European Human Rights

European Human Rights
E2022
 Welcome
 Writing Exercise
 Videos
 Semester Overview
 Reading Guide
Indholdsfortegnelse
Welcome!.............................................................................................................................................1
Writing Exercises.................................................................................................................................3
Videos..................................................................................................................................................5
Semester Overview................................................................................................................................6
Reading Guide......................................................................................................................................7
1 Introduction......................................................................................................................................7
Supplementary material...........................................................................................................................................8
Supplementary material:........................................................................................................................................11
3 Other Players..................................................................................................................................12
4. The European Convention on Human Rights and the European Court of Human Rights...........14
7-8 Principles of interpretation..........................................................................................................29
9-10 Article 2 and Article 8................................................................................................................36
11 Article 14.......................................................................................................................................40
12 The Climate Case..........................................................................................................................41
13 Quo vadis ECtHR?.......................................................................................................................42
Supplementary material:........................................................................................................................................43
Welcome!
Dear students,
Welcome to European Human Rights in the fall of 2022. The course focuses on the European
Convention on Human Rights and the European Court of Human Rights. However, human rights
protection in Europe does not stop here. Therefore, the European Union and the OSCE (Organization for
Security and Cooperation in Europe) are also on the agenda.
This semester, we will be drawing particular focus to one case, that of Youth 4 Climate Justice v … well,
most of Europe. This case touches on a number of convention principles and admissibility criteria. It also
links the ECHR to other treaties under international law and addresses extraterritoriality. Seeing that
most responding states are members of the European Union, the connection to the EU is made as well.
This case thus provides an anchor point for most classes. While the case serves as an anchor point, we
will, of course, delve into other cases, examples and understandings of the different articles in a context
different from climate change.
The readings for each class is listed below, along with questions meant to guide your reading. Please be
aware that the amount of reading can vary between individual classes, and plan ahead accordingly. The
supplementary materials listed are not mandatory reading, but only there for those who are curious
enough to want to know more.
Best regards,
Ayo, Ulrike and Fenella
Writing Exercises
The exam in this course is a 24-hour written take-home exam. It is therefore useful to practice writing in
English.
You learn just as much from writing as you do from evaluating other students’ exercises. Therefore,
feedback is given via Peergrade, where you anonymously give feedback to each other. If you disagree, you
can flag the feedback, and either Ayo or Ulrike will comment.
It is mandatory to do both of the following steps in one writing exercise
 hand in your writing exercise (anonymously – so no name please!)
 give feedback to (do a review of) two other writing exercises (again anonymously)
You will be given two written assignments during the semester. You must complete both steps within the
same assignment. Peergrade will be used for the uploading of the assignment and the feedback. Feedback is
provided by students, but the lecturers are responsible for the final grading. The assignments are graded
pass/fail.
Be aware that you can only give feedback in the round where you have also handed in a paper. So handing
in a paper in round 1 but not giving feedback will result in you having to do another paper in round 2!
There will also be a third chance during the exam period with a deadline in the beginning of February.
Instructions:
Space limit: 4,800 characters per exercise, not counting footnotes or reference list. Footnotes should
exclusively be used for references.
You can answer the questions one by one or write your own two-page answers.
References: Include your references as footnotes. Make a list of the references used. Use the
Submission Guide available on ItsLearning (this is mandatory!).
The material in the reading guides should form the basis of your answers, but additional references can
and sometimes should be included in your arguments. You may therefore need to do some
independent research.
Feedback: Upload your answers on Peergrade before the given deadline. After the deadline for
submission you will be given the opportunity to offer feedback on other students’ submissions. You
will only be able to give feedback if you have submitted an exercise, and you will only receive
feedback if you yourself give feedback on other students’ submissions. All feedback is given and
received anonymously (so don’t write your name on your exercise).
“Dagstudiet and deltid”: Two groups of students participate in these assignments as the class is
taught both for full-time and part-time students. There is thus a group of around forty students who
participate in these assignments.
You need to register yourself in order to upload your file. Your name will not appear to the reviewer!
Please go to https://app.peergrade.io/join and register yourself with your full name and e-mail address (this
way identify you for the grading – the name will not appear to other students). The code you need is
4E5QKX
After you are set up, you are ready to go!
There is a help video available for the feedback part: http://help.peergrade.io/how-to-s#how-to-for-
students
Writing Exercise no. 1: Principles of interpretation of the ECHR
Find the case of Christine Goodwin v. the UK (application no. 28957/95), Judgment 11 July 2002
1) With reference to the case, please explain the concept of dynamic interpretation.
2) Please explain the relevance of the Vienna Convention on the Law of Treaties to the ECHR.
Remember not to put your name on the WE!
Deadlines…always at 4 pm Danish time.

31/10/2022 for uploading your paper
14/11/2022 for giving feedback
Writing Exercise no. 2: The Right to Life
Find the case of Charles Gard and others v. the United-Kingdom case (Application no. 39793/17), judgment
of 27 June 2017.
1) Discuss the positive obligation of the right to life. Paras. 77-79 may be especially relevant to your
explanation.
2) The UK High Court acknowledged parental responsibility; however, nevertheless appointed an

independent guardian to take care of Charlie Gard’s (the child’s) best interest. The parents wanted
Charlie to undergo experimental treatment and keep life support going whereas the guardian
maintained that it was not in Charlie’s best interest to undergo the treatment (para. 18; see also paras.
67-68). The UK High Court found: ‘I can only hope that in time they will come to accept that the
only course now in Charlie’s best interests is to let him slip away peacefully and not put him through
more pain and suffering.”
Discuss, how the ‘best interest’ of a nine-months old child can be secured. You can refer to the
judgment or make a completely independent argument based on other legal or philosophical sources.
Remember not to put your name on the WE!
Deadlines…always at 4 pm Danish time.

14/12/2022 for uploading your paper
21/12/2022 for giving feedback
Videos
There will be a few videos on selected topics. They are mainly just providing information on the ECtHR
and the life of an application. It is important to know these things, but there is little to discuss here.
Therefore, this information is provided in videos.
Semester Overview
Date Time Classroom Class Topic Teacher

07/09 10-12 U74 1 Introduction Ulrike
12/09 14-16 U151 2 The EU Fenella
21/09 10-12 U74 3 Other players Ulrike
28/09
05/10 10-12 U74 4 The ECHR Ayo
12/10
19/10 Fall break
Extraterritorial Fenella
24/10 14-16 U151 5 application of the
ECHR
02/11
07/11 14-16 U151 6 Derogations Fenella
16/11
Principles and Ayo & Ulrike
23/11 8-12 U64 7-8
limitations
Art. 2 Ayo & Ulrike
30/11 8-12 U64 9-10
Art. 8
07/12
Art. 14 Ayo & Ulrike
14/12 8-12 U81 11-12
The climate case
21/12 10-12 U74 13 Quo vadis Ayo
Reading Guide
1 Introduction
The first lecture will be an introduction to the Council of Europe, and to the Climate Case, which will be a
connecting theme to many of the lectures.
Council of Europe
Orient yourself in the following documents:
The Council of Europe, guardian of human rights (2022) https://edoc.coe.int/en/an-overview/6206-the-

council-of-europe-guardian-of-human-rights.html
1) What is the Council of Europe?
The Council of Europe is Europe’s leading human rights organization, with 46 member states,
including all members of the EU. The Council of Europe advocates freedom of expression and of the
media, freedom of assembly, equality, and the protection of minorities. The council of Europe helps
member states fight corruption and terrorism and undertake necessary judicial reforms...
2) Which treaties or conventions regarding human rights is it responsible for?
The Council of Europe promotes human rights through international conventions, such as the
Convention on Preventing and Combating Violence against Women and Domestic Violence and the
Convention on Cybercrime.
Partial agreements of the Council of Europe (2013) https://edoc.coe.int/en/an-overview/5697-partial-

