almost all cases,
the application, with all its constraints, will be your (or your client’s) only
chance for justice in Strasbourg.

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Accession of the EU to the ECHR? — What next after the CJEU’s
Opinion 2/13?
For decades a potential accession of the EU (and earlier the EC) to the
European Convention on Human Rights has been discussed. It would go far
beyond the scope of this blog post to review all the academic literature which
has been produced on this issue over the years, but all of this might have
come to an end last December when the European Court of Justice handed
down its opinion 2/13. The March 2015 issue of the German Law Journal
(www.germanlawjournal,com) was published which featured a special section
dealing with this issue. The articles also explore how a way forward can look
like and it seems likely that this is not the end of the story.

Not only has only the EU’s current approach to becoming a party to the
ECHR been halted, in practice there is already a parallel interpretation of
human rights standards in EU law and under the ECHR. If the EU were not to
become a party to the ECHR, the CJEU will have to ensure that the EU
complies with human rights standards, in particular the EU Charter. As the
EU is becoming an ever more important actor in the lives of Europeans, the
standard of human rights must not fall below the standard imposed by the
ECHR.

The relationship between Europe’s two top courts does not have to become
problematic but it is necessary to keep talking. Close communication
between those who work on the Charter and the Convention respectively can
help increase awareness of human rights issues and increase respect for
human rights on all levels of governance. What is needed is real protection —
not just more paper.

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Health-related workplace discrimination and the European Convention
on Human Rights
The Ebola epidemic has led to fears related to persons who are infected with
the disease, those who are merely suspected of being infected but also of
health care workers and others who work in support functions. This has gone
so far that health care workers have been attacked or quarantined, have
been discriminated against or lost their homes. Such feats are hardly new
and although they might not constitute discrimination on the part of public
authorities, such fears can lead to significant human rights problems, in
particular if the state fails to protect individuals against such discrimination
by private actors. The Drittwirkung (or third party effect) of human rights
provides protection against human rights violations but it is the positive
dimension of the state’s human rights obligations which allows victims to use
(international) human rights litigation to defend their human rights.

In the case of health-related workplace discrimination this tool has already
been used in a case concerning workplace discrimination based on an
employee’s positive HIV-status in which the European Court of Human Rights
found that the courts’ upholding of a termination due to a HIV infection was
incompatible with the European Convention on Human Rights (I.B. v. Greece,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-127055).

In March 2015, a text on Spiegel Online (http://www.spiegel.de/karriere/
berufsleben/arbeitsrecht-kuendigung-wegen-krankheit-ist-gueltiga-1021890.html), Germany’s leading online news magazine, it was suggested
that a weak immune system can be a basis for the termination of a work
contract. While the employer has legally protected rights and interests, it will
be difficult to draw the line between legally permissible terminations and
discrimination which is incompatible with the ECHR. National authorities and
employers have to be aware of I. B. v. Greece and need to respect the rights
protected by the Convention.

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Fighting Human Trafficking and Slavery: The Preventive Dimension of
the European Convention on Human Rights
The European Convention on Human Rights (ECHR) is often perceived
merely as a tool to react to human rights violations, which is hardly surprising
given that the possibility of real litigation between individual victim and
violating state set the ECHR apart from all other international treaties at the
time.

After Siliadin v. France on domestic slavery, the judgment in Rantsev v.
Cyprus and Russia (see Roza Pati, Der Schutz der EMRK gegen
Menschenhandel, in; Neue Juristische Wochenschrift 2011, pp. 128-131.) has
put sexual slavery and human trafficking squarely on the map of European
human rights law. The importance of Article 4 ECHR, the use of the global
definition of slavery within Article 4 ECHR and the jus cogens nature of the
prohibition of slavery ensure that the ECHR protects effectively against
slavery.

This protection is not dependent on human rights litigation. Rather, there
there is also a preventive dimension to the ECHR. This preventive dimension
follows from the obligation of states under Article 1 ECHR. While exhausting
domestic remedies is required in order for an application to the European
Court of Human Rights to be admissible, the Convention provides — without
further requirements — a right of the individual. Article 4 ECHR gives
everyone under the jurisdiction of a state which has ratified the ECHR
protection against human trafficking and slavery. Taking the Rantsev
precedent further (and keeping in mind that the interpretation of the
Convention places a high value on effective protection of human rights), the
Convention could also be employed to protect persons who are currently
outside a state party to the ECHR against being trafficked into the territory of
the states which have ratified the Convention. Article 1 ECHR has a territorial
dimension but it is not purely territorial in nature. Therefore it appears likely
that the case can be made that Article 4 ECHR also obliges states to prevent
trafficking into their territory. What is still necessary are effective measures in
the countries of origin. If, as in the case of Ms Rantseva, the daughter of the
applicant in Rantsev v. Cyprus and Russia, the state of origin is also a party
to the ECHR, the obligation to protect against slavery under Article 4 ECHR is
incumbent on both states. But because slavery is prohibited under a rule of
jus cogens, this obligation is incumbent on everyone, all states and every
individual, at all times, everywhere and without conditions.

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Protection of Boat Refugees through the European Convention on
Human Rights
The dramatic situation of refugees who try to reach Europe’s southern shores
in boats and ships has reached the public consciousness but it is not
matched by a sufficient reaction on the part of political decision-makers. In
cases such as Hirsi Jamaa v. Italy (on refoulement of boat refugees by Italy,
see e.g. Matthias Lehnert, Nora Markard; Mittelmeerroulette – Das Hirsi-Urteil
des EGMR und die europäische Grenzschutzpolitik auf See, in: ZAR 2012,
pp. 194-200) and M.S.S. v. Belgium and Greece (concerning the detention of
asylum seekers in Greece), the European Court of Human Rights has
defended the rights of refugees on several occasions. Especially the Hirsi
Jamaa Case is important because in this case it was held that the states’
jurisdiction within the meaning of Article 1 ECHR is not limited to the territory
but can also cover cases in which the state interacts with individuals on the
h i g h s e a s ( A l b re c h t We b e r, M e n s c h e n re c h t l i c h e r S c h u t z v o n
Bootsflüchtlingen. Bedeutung des Straßburger Hirsi-Jamaa-Urteils für den
Flüchtlingsschutz, in: ZAR 2012, pp. 265-270, at p. 266). Article 3 ECHR
protects against refoulement and Article 13 ECHR gives the individual the
right to seek legal protection against violations of his or her rights (ibid., p.
268). Non-refoulement is not only a rule of jus cogens (Kirchner et al., Coastal
State Obligations in the Context of Refugees at Sea under the European
Convention on Human Rights, in: 20 Ocean and Coastal Law Journal (2015),
forthcoming), it also provides a legal basis for claims under the ECHR.

Often refugees try to reach Europe with little or wrong information about
living and working conditions in the north. Rather than trying to close all
borders, Europe should be more open to immigration (which also makes
sense in the long run, given that Europe’s is an aging society and that the
overwhelming majority of refugees do not want handouts but a chance to
work and to build a better future for themselves and their families). This will
also require refugees to be aware of their rights — including their procedural
rights under the ECHR.


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The Material Scope of the Right to Family Life under Article 8 ECHR after
Senchishak v. Finland: Too Narrow for Comfort

In a recent judgment against Finland (Senchishak v. Finland, Application No.
5049/12, Judgment of 18 November 2014, http://hudoc.echr.coe.int/sites/
eng/pages/search.aspx?i=001-148076), the European Court of Human Rights
has ruled that a paralyzed 72 year old woman can be deported from Finland
to Russia.

Even though the applicant was living with her daughter, a Finnish citizen, in
Finland, the Court found that this was not enough to consider the right to
family life under Article 8 ECHR to be applicable ratione materiae because in
the case of adult children and their parents, the Court requires more than
merely living together and having normal family ties, in particular if children
and parents have not lived together for some time. This reasoning Judgment
is the logical continuation of Kwakye-Nti and Dufie v. the Netherlands and
Emonet and Others v. Switzerland to which the Court makes explicit
reference in Senchishak v. Finland – if by logical one means the continued
weakening of fundamental human rights protections.

This judgment essentially means that moving together with your parents later
in their life, when they need support, does not provide parents not children
with protection under Article 8 ECHR. Not only is this an interpretation of the
word “family” which is very much at odds with the ordinary interpretation
which can be found across Europe, it also includes an element of age
discrimination and disadvantages families who live together in multigenerational environments.