agreements-of-the-council-of-europe.html
1) Particularly regarding the Venice Commission:
a. What is the Venice Commission?
The Venice Commission is the European Commission for Democracy through Law.
b. What role does the Venice Commission play?
The Venice Commission provides legal advice and assists its member states in bringing their
legal and institutional framework into line with Council of Europe standards of democracy,
human rights and the rule of law. The Venice Commission also played leading role in the
adoption and revision of the constitutions that conform to the standards of Europe’s
constitutional heritage.
The Council of Europe and the European Union - Partners in promoting human rights and
democracy (2020) https://edoc.coe.int/en/different-roles-shared-values/6332-leaflet-the-council-of-europe-
and-the-european-union-partners-in-promoting-human-rights-and-democracy.html
1) What is the connection between the Council of Europe and the European Union?
The Council of Europe and the European Union (EU) are separate organisations which have
different, yet complementary, roles. All EU member states are also members of The Council of
Europe. The two organisations work closely together in areas where they have common interests, as
in promoting human rights and democracy across Europe and in neighbouring regions. They benefit
from the other’s specific strengths, thereby supporting each other’s work.
Resolution CM/Res(2022)2 on the cessation of the membership of the Russian Federation to the
Council of Europe https://search.coe.int/cm/pages/result_details.aspx?objectid=0900001680a5d7d9
1) Why was Russia expelled?
Russia was expelled because of their violations in Ukraine.
The Climate Case
The application
https://youth4climatejustice.org/wp-content/uploads/2020/12/Application-form-annex.pdf
Setting the scene: https://theconversation.com/childrens-climate-change-case-at-the-european-court-of-
human-rights-whats-at-stake-151417
From the applicant’s view https://www.ejiltalk.org/climate-change-and-the-european-court-of-human-rights-
the-portuguese-youth-case/
1) Who are the respondents?
The respondents are 33 European countries.
2) Why are there so many respondents?
There are so many respondents, because they are all alleged of breaching their Convention rights
through their respective contributions to climate change. The Portuguese young people argue that the
33 countries have shared international responsibility for contributing to climate change and going
through a lengthy and costly litigation in national courts is not the appropriate avenue.
3) What paragraphs of the European Convention on Human Rights is the application relying on?
The case is communicated under Articles 1, 34, 2, 3, 8, 14 and A1P1 of the ECHR
4) What other sources of international law is the application relying on?
The Paris Agreement 2015, agreement under the UN Framework Convention on Climate Change
5) What are the claims of the applicants?
The applicants claim, that the respondents are breaching their rights, and not doing enough for
Climate Change. The allege violations of these articles:
• Article 2: Requirement of States to ensure legislative and administrative framework to
provide effective deterrence against threats to the right to life
• Article 8: Reasonable and sufficient measures capable of protecting the right to a private
life, a home and a healthy, protected environment
• Article 14: Because of their age, the burden of climate change will impact the applicants
more
6) Why do the applicants consider themselves to be victims?
They believe, that because of their young age, they will be more impacted by the burden of climate
change.
Supplementary material
Judgment on a national climate case, regarding Shell, from the Netherlands:
 https://www.theguardian.com/business/2021/may/26/court-orders-royal-dutch-shell-to-cut-carbon-
emissions-by-45-by-2030 (newsitem)
 https://uitspraken.rechtspraak.nl/inziendocument?
id=ECLI:NL:RBDHA:2021:5339&showbutton=true&keyword=shell (the judgment in English)
2 The European Union
Eleanor Spaventa: Fundamental Rights in the European Union, in: Catherine Barnard and Steve Peers:
European Union Law 3rd edition, Oxford University Press, 2020, pp. 243-282. ItsLearning
1) How did the European Court of Justice handle fundamental rights issues before the Lisbon
Treaty?
a. What are the ‘general principles of Community law’, and how do they relate to
fundamental rights? How did fundamental rights develop in the case law?
In the case of Stauder (Stauder v City of Ulm, where the applicant was claiming entitlement
to cheap butter. A case about protection of human rights in the EU), the Court found and
made it clear that:
It considered fundamental rights unwritten general principles applicable to the acts of the
Communities´ institutions;
It would protect such rights, so that an act of the Communities adopted in breach of
fundamental rights would be declared void; and
If more than one interpretation of a legal instrument was possible, that which did not
infringe fundamental rights would have to be adopted.
Furthermore the Court clarified in subsequent case law, that in deciding which fundamental
rights formed part of the general principles of Community law it would draw inspiration
from constitutional traditions common to the Member states and from international Treaties
for the protection of human rights to which Member States were signatory or had
collaborated; of those, the most significant is without the doubt the ECHR.
b. How could fundamental rights act as limit to the acts of
i. Union institutions?
Fundamental rights as general principles of Union Law apply first and foremost as a
limit to the acts of the Union institutions. Therefore, respect for fundamental rights
is a precondition for the legality of any act of the Union, whether administrative or
legislative.
ii. Member States?
EU fundamental rights also apply, somehow more controversially, to the acts of the
Member States when they are implementing EU law, or when they act within its
scope. The basic principle behind this interpretation is that when Member States
implement Union law, or act within its scope by limiting one of the rights granted by
the Treaties, they have to comply with all of the constitutional principles of the EU,
including fundamental rights protection. Thus, if a Member State is implementing a
regulation or a directive it has to exercise its discretion in a manner that is consistent
with EU fundamental rights (as well as with national fundamental rights where this
is appropriate).
2) Describe the significance of articles 6, 7 and 19 TEU in relation to fundamental rights?
Article 6 TEU assures the protection of fundamental rights in the EU. Also, Article 6 TEU brings
changes for the Member States. By turning the Charter of Fundamental Rights into a legally binding
instrument, Article 6 TEU also obliges the Member States to respect the provisions of the Charter.
Article 7 TEU is a procedure to allow the EU to react to a serious or persistent breach of the values
contained in Article 2 TEU by one of its Member States. Article 7 TEU provides two safeguard
mechanisms to ensure compliance with the foundational values by the Member States.
Article 19 TEU  The court of justice of the EU
3) What is the legal status of the EUCFR?

The EUs Charter of Fundamental Rights was drafted using a new procedure which involved not only
representatives of national governments but also representatives of national and European
parliaments.
The EUCFR has the same legal power as an EU treaty. Meaning it is superior to domestic law.
4) Describe the basic structure of the EUCFR?

The EUCFR is divided into titles according to six fundamental values: dignity (art. 1-5), freedom
(art. 6-19), equality (art. 20-26), solidarity (art. 27-38), citizens´ rights (39-46), and justice (art. 47-
50). While art. 51-54 set out the scope of application of the Charter.
The charter is also complemented by explanations which clarify the scope and, most importantly, the
source of each of the Charter rights/provisions.
5) Why is Article 52 EUCFR important?

Article 52 EUCFR is about the scope and interpretation of rights and principles. The article is
important for the correct interpretation of the EUCFR.
Article 52(1) states that limitations on the exercise of Charter rights must:
Be provided by law
Respect the essence of those rights
Respect the principle of proportionality; and
Be necessary to meet the objectives of general interest recognised by the Union or the need to protect
the rights and freedoms of others.
Furthermore article 52(2) clarifies that Treaty-derived rights are to be exercised according to the
conditions and limits defined by the Treaties.
Article 52(4) provides that rights resulting from common constitutional traditions must be
interpreted in harmony with those traditions.
6) What is the principle of mutual trust in EU law?