In this judgment the Court places undue emphasis on a dependency
requirement which is not supported by the text of Article 8 ECHR. It also
strikes a blow against health care and care for the elderly at home. The
original sin in this context, however, has been committed a long time ago
when the Court first ruled that the right to family life does not give one a right
to live in the country one wants to live in. Here we see a clear disconnect
between the Europe without borders which is being created by the European
Union and the Council of Europe’s European Convention on Human Rights
which also applies outside the EU. It remains a reality for hundreds of millions
of Europeans who are not EU citizens that they are not as protected as EU
citizens are when it comes to living with family members inside the EU.

The understanding of the term “family” which has been applied by the Court
in Senchishak v. Finland should not be a surprise, given the earlier case law
but it does not necessarily take into account the many different family
constellations and disregards the reality of how life is today for many
Europeans. It is to be hoped that the judgment, which includes a wellreasoned dissenting opinion by the judges from Albania and Bulgaria, is not
the end of this development but that the Court will show some more flexibility

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in the future. Otherwise, both traditional and modern forms of family life
might fall outside the material scope of the right to family life under Article 8
ECHR.


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Domestic Violence and Police Inaction before the European Court of
Human Rights
Even though the Istanbul Convention entered into force earlier in 2014,
violence against women remains an important human rights problem. The 28
November 2014 issue of the Europäische Grundrechte-Zeitschrift, the leading
German-language scientific publication on human rights in the European
Context, has a short text (EuGRZ 2014, 660) on a case which is currently
pending at the European Court of Human Rights. The case, Halime Kılıç v
Turkey, (Application no. 63034/11) concerns the case of a woman – the
applicant’s daughter – who had not only been beaten repeatedly but who
actually had gone to court several times between July and October 2008 and
who had won three separate court orders against her husband, which
required him to move out of the shared home and to refrain from approaching
his wife, the home or her place of work. A few months later, the applicant’s
daughter was dead, murdered by her husband, who then took his own life.
Only a few days earlier had she sought help from the authorities as she had
feared for her life. The court orders had been ignored by her husband as they
had never been enforced effectively. She had not been provided a place in a
shelter for abused women as she had seven children. The applicant claims
that by failing to protect her daughter, Turkey had violated her human rights.
The case has been communicated to Turkey a bit over a year ago but is still
pending in Strasbourg. There have been similar cases on inaction by
authorities before in different international fora and the case highlights not
only the continued need for better protection of the rights of women, it also
shows that the idea of human rights obligations as being primarily negative in
nature, meaning that the state is obliged from taking positive action which
violates human rights, can make officials blind for the positive dimension of
human rights obligations, which means that the state has to take action to
protect human rights also against violations by non-state actors.

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The Prohibition of Begging under the European Convention on Human
Rights
Reaching across the aisle in many directions, more than 100 members of the
Finnish parliament from six different parties have come together propose a
bill which would make begging practically illegal unless a prior permit had
been obtained. (1) However, the proposed legislation raises a number of
issues under the European Convention on Human Rights (ECHR) (2) to which
Finland is a party.

In 2012, the Austrian Constitutional Court (Verfassungsgerichtshof) had to
deal with a similar question after the Austrian state (Land) of Salzburg
prohibited public begging in § 29 of the State Security Law
(Landessicherheitsgesetz). In its decision of 30 June 2012, (3) Austria’s
highest court held that completely prohibiting begging in public areas is
incompatible with Article 10 ECHR, which protects the freedom of
communication as the person who engages in begging communicates about
his or her social situation. (4) The right to respect for private life under Article
8 ECHR, however, was not found to be affected by a ban on begging. (5)

In principle, Article 10 of the European Convention on Human Rights permits
public authorities to impose limits on the right to free speech. Such
limitations have to be “necessary in a democratic society”. (6) While
prohibiting begging can have a positive effect on public order, completely
banning all forms of begging will usually not be necessary in a democratic
society. (7) In particular silent begging was not found to amount to a
disturbance which was so grave that prohibiting it would be necessary in a
civil society. (8) While it might not be permitted to prohibit simply holding up a
sign with a plea for help, the Court left the door open for public authorities to
ban more active forms of begging. (9)

If Finland were to require a permit also for silent forms of begging, the
standard imposed by paragraph 2 of Article 10 of the European Convention
on Human Rights could easily stand in the way of the planned legislation.

It appears questionable how effective this can be. While there appears to be
a similar model in place in Norway, (10) there are no guarantees that the
same approach will also work in Finland. After all, merely having a permit to
beg does not mean that the person who is begging will not be more of a
threat to public order than somebody who is politely asking for help without
having a permit to do so. Personally, I doubt that there is one solution which
fits all situations in which people who live in one of the world’s richest
countries with an excellent social system feel forced to beg in order to make
a living.

Although it would mean more work for local police forces and higher costs,
the by far better solution would be to deal with possible disturbances on a

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case by case basis. This, however, means putting more police officers on the
street – which would increase the general sense of security. Far from calling
for a police state, this approach would enable public authorities to deal with
real threats rather than merely managing potential nuisances.

Notes:

(1) YLE, “MPs back anti-begging motion”, available online at <http://yle.fi/
uutiset/mps_back_anti-begging_motion/7155475> last accessed 26 March
2014.

(2) European Treaty Series No. 5.

(3) Reprinted in: 39 Europäische Grundrechte-Zeitschrift (2012), pp. 762 et
seq.

(4) Ibid., p. 762.

(5) Ibid.

(6) Article 10 (2) ECHR.

(7) Austrian Constitutional Court, supra note 4, p. 765.

(8) Ibid.

(9) Ibid.

(10) YLE, supra note 2.

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Minors as Applicants in Proceedings before the European Court of
Human Rights

In proceedings before the European Court of Human Rights, only one of the
original parties to the legal dispute on the national level is a party to the case
in Strasbourg, although there can be a role for the other side, too.(1) In many
legal systems, minors are represented in court by their parents. This is also
the case when it comes to proceedings before the European Court of Human
Rights. This becomes problematic when it comes to conflicts between
parents and children. This is why the Convention organs also allow minors to
bring applications if they are not represented by their parents.(2)

Article 14 ECHR does not allow for discrimination based on, among other
things, “other status”. This can include age but age discrimination is fairly
common and in many cases justified. The Court, however, interprets the
Convention, the Council of Europe is of course not a party to the Convention.
While imposing not very high requirements terms of legal abilities, the
European Human Rights system accordingly seems somewhat biased
against younger children who are not factually able to ask the Court for help.
It might be useful to consider the creation of a special representative for
children in proceedings at the European Court of Human Rights, in order to
ensure their access to court in cases in which their interests are opposed to
the interests of their parents. Children have rights and in order for these
human rights to be effective – and effectiveness of human rights is a
persistently recurring theme in the jurisprudence of the Court – they have to
have meaningful access to the European Court of Human Rights also in
cases in which their rights might be threatened by their own parents. While
the number of such cases might be small, the European human rights system
will be incomplete without effective guarantees for children,

(1) See Gruodyte et al, Legal Aid for affected non-parties in proceedings
before the European Court of Human Rights, forthcoming.

(2) Rainey et al., The European Convention on Human Rights, 6th ed., p. 32.


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Do residents of Crimea and Sevastopol have to exhaust Russian
remedies prior to bringing a case against Russia at the European Court
of Human Rights?
Article 1 of the European Convention on Human Rights (ECHR), which has
been ratified by 47 states, including Ukraine and Russia, requires – among
other issues – an applicant to be under the “jurisdiction” of the state in order
for an application to the ECHR. Jurisdiction within the meaning of the ECHR
requires control. It is recognized that jurisdiction within the meaning of Article
1 of the European Convention can also exist in situations of military conflict,
in particular in cases of occupation. If victims of human rights violations can
invoke the European Convention on Human Rights in situations of armed
conflict and shifting or illegal control of territory, how can they be expected to
comply with the general requirement(1) to exhaust domestic remedies?
Article 35 paragraph 1 ECHR does not impose an “absolute” obligation.(2) If
there are no domestic remedies available, none have to be exhausted.
Although “doubts”(3) on the part of the applicant about the effectiveness of
any available domestic remedies are not sufficient to free the applicant from
the general obligation under Article 35 paragraph 1 ECHR,(4) the applicant is
not obliged to attempt to exhaust obviously ineffective domestic remedies.(5)

In the case of the parts of the territory of Ukraine which are currently
controlled by Russian and / or pro-Russian irregular armed forces, there are
no effective legal remedies. Therefore, assuming the absence of applicable
effective remedies elsewhere under Ukrainian law, victims of human rights
violations, as well as the relatives of the passengers of flight MH17, can apply
directly to the European Court of Human Rights.