The principle of mutual trust is presented as “based on the fundamental premiss that each Member
State shares with all the other Member States, and recognises that they share with it, a set of
common values on which the Union is founded, as stated in Article 2 TEU”
7) What does the case-law of the ECtHR mean for the interpretation of the EUCFR? x
8) What is the connection between the EUCFR and the ECHR? x
9) What is the doctrine of equivalent protection?
The doctrine of equivalent protection which first introduced in the case-law of the European Court of
Human Rights, and in particular in the Bosphorus case, undermines the independent personality and
separate responsibility of the international organization and made an exception to it. Under this
doctrine, EU member states will be internationally responsible if they do not protect fundamental
human rights at a level equal to the European Convention on Human Rights. In other words, when a
state transfers its competence to an organization, it is necessary to ensure that it fulfills its other
international obligations.
10) What is the background, status and likely future of EU accession to the ECHR? x
van Zeben, J. (2021) The Role of the EU Charter of Fundamental Rights in Climate Litigation, German Law
Journal 22, 1499-1510. doi:10.1017/glj.2021.78.
Court of Justice of the European Union: http://curia.europa.eu/jcms/jcms/j_6/en/
Supplementary material:
Kuijer, M. (2020) The challenging relationship between the European
Convention on Human Rights and the EU legal order: consequences of a delayed accession, The
International Journal of Human Rights, 24:7, 998-1010, DOI: 10.1080/13642987.2018.1535433
Lock, T. (2020). The Future of EU Human Rights Law: Is Accession to the ECHR Still Desirable?
Journal of International and Comparative Law, 7:2, 427–447
Roes, T., & Petkova, B. (2019). Fundamental Rights in Europe after Opinion 2/13: The Hidden Promise of
Mutual Trust. In C. Landfried (Ed.), Judicial Power: How Constitutional Courts Affect Political
Transformations (pp. 202-230). Cambridge: Cambridge University Press. doi:10.1017/9781108348669.010
EU position paper ECHR March 2020
https://www.coe.int/en/web/human-rights-intergovernmental-cooperation/accession-of-the-european-union-
to-the-european-convention-on-human-rights.
https://www.europarl.europa.eu/legislative-train/theme-area-of-justice-and-fundamental-rights/file-
completion-of-eu-accession-to-the-echr
The Irish Times, Feb 26, 2022 The EU and The ECHR
3 Other Players
The OSCE:
About the OSCE: https://www.osce.org/files/f/documents/d/d/35775_8.pdf
1) Describe the OSCE’s approach to security. x
2) Where and how does the OSCE work? x

3) Are the decisions taken here politically or legally binding? What is the difference? x
Zannier, Lamberto, ‘Human Rights and the OSCE’s Comprehensive Security Concept’
https://www.osce.org/files/f/documents/b/b/103964.pdf
1) What are the three dimensions of security?
- Politico-Military Dimension
 Arms and border control

 Police training
 Counter-terrorism capacity building
- Economic-Environmental Dimension
 Economic development
 Environmental protection
- Human Dimension
 Election monitoring
 Human rights  violating human rights causes reactions that lead to
instability and potential conflict. The state has an obligation to assure that
people don’t breach each other’s human rights.
 Democracy 
 The rule of law 
 Freedom of the media
2) How do human rights principles balance with the principle of non-intervention? x
3) Why are OSCE decisions relevant in international human rights protection?
Although the OSCE was created as a “security organization” and is dedicated primarily with
“security and co-operation” issues, the OSCE understands security in a broad sense. It defines
security not only by the absence of armed conflict – negative peace – but as a situation, which
ensures the protection of human rights. In order to promote its human Rights aspect, the OSCE has
introduced “the human dimension” into its activities. Thus although the Organization’s focus is
conflict prevention through international security and inner-state conflict resolution, it understands
that this cannot be achieved without democracy building, maintaining the rule of law and protecting
and promoting Human rights within all participating States. Its institutional approach is
comprehensive and can be an interesting tool since most of the issues tackled are interdependent.
https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-JU(2002)044-e
https://www.osce.org/whatistheosce
4) How is implementation of commitments ensured/enhanced? x

Härtel, André, and Anton Pisarenko and Andreas Umland, ‘The OSCE’s Special Monitoring Mission
to Ukraine’, 31 (2020) Security and Human Rights, 121-154.
The article is obviously a bit outdated as the war of Ukraine is playing out at this very moment
in the monitored region. Yet, the article shows how human rights are sought to be protected on
the ground and in the long run – and how difficult that is. The SMM was closed on 31 March
2022.
1) What made it difficult to find a good mandate for the SMM? x
2) What is the role of the SMM? x
3) What is the mandate of the SMM? x
4) Why is the SMM important? x
5) What is the critique of the SMM? x
6) Regarding the part “Russian Diplomatic and Political Sabotage of the SMM’s
Operation” – what and how have any of the thoughts come true in the current conflict? x
7) Should the OSCE take a step back from its consensus decision-making? x
International Law:
You do not need to have read these documents in detail. Rather, consider, if and how they can be relevant for
the ECtHR.
 The Paris Agreement: https://unfccc.int/sites/default/files/english_paris_agreement.pdf
 Convention on the Rights of the Child:
https://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
 Draft articles on state responsibility:
https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf
4. The European Convention on Human Rights and the European Court of Human Rights
Gerards, Janneke: General Principles of the European Convention on Human Rights, Cambridge
University Press 2019, chapters 1, 2, 3 and 4
1. Summarize the principle of effectiveness
The notion of effectiveness provides the Court with important guidance in interpreting the
Convention and in assessing the reasonableness and acceptability of interferences with the
Convention rights.
Also connected to art. 1 of the Convention to ‘secure to everyone within their jurisdiction the
rights and freedoms defined in the Convention and its Protocols’
2. Summarize the principle of subsidiarity
The Court’s task is mainly one of checking whether the national authorities have complied with
the obligations they have undertaken under the Convention. Very roughly, this is what is called
‘subsidiarity’.
Protocol 15.
3. What is meant by the “Double Role of the ECtHR”?
Based on Article 19 ECHR, the Court’s first and main function is that of supervising the
compliance by the States with their obligations under the Convention in concrete cases and of
offering individual redress if need be.
The second main function of the Court is of more constitutional nature, namely, to clarify the
minimum level of protection of fundamental rights that should be guaranteed in all Convention
States. This function is expressed in the text of the Convention where the Preamble stresses the
importance of a system of collective enforcement of fundamental rights.
4. What is the structure used by the Court in reviewing convention rights?
If an allegation is made at the Court that a Convention right has been infringed, the first question
that arises is whether one the Convention provisions is applicable at all.
- This is stage 1, the stage of determination of applicability or of interpretation.
- Second, the question is whether the facts disclose that this right is interfered with:
this is stage 2, the stage of determination of an interference.
- And third, if the Court has found that there is an interference with a Convention
right, it must explore where there is a possibility for justification of that
interference, and if there is, whether there is such a justification in the case at
hand. This is stage 3, the stage of justification of restrictions.
5. How does the author categorize the types of rights? Which rights belong to the different
categories?
The author distinguishes six different categories of Convention rights:
1) ‘Absolutely absolute’ rights or non-derogable rights
 No limitations to the exercise can be accepted whatsoever, and these rights
cannot even be restricted in times of emergency or war (cf. Art. 15 ECHR);
they are so-called “notstandsfest”.
The rights belonging to this category are the prohibition of torture and
inhumane or degrading treatment or punishment (art. 3 ECHR), the
prohibition of slavery (Art. 4(1) ECHR), the prohibition of retroactive
application of criminal law (Art. 7(1) ECHR) and the freedom of conscience
(Art. 9(1) ECHR).
2) Absolute rights that are not “notstandsfest”
 These rights are of an absolute nature, but only to the extent that they can
never be derogated from in times of peace. In case of an emergency
threatening the life of the nation, however, Article 15 ECHR permits certain
limitations and restrictions to be made to the exercise of their rights. Examples
of rights belonging to this category are the prohibition of forced labour Article
4(2) and (3)(c) ECHR and the right to liberty (Art. 5 ECHR).
3) Non-absolute or derogable rights with express, specific limitation clauses.
 Several provisions of the Convention and its Protocols contain express
limitation clauses that define a number of very specific conditions for a
restriction to be permitted. The right to life of Article 2 sometimes is referred
to as an absolutely absolute provision, but obviously this is only true insofar as
the limited expectations of article 2(2) ECHR do not apply. Equally limited
and well-defined limitation clauses can be found in Article 4(3) ECHR
(prohibition of forced labour), Article 5 (right to liberty) and Article 6 (right to
a fair trial).
4) Non-absolute or derogable rights with express, general limitation clauses.
 Convention provision which provide a general definition of the protected
right in the first paragraph of the article and contain a general limitation clause
in the second paragraph. General limitation clauses of this type can be found
in Articles 8, 9, 10 and 11 of the Convention (protecting, respectively, the
right to private and family life, religion, expression, and assembly and
association), Article 1 of Protocol No. 1 (right to property) and Article 2 of
Protocol No. 4 (Freedom of movement).
5) Non-absolute or derogable rights without express limitation clauses,
which allow for implied or inherent limitations.
 For some rights, the Court has accepted that it is self-evident that some
rights, that do not express, specific or general limitation clauses, cannot be
exercised in an absolute manner.
6) Other non-absolute or derogable rights.
 Some Convention provisions do provide possibilities for limitation, but
they are difficult to place in one of the precious categories. A notorious
example is Article 12 ECHR, which stipulates that ‘men and women of
marriageable age have the right to marry and to found a family, according to
the national laws governing the exercise of this right’.
6. In chapter 2.2, the author lists two different approaches regarding the Court’s potential
review of legislation. How do these differ, and when are they applied?
- In many cases, the Court has held that purely concrete review is the preferable
option and no abstract review of the underlying legislation is needed. This
approach fits in a long line of case law in which the Convention bodies have found
that they are only competent to examine the compatibility of national legislation
with the Convention in respect of its application to a specific case, and not the
legislation as such.
- The second approach will usually lead to a two-step review, in which the Court
first reviews the legislation in the abstract and then looks into the application to
the facts of the case. In some cases, the abstract review of legislation may already
disclose that the legislation violates the Convention.
7. What role does precedent play in the Court’s case law?
The Court har chosen to develop an approach that comes rather close to a precedent-based
system:
- The Court is not bound by its previous judgment. However, it usually follows and
applies its own precedents, such a course being in the interests of legal certainty
and the orderly development of the Convention case-law. Nevertheless, this would
not prevent the Court from departing from an earlier decision if it was persuaded
that there were cogent reasons for doing so. Such a departure might, for example,
be warranted in order to ensure that the interpretation of the Convention reflects
societal changes and remains in line with present-day conditions.
- The Court’s use of precedent shows two classic strategies of judicial
argumentation: distinguishing and departure from precedent. The strategy of
‘distinguishing’ means that the Court explains that the factual or legal situation in
a previous judgment differs from the case at hand and therefore the case should be
decided differently or based on different standards. This strategy allows the Court
to judge the new case individually on its merit, or perhaps sidestep less fortunate
standards that have been developed in an earlier case or line of case law.
- In other cases, but only rarely, the Court explicitly departs from its precedents.
Mostly, it will do so because it has turned out that the existing precedents have
created too much uncertainty, or the formulated standards appear to be difficult to
apply in practice.
8. What is meant by “incrementalism” and “equilibrium”?
Incrementalism  This approach includes for the Court to work from case-based and
individualised judgments to the definition of general principles. The Court often uses this
approach if it has to address a relatively new and potentially sensitive and divisive subject
matter.
Equilibrium  This approach can be taken by the Court to mediate between case-based
decision-making and setting general standards. This approach is the exact opposite to the
strategy of incrementalism. It then starts off a new line of case law by defining a general
principle, only later refining it by application in concrete cases.
9. Which role does the Vienna Convention on the Law of Treaties play in relation to the
ECHR?
The 1969 Vienna Convention on the Law of Treaties was an important starting point for the
Court in its interpretation of the Convention.
- Article 31(1) of the Vienna Convention stipulates the main principle for
interpretation of international treaties: ‘A treaty shall be interpreted in good faith
in accordance with the ordinary meaning to be given to the terms of the treaty in
their context and in the light of its object and purpose.’
- Article 31(2) then explains the ‘context’ referred to in this first paragraph. This
context is constituted by the text, Preamble and annexes of a treaty, but also,
among others, by any agreement made between the parties in connection to the
conclusion of a treaty.
- The third paragraph of Article 31 furthermore explains that, next to this context,
account has to be taken of any subsequent agreements between the parties
regarding the interpretation or application of a treaty, any subsequent State
practice in the application ofthe treaty that shows an agreement between the
parties regarding its interpretation, and any relevant rules of inter-national law
applicable in the relation between the parties.
- Finally, Article 31(4) explains that the States Parties can give a special meaning to
a term contained in a Convention and that this, then, has to be respected
- In addition, Article 32 of the Vienna Convention mentions that other instruments,
- such as the preparatory works of a treaty and the circumstances of its conclusion,
can be used as a supplementary means of interpretation if the meaning of a treaty
provision is still ambiguous or obscure after application of the tools provided by
Article 31, or if the interpretation based on Article 31 would lead to a result that is
manifestly absurd or unreasonable.
a. In chapter 4.5, the author pays particular attention to one of the methods of the Vienna
Convention. What is this, how and when is it used, and why is this method of particular
importance?
In chapter 4.5. it is mentioned that an important method of interpretation for the Court is
common ground or consensus interpretation. This implies that the Court can accept a novel
interpretation of the Convention if there is a sufficiently clear European consensus on the
classification of a certain aspect of a right as part of a Convention right. The use of this
method is supported by the Vienna Convention on the Law of Treaties, which stipulates in
Article 31(3) that in interpreting a treaty, account has to be taken of any subsequent
agreements between the parties regarding the interpretation or application of a treaty, any
subsequent State practice in the application of the treaty that shows an agreement between
the parties regarding its interpretation, and any relevant rules of international law applicable
in the relation between the parties. In addition, the common ground method is closely related
to the principles of effective and evolutive interpretation.
10. The ECHR has two official versions, in English and French. What does this mean for the
interpretation of it?
Since the Convention and its Protocols are authenticated in two different languages (English and
French), Article 33 of the Vienna Convention is relevant. This provision states, among other
things, that the text of both authentic language versions is equally authoritative (Article 33(1))
and that the terms of the treaty are presumed to have the same meaning in each authentic version
(Article 33(3)), except when the parties have agreed that, in case of divergence, a particular text
shall prevail. If the parties have not agreed on a particular interpretation but the language
versions still diverge, Article 33(4) provides that Articles 31 and 32 can be used to solve the
divergence. If that does not help, the meaning must be adopted that best reconciles the texts,
having regard to the object and purpose of the treaty.
11. What is meant by the Convention being a “Living Instrument”? What effect does this
doctrine have?
The Convention is considered “a Living Instrument”, because of the continuous development in
response to societal and technological developments. The Court has expressly recognised this
dynamic nature of the Convention rights in an early formula in Tyrer v. the United Kingdom,
‘The Court must also recall that the Convention is a living instrument which .. . must be
interpreted in the light of present-day conditions.’
If the Court did not take account of recent developments in society and technology in explaining
the meaning of the Convention, it would be difficult for it to provide an effective protection of
the Convention rights. The Court also clearly stated this in Christine Goodwin v. the United
Kingdom.
The principles of evolutive and dynamic interpretation and effective protection of Convention
rights interact are part of the Court as a Living Instrument.
12. To what extent should changing conditions be incorporated into the interpretation of the
ECHR? x
13. What is a teleological interpretation?
Teleological interpretation takes place at a rather high level of abstraction: in many cases, the
Court does not specifically refer to the purposes of a particular Convention provision, but it
refers to the general principles and values underlying the Convention as a whole.
“’Teleological interpretation is used for three purposes:
(1) to promote the objective for which the rule of law was made;
(2) to prevent unacceptable consequences to which a literal interpretation might lead, and
(3) to fill gaps which may otherwise exist in the legal order.’” (The emphasis is mine).
14. What role does human dignity and personal autonomy play in the ECHR?
- Human dignity is a notion that often serves as an important basis for the Court to
explain the notion of ‘private life’ as contained in Article 8 ECHR. The Court
mentioned in the Pretty Case, where the applicant had argued that assisted suicide
could be held to constitute an aspect of her private life, using meta-teleological
reasoning:
“The very essence of the Convention is respect for human dignity and human
freedom…”
The Court also used these general principals as an important basis for its
interpretation of Article 8.
Importantly, the Court has never attempted to define the notion of human
dignity. Just as in Pretty, it standardly confines itself to mentioning the notion as
an essential value underlying the Convention, without offering further clarification
of its meaning.
- The Court also distinguishes personal autonomy as a core value of the