What is new about the situation in the peninsula of Crimea (the term “Crimea”
will be used here to refer to the geographical area of Crimean peninsula,
including both the Autonomous Republic of Crimea as well as the Special
Status City of Sevastopol) is that one state which is a party to the ECHR not
only occupies an other party’s territory or controls it through proxies, as it
continues to be the case in eastern parts of Ukraine, as well as parts of
Cyprus, Moldova and Georgia. (In this context, Ireland could be named as
well. The situation with regard to Ireland, though, is significantly different due
to the positive diplomatic relations between the Republic of Ireland and the
United Kingdom. Yet it is somewhat similar to the other examples because
the 1998 Good Friday Agreement explicitly allowed for the possibility for a
reunified Ireland, which in turn means that the Republic of Ireland has not
given up all claims to the territory held by Britain.) This raises the question
whether victims of human rights violations who are resident in Crimea would
have to exhaust domestic remedies which are made available by the Russian
Federation prior to bringing a case to Strasbourg. Requiring applicants to
exhaust the available remedies offered by Russia would reflect the
applicability of the ECHR all cases in which victims of human rights violations
are under the jurisprudence of a state. Likewise, in cross-border cases, for

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example those in which a permit issued for the operation of a factory which
causes air pollution on one side of the border also affects nearby residents
across the border, recourse has to be sought in the state which has issued
the permit in question. The case of Crimea and Sevastopol, however, is
different. The ECHR is part of Public International Law as a whole. The
prohibition of the use of force, in particular for the acquisition of territory, is a
norm of jus cogens and the prohibition of the recognition of such conquests
is at the very least customary international law, if not jus cogens as well. The
Court must not accept a claim to title to territory which is incompatible with
international law. Were the European Court of Human Rights to require
applicants from Crimea to exhaust Russian ‘domestic’ remedies it would not
mean that the Strasbourg organs or any of the other states which have
ratified the ECHR have explicitly or implicitly recognized Russian sovereignty
over Crimea but only jurisdiction within the meaning of Article 1 ECHR. But
requiring the applicant to exhaust remedies offered by Russia to the residents
of Crimea would also mean requiring the applicant to accept, if only for the
purpose of securing admissibility of their future application to the European
Court of Human Rights, the legitimacy of Russian rule over Crimea – which is
not compatible with international law. Therefore residents of the Crimean
peninsula should not be required by the Court to exhaust local remedies
offered by the Russian Federation before they can bring a case to the
European Court of Human Rights.

Notes:

(1) Article 35 paragraph 1 ECHR.

(2) European Court of Human Rights, Foka v. Turkey, Application No.
28940/95, Decision of 9 November 2006, para. 11.

(3) Bernadette Rainey, Elizabeth Wicks, Clare Ovey, The European
Convention on Human Rights, 6th ed., Oxford University Press, Oxford, 2014,
p. 35.

(4) European Court of Human Rights, Burden v. United Kingdom, Application
No. 13378/05, Judgment of 29 April 2008, paras. 40 et seq.

(5) European Court of Human Rights, Daddi v. Italy, Application No.
15476/09, Decision of 16 June 2009; Rainey et al., op. cit., p. 35.

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The War in Ukraine and Residual Responsibility under the European
Convention on Human Rights for Territories Not Currently Under
Government Control

The shooting down of the Malaysia Airlines commercial airliner MH17 over
embattled eastern Ukraine in July 2014 has raised the question in how far
Ukraine can be held responsible for human rights violations committed by
non-state or foreign actors in parts of Ukraine which are no longer under full
government control. This question is distinct from the question of Russian
responsibility for actions by regular Russian forces and irregular pro-Russian
forces operating on the territory of Ukraine. This kind of legal problem could
only become relevant after international law outlawed the acquisition of title
to territory by armed conquest. Even more recently, the European Convention
on Human Rights(1) (ECHR) outlawed a range of human rights violations and
provided victims of human rights violations with the possibility to sue states
in an international forum.(2) In the case of the murder of the passengers and
crew of flight MH17 the mother of one victim has filed a case against Ukraine
with the European Court of Human Right for failing to prevent the shooting
down of the airliner.(3) From a practical perspective, suing Ukraine is far
easier than suing Russia because at this time it remains unclear who actually
shot down the aircraft. Article 1 ECHR requires the “jurisdiction” of the state
which is accused of having violated human rights. It might well be
significantly easier to prove that Ukraine still has jurisdiction over the
disputed territory than to prove that Russia has acquired jurisdiction.

The concept of jurisdiction within the meaning of Article 1 ECHR, while
heavily influenced by notions of territory,(4) is not limited to a state’s territory.
Indeed, the word territory is not found in Article 1 ECHR.(5) Instead, the
Convention “applies a personal criterion”.(6) Everybody who falls within the
jurisdiction of a state which is a party to the ECHR is protected by it. This can
include all forms of public authority and does not require the individual in
question to be a citizen of the state in question, or of any state for that
matter. For example somebody who lives in state A and applies for a visa in
state B, with state B being a party to the ECHR, falls under the jurisdiction of
state B for the purposes of Article 1 ECHR as far as the visa application is
concerned.

It has long been debated whether military action would be sufficient to trigger
the jurisdiction under Article 1 ECHR of a state intervening abroad. Article 1
ECHR requires “effective overall control”.(7) It does not matter if control is
exercised through armed forces or public administration.(8) Occupation by
military force can go beyond the threshold of Article 1 ECHR and lead to legal
responsibility.(9) The factual control of parts of Ukraine by pro-Russian and
Russian armed forces in itself can amount to an effective overall control.
Whether a person falls under Russia’s jurisdiction has to be decided on a
case by case basis.(10) The exercise of governmental powers is an essential
aspect of statehood and of title to territory – but both aspects independent of

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the issue of jurisdiction under Article 1 ECHR. Therefore Russia can be held
responsible under the Convention without having title to the territory in
question.

But even if the situation in Eastern Ukraine were to trigger the legal
responsibility of the Russian Federation, it would not release Ukraine from all
legal responsibility under the Convention. Instead, even an occupied nation
still retains some residual responsibility under the ECHR. The state, being
represented by the elected head of state, has still some capability to act.
Even if the entire government were in exile or most members of government
were killed, those who validly represent the state, and lacking
representatives, all citizens, remain responsible for the protection of human
rights. Occupation by a foreign power does not free the occupied state from
all human rights obligations. The occupied state must use other ways to raise
the issue in international fora.(11) Against this backdrop, the decision by the
Ukrainian government to stop public services in parts of Ukraine under
Russian or pro-Russian control has to be seen from the perspective of
human rights as well. While there might be many practical considerations for
deciding to end public services and governance activities due to practical
impossibility, human rights obligations under the ECHR are not dependent on
the state’s possibilities. As long as there is jurisdiction, the state has the duty
to respect and protect human rights under the European Convention on
Human Rights. This protection has to be as effective as possible. Strictly
speaking, there is also a kind of responsibility which not follow from Article 1
ECHR but from good faith principles, which are part of international law as
general principles as envisaged by Article 38 of the Statute of the
International Court of Justice.(12) Without any effective local government
there is no jurisdiction within the meaning of Article 1 ECHR. Yet, those
persons who were under the jurisdiction of one state which is losing or
already has lost jurisdiction have a valid expectation to be protected. While
this provides a bias towards assuming the responsibility of the occupying
state,(13) this does not free the Court from the need to positively establish
the new jurisdiction of the occupying power.

The case of MH17 is only the tip of the iceberg. There are numerous other
human rights violations happening in parts of Ukraine which are no longer
under government control. While the government of Ukraine may no longer
have full control over its country’s entire territory, it retains a residual
responsibility for what happens in Ukraine, even in parts of Ukraine which it
no longer controls. The authorities of Ukraine therefore are not in a position
to ignore human rights violations by third parties which are committed in the
territory in question. This means that the Ukrainian government will have to
raise human rights violations in the occupied areas whenever possible and,
once control over the territories will have been restored, will have to ensure
that human rights violations can be dealt with by the authorities, including
courts, in an effective manner.