Convention. This notion can be helpful in interpreting the Convention. In the case
of the Jehovah’s Witnesses of Moscow, a question was raised of whether the
desire to refuse medical treatment, even if necessary, to save one’s life, is
protected by the Convention. Based on the principle of personal autonomy, the
Court answered this question in the positive:
“The very essence of the Convention is respect for human dignity and human
freedom and the notions of self-determination and personal autonomy are
important principles underlying the interpretation of its guarantees ... The freedom
to accept or refuse specific medical treatment, or to select an alternative
form of treatment, is vital to the principles of self-determination and personal
autonomy…”
Many cases in which the Court invokes personal autonomy concern the physical
integrity of individuals.
This makes clear that personal autonomy does not necessarily only refer to
individual autonomy and freedom of choice, but it may also relate to one’s
identification with a particular group. In addition, the Court has held that other
individual choices, such as the choice of one’s place of residence, may equally
come within the sphere of one’s personal autonomy, just like informational self-
determination (which may be affected by collecting, processing and dissemination
of personal data).
15. How and why is democracy particularly protected by the ECHR?
Democracy is a third core notion informing the Court’s Convention interpretation. In its
judgment in United Communist Party of Turkey, the Court discussed the importance and
meaning of this notion for the Convention system as a whole:
“Democracy is without doubt a fundamental feature of the European public order ... That is
apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection
between the Convention and democracy by stating that the maintenance and further realisation of
human rights and fundamental freedoms are best ensured on the one hand by an effective
political democracy and on the other by a common understanding and observance of human
rights ...”
The notion of Democracy offers the Court guidance in its concrete interpretations of the
Convention, especially of those rights that have a clear relation to democracy, such as the
freedom of expression, assembly and association, and the right to vote. To protect the essential
values of democracy, these rights are usually given a wide interpretation and a strong protection.
At the same time, the Court may also use the notion of democracy to define
certain limits to the scope of fundamental rights or the freedom to enjoy them.
Thus, if the Convention rights are used to undermine democratic values, the limits of Convention
protection are reached, and individuals cannot successfully invoke these rights.
16. What is an autonomous interpretation, and how does it apply to the ECHR?
Autonomous interpretation of the Convention means that the Convention should be interpreted in
light of other cases and arbitral decisions that have interpreted. In other words, the Convention
should not be interpreted by using domestic law; instead, interpretation should be self-
referential.
Although autonomous interpretation is the rule under the Convention, the Court has accepted for
a few situations that a non-autonomous reading should be given of the Convention.
First, the Court has pointed out that autonomous interpretation is a kind of one-way street. It only
applies if there is a reason to fear that States will use their own national definitions in order to
escape accountability under the Convention system, but not if the application of their own
definitions would provide more protection of the Convention (as Article 53 ECHR allows).
Second, the Court will not give an autonomous interpretation of notions for
which the Convention itself expressly refers to the national laws of the States parties.
17. The author outlines three methods of interpretation in chapter 4.2-4.4.
a. What are these, and how do they differ?
o 4.2. Textual interpretation
 Art. 31 of the Vienna Convention on the Law of Treaties
stipulates that treaty provisions should be interpreted in light of the
‘ordinary meaning’ of the terms of the treaty. Although it har
proved difficult to determine a term’s ordinary meaning. For that
reason, whenever the Court relies on textual interpretation, it prefers
to adapt the meaning of a notion to make it fit in the particular legal
and Convention context in which it is used.
o 4.3. Interpretation in the light of the Travaux Préparatoires
(forarbejderne)
 According to Article 32 of the Vienna Convention on the Law of
Treaties, the Travaux Préparatoires or preparatory works of a treaty
may be used as a supplementary means in treaty interpretation. The
Court’s use of the travaux préparatoires is in line with this: although
it may refer to the travaux in some cases, their content is not
decisive, and the Court will always rely on other methods to support
its eventual interpretation.
o 4.4. Internally Harmonising Interpretation
 An important starting point for the Court’s interpretation of the
Convention is that the meaning of the various provisions must be
internally consistent or harmonious:
“Since the Convention is first and foremost a system for the
protection of human rights, the Court must interpret and apply it in a
manner which renders its rights practical and effective, not
theoretical and illusory. The Convention must also be read as a
whole and interpreted in such a way as to promote internal
consistency and harmony between its various provisions.”
b. Do the methods overlap, or are they only used separately?
Purely textual interpretation occurs mainly as a check on the use of other principles and
methods of interpretation. Meanwhile the Travaux Préparatoires or preparatory works of
a treaty may be used as a supplementary means in treaty interpretation.
COURTalks: The admissibility of an application:

http://www.echr.coe.int/Documents/COURTalks_Inad_Talk_ENG.pdf
1) What is understood by procedural and material admissibility requirements? x
2) Is there a hierarchy among the admissibility requirements and if so, describe the ranking? x
3) Describe: x
a) Exhaustion of domestic remedies – describe the different aspects of domestic remedies
Exhaustion of domestic remedies means that all remedies in the State, which provide redress for
the situation you are complaining about, must be used. This usually consists of a claim brought
before a relevant civil, criminal or administrative court, followed by an appeal where applicable,
and even a further appeal to a higher court such as a Supreme Court or Constitutional court, if
one exists.
In addition, you must comply with the applicable rules and procedures of national law. If your
complaint is not lodged within the time-limit prescribed by national law, the complaint before
the Strasbourg Court may be declared inadmissible.
When complaining before the national courts, you must raise at least the substance of the
Convention violation that is being alleged before the court.
b) The six-months rule
A completed application form must be submitted before the mandatory six-month time-limit.
Only submission of the completed application form interrupts the running of this six-month
time-limit.
The six months start to run from the date of the final domestic decision which shows you have
exhausted all domestic remedies.
Although once protocol no. 15 enters into force, the six-month time-limit will be reduced to four
months.
c) No significant disadvantage
The application may be declared inadmissible if you have suffered no significant disadvantage.
There are two safeguard clauses within this criterion: the first applies where respect for human
rights requires an examination on the merits. The second safeguard clause requires that your case
has been duly considered by a domestic tribunal.
It should be notes that once protocol No. 15 enters into force, this second safeguard clause will
be removed. Only the Court may take this decision.
d) Anonymity
For an application to be declared admissible by the Court it requires that the application is not
anonymous. A name should be provided so the applicant can be identifiable.
Anonymity is only allowed if reasons for this are stated and it is explained how disclosure of the
applicant’s identity could affect them.
If you are granted anonymity, you should be referred to by your initials or simply by a letter. If
not, your name will appear in all documents which the Court publishes on-line on its HUDOC
database.
e) The requirement of not being manifestly ill-founded
The application may be considered manifestly ill-founded if there has not been provided
sufficient evidence to support the facts and the legal arguments which are risen. The application
may be declared inadmissible if it so confused that it is objectively impossible for the Court to
make sense of the complaints made. The same applies to far-fetched complaint and to those that
have clearly been invented or that are manifestly contrary to common sense.
The Strasbourg Court cannot question the domestic courts’ establishment of the facts in any
case, nor their assessment or application of domestic law, nor the guilt or innocence in a criminal
case.
f) Substantially the same
An application may be declared inadmissible if an application relating the same facts and the
same complaints is previously brought in the Strasbourg Court. The same applies to an
application which is essentially the same as a case that the applicant has brought before another
international body…
g) Competence ratione personae
The violation which the complaint is about must have been committed by the Respondent State
in question or in some way attributable to it. Therefore the complaint may be declared
inadmissible because of the respondent concerned, if the application is brought against an
individual, a state that has not ratified the Convention or its Protocols, or if brought directly
against an international organisation, such as one of the European Union institutions, which has
not yet acceded to the Convention… However, if your complaint is against an EU Member State
in relation to its implementation of EU law, your application may be declared admissible.
You may bring an application if you are an individual, or if you are a non-governmental
organisation such as an association or private company. You may bring an application regardless
of your nationality, your immigration status or your legal capacity
h) Competence ratione materiae
The application may be dismissed as incompatible on the grounds of the subject matter if, the
application does not invoke a right which is protected under the Convention and its Protocols,
such as the right to life or the right to an effective remedy.
The complaint must fall within the scope of application of the right which the applicant invokes,
such as the right to a fair trial, the right to private and family life, or the right to protection of
property.
i) Competence ratione temporis
The acts or facts complained of must have occurred after the date of entry into force of the
Convention in the respondent State in question. The application may be declared admissible if
the State caused the continuous situation which began prior to ratification and persisted after that
date.
j) Competence ratione loci
The violation that is complained about must have occurred within the territorial jurisdiction of
the Member State concerned or in a territory effectively controlled by it.
How the Court Works:

https://www.echr.coe.int/Pages/home.aspx?p=court/howitworks&c=#newComponent_1346158325959_
pointer (all documents)
Supplementary Material:
Admissibility Guide: https://www.echr.coe.int/Documents/Admissibility_guide_ENG.pdf
ECtHR video on admissibility:
https://www.youtube.com/watch?v=mcbDDhs5ZVA&list=PLT-
6qb4oU5fhzKQdkQk6O7UPNhSuAWsB9&index=1
- ECtHR is an international court which over sees compliance with the European
Convention on Human Rights.
- In order to be admissible applications must fulfill certain conditions.
- They can only be brought against states which have ratified the convention. They
cannot be brought against companies, individuals or states which are not members
of the Council of Europe, such as the USA.
- The complaint must concern one or more rights, which are actually protected by
the ECHR. The applicant must be the victim of the violation.
- The application must concern events occurred after the ratification of the
convention by the state concerned.
- Exhausting domestic remedies  The case must be taken through national and
highest courts first.
- Time limit  6 months
- Significant disadvantage
- ECtHR cannot dismiss the decision made by a national court.
Group work:
What is the difference between the abolition of the death penalty in Protocol 6 Art. 1 and Protocol 13
in the ECHR?
- In Protocol 6 Art. 1
When did Protocol 16 enter into force?

- On 1st of august 2018, after 10 member states signed and ratified the Protocol.
Has Denmark ratified Protocol 15 and/or 16?

- Denmark has ratified Protocol 15, but not 16.
Does Denmark have any reservations filed to either Protocol 15 or 16?

- No reservations filed to Protocol 16, because it has not been ratified by Denmark.
- Reservations filed to Protocol 15: https://www.coe.int/en/web/conventions/full-
list?module=declarations-by-treaty&numSte=213&codeNature=0
If yes, then what is it about?

- Denmarks reservations filed to Protocol 15 are, that the Protocol must not apply
the Faroe Islands and Greenland.
How many countries have ratified Protocol 16? (You do not need to count, the information is provided
for you at the bottom of the relevant page)
- 17
What is the nature of the declarations filed by various countries to Protocol 16?
-
Why do you think the required numbers of ratifications for Protocol 15 and 16 are so different?
- Protocol 15 had to be ratified by all member states to enter into force. Protocol
No. 15 amending the Convention introduces a reference to the principle of
subsidiarity and the doctrine of the margin of appreciation. It also reduces from six
to four months the time-limit within which an application may be made to the
Court following the date of a final domestic decision. The new time-limit will
enter into force on 1 February 2022.
If the EU sets a more extensive level of protection than the one defined by the ECtHR, then what
happens to those countries who are members of the CoE but not members of the EU? Are they then
required by the ECtHR to follow along with the EU level of protection?
- The members are only bound to follow along with what they have agreed to.
Which court is competent to judge, if Denmark has implemented a rule from the EU, and that rule is
in violation of the ECHR?
- ECtHR is not competent to judge the EU or the decisions of the EU.
Define and explain to each other the three principles governing interpretation of the ECHR in chapter
3.3-3.5 of the textbook
Evolutive interpretation  The convention is a “living instrument”.
Meta-teleological interpretation  …
Autonomous interpretation  …
Find the case of Schalk and Kopf v. Austria, app. no. 30141/04, 24/06/2010, skim paragraphs 54-64, and
discuss:
Which method(s) of interpretation did the applicants use?
- The applicants use Textual interpretation, they are talking about the right of men
and women to get married.
- Living instrument.
Which method(s) of interpretation did the Court use?

- Focusing on art. 12 not imposing an obligation on States to grant same-sex
couples’ access to marriage, the Court was unable to share the applicants’ view
that such an obligation could be derived from Article 14 taken in conjunction with
Article 8.
- The court looks at the historical context, and therefore they use the travaux p.,
while also looking whether there is good faith.
- They are looking for consensus for the law.
5 Extraterritorial Application of the ECHR
1) What is meant by a threshold question?
- The first question to get passed to examine whether the state has the obligations to legally.
2) Why is jurisdiction a threshold question?
- Jurisdiction is a threshold question due to the fact, that it has to be examined whether the jurisdiction is
complied.
3) How does extraterritoriality fit into the question of jurisdiction? x
What does “secure” actually mean? x
What does “within their jurisdiction” mean?

A state gets powers and obligations, and have to stay within this jurisdiction, and follow the rules and
policies.
Haeck, Y., Burbano-Herrera, C. & Ghulam Farag, H., ‘Extraterritorial obligations in the European human
rights system’ in Gibney, M., Erdem Türkelli, G., Krajewski, M. and Vandenhole, W. (eds) The Routledge
Handbook on Extraterritorial Human Rights Obligations (Routledge, 2022, Abingdon and New York), 125-
139. Open access. DOI: 10.4324/9781003090014
1) What provision of the ECHR does extraterritorial application of human rights obligations rely
on?
The general international obligation of the ECHR states is enshrined in Article 1 ECHR.
2) What are the two traditional models of extraterritorial jurisdiction and how has the Court’s
case law developed in determining the relevant criteria for jurisdiction under each?
The personal model  State agent authority and control.
The spatial model  Effective control over an area
3) What are the main limitations, challenges and criticisms of extraterritorial jurisdiction? x
4) What is a third potential model for extraterritorial jurisdiction; and how realistic and effective
can it be in providing increased protection under the ECHR? x
Papastavridis, E (2020). The European Convention of Human Rights and Migration at Sea: Reading the
“Jurisdictional Threshold” of the Convention Under the Law of the Sea Paradigm. German Law Journal 21,
417–435. (Open Access)
https://doi.org/10.1017/glj.2020.23
Hirsi Jamaa and Others v Italy 27765/09 (2012) (paras 65-66, 70-74, 80-81, 93-95, 113, 131, 134, 156-
157, 185-186, 202-203) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-109231%22]}
SS et Autres c. Italie 21660/18 Communication 26 June 2019 (also referred to in Papastravridis’ article)
1) How have the principles on jurisdiction under Article 1 been applied to the high seas in the
case of interception by state authorities of a vessel carrying refugees and migrants? x
2) In the Hirsi Jamaa case, what were Italy’s arguments against responsibility and what did the
ECtHR GC conclude about Italy’s return of refugees and migrants from the high seas to
Libya?
3) What is the concept of contactless control? x