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Notes:

( 1 ) A v a i l a b l e o n l i n e a t h t t p : / / w w w. e c h r. c o e . i n t / D o c u m e n t s /
Convention_ENG.pdf.

(2) Article 34 ECHR.

(3) No author named, Mother of German MH17 victim takes Ukraine to
human rights court, in: The Telegraph, 30 November 2014, http://
www.telegraph.co.uk/news/worldnews/europe/ukraine/11263486/Mother-ofGerman-MH17-victim-takes-Ukraine-to-human-rights-court.html (last visited
2 December 2014).

(4) See Christoph Grabenwarter, European Convention on Human Rights,
Commentary, C.H. Beck, Munich, 2014, p. 6, who refers to Article 1 ECHR as
“reflect[ing] an essentially territorial notion of jurisdiction” and ECtHR,
Bankovic and others v. Belgium and others, Application no. 52207/99,
Judgment of 12 December 2001, paras. 19 et seq.

(5) Grabenwarter, op. cit., p. 6.

(6) Ibid.

(7) Ibid., p. 8.

(8) Ibid.

(9) Ibid., p. 9.

(10) Cf. ibid., p. 8.

(11) Ibid., p. 7, referring to the relationship between Moldova and the so
called “Moldovan Transdniestrian Republic” (ibid.).

(12) Available online at http://www.icj-cij.org/documents/?p1=4&p2=2.

(13) Grabenwarter, op. cit., p. 9.


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Demonstrations and Restrictions of Journalism under the European
Convention on Human Rights
In recent months, a number of states which are parties to the European
Convention on Human Rights (ECHR), such as Ukraine, Turkey and Germany
(Hamburg, Stuttgart) have experienced large scale demonstrations which
have turned violent. Often, journalists are at risk of being attacked and
injured while reporting from such protests. A recent decision by the European
Court of Human Rights deals with the question how the police and regulate
journalistic activities in such situations.

In Pentikäinen v. Finland the European Court of Human Rights allowed the
police to designate specific areas for journalists, even though this made it
more difficult to report about such protests. One could be forgiven for
considering this case to be fairly simple in nature. While limiting the “if” of the
reporting, not even prescribing “how” to report, the police simply regulated
“where” to report without directly preventing the journalist’s access to the
situation. However, allowing the police to regulate journalistic activities in
such a manner is problematic in two regards – the factual limitations imposed
on journalistic work and the possibility of abuse of such powers.

But that is not the end of the story. What matters really is not so much what
happened in this case but what could have happened next: This police power
can easily be abused by designating areas from which effective reporting is
simply not possible. Also, protests etc. often are not static in nature but fluid
and volatile events. What might have been a perfectly secure place from
which to report in one moment might become an extremely dangerous
location in the next – of so far from the action that no meaningful reporting is
possible simply because there is no access to the necessary information
anymore. It is in this context that the Court’s decision can have challenging
consequences for police forces. Once the decision has been made to
designate a specific area for reporters, the police has an obligation to ensure
that this area remains secure or that reporters are able to leave the area once
when it becomes less than secure. This already follows from the positive
dimension of the state’s duty to protect human life under Article 2 ECHR. On
the other hand does the obligation to protect journalistic freedoms also
require public authorities to refrain from making journalistic work impossible.
If meaningful journalistic work is no longer possible from the designated area,
the state would be in violation of its obligations if it would not designate a
new journalism area from which reporting is possible. In either case, this will
increase the workload of police officers, who would not be available to fulfill
their primary tasks at the same time. It is not permitted that the state bans
reporting a specific situation altogether as this would not be “necessary in a
democratic society”.

Therefore, while the European Court of Human Rights permits the
establishment of journalism zones, police forces are well advised to consider

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whether their establishment is really necessary as it would lead to a number
of follow-up obligations on the part of public authorities. In any case are
authorities obliged to protect the rights and freedoms of everybody under
their jurisdiction – even in very difficult circumstances such as mass protests.

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