4) In contactless operations, what kind of arguments do you think could be used in relation to a
form of ‘functional jurisdiction’ based on state sovereignty and exercise of state power? x
Georgia v Russia (II) 38263/08 (2021)
1) Summarize the facts of the case and identify contested rights (paras 8, 32-33, 108-112, 153-
160).
The applicant Government alleged that the Russian Federation had permitted or caused to exist an
administrative practice, resulting in a violation of Articles 2, 3, 5, 8 and 13 of the Convention,
Articles 1 and 2 of Protocol No. 1, and Article 2 of Protocol No. 4. They alleged, further, that despite
the indication of interim measures the Russian Federation continued to violate its obligations under
the Convention and, in particular, was in continuous breach of Articles 2 and 3 of the Convention.
2) How does the Respondent government argue against jurisdiction under article 1 (para 79, 107,
150-152)? x
3) Summarize and understand the previous case law developments about extraterritorial
jurisdiction, paying particular attention to Al Skeini and Others v the UK 55721/07 (7 July
2011) (paras 81, 93, 113-124). x
4) Explain the court’s findings (paras 125-144, 162-175). x
Sandvig, J, Dawson, P and Tjelmeland, M, ‘Can the ECHR Encompass the Transnational and Intertemporal
Dimensions of Climate Harm’ (EJIL Talk! 23 June 2021)
1) How does shared responsibility for the transboundary effects of climate change under the
ECHR fit with or challenge state jurisdiction under Article 1 ECHR? x
What does the court say about the application of the ECHR?
Bankovic case: para. 71  the respondent State uses effective control to exercise all or some of the public
power, that normally should be exercised by the government. Extra-territorial jurisdiction is exceptional,
therefore the one who makes the case has to be able to prove, that it is an event that requires extra-territorial
jurisdiction.
Ilascu case: para. 333  Spatial model. The state is protecting the individuals in the area, therefore
focusing on the positive obligations.
Loizidou case: para. 62  Bearing in mind the object and purpose of the Convention, the responsibility of
a Contracting Party may also arise when as a consequence of military action – whether lawful or unlawful –
it exercises effective control of an area outside its national territory. The obligation to secure, in such an area,
the rights and freedoms set out in the Convention derives from the facts of such control whether it be
exercised directly, through its armed forces, or through a subordinate local administration.
Hirsi Jamaa case: paras. 80-81 (see also 70-75, 185-186, 156-157)  The Court refers to case law:
Medvedyev and Others. The Court observes that in the instant case the events took place entirely on-board
ships of the Italian armed forces, the crews of which were composed exclusively of Italian military
personnel.
Al Skeini case: para. 136  The Court’s case-law demonstrates that, in certain circumstances, the use of
force by a State´s agents operating outside its territory may bring the individual thereby brought under the
control of the State’s authorities into the State’s Article 1 jurisdiction.
Georgia v Russia: para. 126  …the question of effectiveness and accessibility of domestic remedies may
be regarded as additional evidence of whether or not such a practice exists (see, in particular, Cyprus v.
Turkey, cited above, § 87).
Karakas, I. & Bakirci, H. (2018). Chapter 6: Extraterritorial Application of the European Convention on
Human Rights: Evolution of the Court’s Jurisprudence on the Notions of Extraterritorial Jurisdiction and
State Responsibility. In: Motoc I., van Aaken A. (Eds.), The European convention on human rights and
general international law (First ed.). Oxford University Press, 112-134.
https://doi.org/10.1093/oso/9780198830009.001.0001
David Harris et al., ‘IV. Competence Ratione Loci’ in Harris et al., Law of the European Convention on
Human Rights, 4th ed. OUP 2018, 102-106 (see in particular 102-104 in relation to Article 1 ECHR
jurisdiction)
Maarten den Heijer, ‘Jurisdiction’, Issues of Shared Responsibility before the European Court of Human
Rights ACIL Reasearch Paper No 2012-04 (SHARES Series), 4-11. http://www.sharesproject.nl/wp-
content/uploads/2012/01/Den-Heijer-Maarten-Issues-of-Shared-Responsibility-before-the-European-Court-
of-Human-Rights-ACIL-2012-041.pdf
Verena Kahl, ‘A human right to climate protection – Necessary protection or human rights proliferation?’
(2022) NQHR 40(2): 158-179. Doi: 10.1177/09240519221092595
Mayer, B, ‘Climate Change Mitigation as an Obligation Under Human Rights Treaties?’ 2021 American
Journal of International Law 115:3, 409-451 (open access)
Gociu, A and Roy, S ‘Extraterritoriality of Oil Constitutionalism in People v Arctic Oil’ (EJIL Talk! 16
February 2021) (Norweigen case)
Paul Arnell and Bukola Faturoti, ‘The prosecution of cybercrime – why transnational and extraterritorial
jurisdiction should be resisted’ (2022) International Review of Law, Computers & Technology, 1, 1-6.
Marco Longobardo and Stuart Wallace (2022) ‘The 2021 ECtHR Decision in Georgia v Russia (II) and the
Application of Human Rights Law to Extraterritorial Hostilities’ (2022) 55(2) Israel Law Review, 145 doi:
10.1017/S0021223721000261
Floris Tan & Marten Zwanenburg, ‘One Step Forward, Two Steps Back? Georgia v Russia II’ (2021) 22
Melb J Int’l L 136
Marko Milanoivić and Tatjana Papić, ‘The Applicability of the ECHR in Contested Territories’ (2018) 67
ICLQ 779. Dor:10.1017/S0020589318000234
Violeta Moreno-Lax, ‘The Architecture of Functional Jurisdiction: Unpacking Contactless Control - On

Public Powers, SS and Others v Italy and the ‘Operational Model’’, 21/3 German Law Journal (2020), 385-
416 (Open Access)
Nanda Oudejans, Conny Riljken and Annick Pijenburg, ‘Protecting the EU External Borders and the
Prohibition of Refoulement’ (2018) 19 Melb J Int’l L 614
6 Derogations
David Harris et al., ‘Chapter 18: Articles 15: Derogation in Time of War or Other Public Emergency
Threatening the Life of the Nation’, in: Harris et al., Law of the European Convention on Human
Rights, 4th ed, Oxford: OUP (2018), 805-834. ITsLearning (Guide on Article 15:
https://www.echr.coe.int/documents/Guide_Art_15_ENG.pdf )
Sanja Jovičić, ‘COVID-19 restrictions on human rights in the light of the case-law of the European
Court of Human Rights’, (2021) ERA Forum 21:545-560
1) What are the three elements of Article 15(1) ECHR?
The three elements of Article 15(1) ECHR set out three conditions for a valid derogation:
- It must be a time of war or other public emergency threatening the life of the
nation
- The measures taken in response to that situation of war or other public emergency
must not go beyond the extent strictly required by exigencies of the situation…
- The measures must not be inconsistent with the State’s other obligations under
international law.
2) What is the basic definition of a ‘public emergency threatening the life of a nation’?
In the general context of Article 15 of the ECHR, the natural and customary meaning of the
words “other public emergency threatening the life of the nation’ is sufficiently clear, … they
refer to an exceptional situation of crisis or emergency which affects the whole population and
constitutes a threat to the organised life of the community of which the State is composed.
3) What has the court said about determination of such a public emergency and the margin
of appreciation?
The court described the qualifying features of such an emergency as follows:
1. It must be actual or imminent
2. Its effects must involve the whole nation
3. The continuance of the organized life of the community must be threatened
Generally, the Convention organs have deferred to the national authorities’ assessment as to
whether such an exceptional situation (public emergency) exists. The Court stated in Ireland v.
the United Kingdom 1978, §207: “it falls in the first place to each Contracting State, with its
responsibility for ‘the life of [its] nation’, to determine whether that life is threatened by a
‘public emergency’”.
By reason of their direct and continuous contact with the pressing needs of the moment, the
national authorities are in principle better placed than the international judge to decide both on
the presence of such an emergency and on the nature and scope of the derogations necessary to
avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national
authorities. Nevertheless, the Court had emphasised that States do not enjoy an unlimited
discretion in this respect. The domestic margin of appreciation is accompanied by European
supervision (Brannigan and McBride v. the United Kingdom, 1993, § 43; Mehmet Hasan
Altan v. Turkey, 2018, § 91; Şahin Alpay v. Turkey, 2018, § 75).
4) What is the ECtHR’s interpretation of when measures are taken ‘…to the extent strictly
required by the exigencies of the situation’?
The States do not enjoy an unlimited power in this respect: the Court is empowered to rule on
whether the States have gone beyond the “extent strictly required by the exigencies of the
crisis” (Ireland v. the United Kingdom 1978, §207). To assess whether the measures taken
were “strictly required by the exigencies of the situation and consistent with the other
obligations under international law”, the Court examines the complaints on the merits
(Mehmet Hasan Altan v. Turkey, 2018, § 94; Şahin Alpay v. Turkey, 2018, § 78; Kavala v.
Turkey, 2019, § 88).
5) Are non-derogable rights also ‘absolute rights’? Give examples from Article 15(2)
Article 15 § 2 protects certain rights from derogation. According to the text of Article 15 § 2,
these are: Article 2 (the right to life), except in respect of deaths resulting from lawful acts of
war, which is a Non-absolute or derogable right with express, specific limitation clauses.;
Article 3 (the prohibition of torture and other forms of ill-treatment); Article 4 § 1 (the
prohibition of slavery or servitude); and Article 7 (no punishment without law) which are
‘Absolutely absolute’ rights or non-derogable rights.
6) Which procedures are expressly or impliedly required of Article 15(3)? x
For an update on derogations, see Council of Europe Treaty searches and look at ‘Declarations and
Reservations’ in relation to the ECHR, which has TN 005:
https://www.coe.int/en/web/conventions/search-on-treaties/-/conventions/declarations/search/cets
1) Look at the recent derogations of Georgia, Moldova or Ukraine and consider the
information provided in the context of Article 15 ECHR. x
Alan Greene, ‘Closing Places of Worship and COVID-19: Towards a Culture of Justification?’ (2021) 25
Edinburgh L Rev 393 (review of a Court of Session decision)
Marc Rotenburg and Eleni Kyriakides, ‘Preserving Article 8 in Times of Crisis: Constraining Derogations
from the ECHR’ in F. Bignami (ed), EU Law in Populist Times: Crises and Prospects (CUP, 2020,
Cambridge), 342
Stuart Wallace, ‘Derogations from the ECHR: The Case for Reform’ (2020) 20 HRLR 769-796
Patricia Zghibarta, ‘The Whos, the Whats, and the Whys of the Derogations from the ECHR amid COVID-
19’ (EJIL:Talk!, 11 April 2020) https://www.ejiltalk.org/the-whos-the-whats-and-the-whys-of-the-
derogations-from-the-echr-amid-covid-19/
Kushtrim Istrefi, ‘supervision of Derogations in the Wake of COVID-19: a litmus test for the Secretary
General of the Council of Europe‘ (EJIL:Talk!, 6 April 2020) https://www.ejiltalk.org/supervision-of-
derogations-in-the-wake-of-covid-19-a-litmus-test-for-the-secretary-general-of-the-council-of-europe/
Triestino Mariniello, ‘Prolonged emergency and derogation of human rights: Why the European Court
should raise its immunity system’, German Law journal (2019) 20, 46-71
Julian Müller, European human rights protection in times of terrorism – the state of emergency and the
emergency clause of the European Convention on Human Rights (ECHR) (2018) Z Politikwiss 28, 581.
Oktawian Nawrot, Justyna Nawrot & Valeri Vachev, ‘The right to healthcare during the covid-19 pandemic
under the European Convention on Human Rights’ (2022) The International Journal of Human Rights
7-8 Principles of interpretation
Gerards, Janneke: General Principles of the European Convention on Human Rights, Cambridge
University Press 2019,
Chapter 5: positive and negative obligations
 What is the difference and the relations between positive and negative obligations?
There are significant differences between negative and positive obligations. Whereas negative
obligations logically and directly follow from the text of the Convention, positive obligations are
only implied therein. Positive obligations refer to State action, whereas negative obligations require
States to abstain from interfering. Also, the Court relies on different methods to define positive
obligations, such as its fair balance test, the reasonable knowledge and means test, or the
-based test. Furthermore, and in particular, there is an important difference between positive and
negative obligations as regards absolute rights.
 Explain the ‘fair balance’ test?
The fair balance test is used in many of the Courts positive obligations cases: “in determining
whether or not a positive obligation exists, regard must be had to the fair balance that has to be
struck between the general interest of the community and the interests of the individual, the search
for which balance is inherent in the whole of the Convention.”
The Court uses the fair balance test to identify the various individual and general interests at play in
a certain case and, subsequently, assesses which positive action would be needed to strike a fair
balance between them. To do so, the court places the individual interest that would be served by a
certain action by the government in one scale of the balance.
A good example of the fair balance test can be seen in the Hatton case, related to noise disturbance
for people living in the vicinity of Heathrow Airport.
 Explain the ‘reasonable knowledge and means’ test?
The reasonable knowledge and means test have been developed in relation to cases on the use of
(lethal) violence or ill-treatment by third parties, but it is also applied in other cases concerning
Articles 2 or 3 of the Convention. In all such cases, the question may arise as to what extent the State
should act to protect the lives and physical integrity of those within its jurisdiction.
 What is the effectiveness-based definition of positive obligations?
In many cases, the Court mainly relies on the general principles of interpretation, such as
effectiveness and evolutive interpretation, to underpin the acceptance of a new positive obligation.
 What role does precedence play in defining positive obligations?
In many cases the Court does not apply any of the three methods discussed above. There is no need
for it to do so if it has already established the existence of a certain positive obligation in earlier case
law. Once such general principles have been established, which has happened for the majority of
cases, the Court does not need to apply any fair balance or reasonable knowledge and means test, nor
does it have to refer to the principle of effectiveness to justify a new positive obligation. The Court
can simply reiterate the accepted positive obligations as general principles and apply the resulting
standards to the facts of the case, if needed with some further refinement or redefinition. The use of
the three other tests and bases for defining positive obligations is thus reserved for setting standards
regarding yet unexplored issues.
 What are the different types of positive obligations?
o Substantive positive obligations  Difficult to define clearly.
Includes: protecting protesters against a hostile audience, offer facilities to detainees to
conceive a child, protect playing children from harm by unexploded mines, plan and control
law enforcement operations, protect pluralism of the media, protect free access to
information, provide alternatives to military duty to consciencious objectors
o Procedural positive obligations  Especially regarding art. 2 and 3
Detachable obligation from the substantive part
Includes:
 Ex post obligations: Launching an effective investigation
 Ex officio, prompt, independent, including the complainant
 Effective remedy
 Criminal prosecution
 Focus on the quality of investigations
 Ex ante obligations: especially in connection with dangerous activities
 Licensing, setting up, operaton, security, supervision of the activity
 Focus on the public’s right to information
 Including appropriate procedures for evaluation and improvement
o Vertical positive obligations  The vertical positive obligations are directed from the state
to individuals. Closely related to negative obligations
 Provide humane detention conditions
 Recognize the legal status of person who have undergone gender transformation
 Breaches of this will amount to a breach of a negative obligation
o Horizontal positive obligations  The horizontal positive obligations are directed from the
state to individuals, who are directing each other.
 Obligation to protect private individuals from each other
o Van Kempen’s four categories of obligations
Chapter 6: Vertical and horizontal effects

 What is the difference between vertical and horizontal effects?
The vertical direct effect is of consequence in relations between individuals and the country. This
means that individuals can invoke a provision of EU law in relation to the state.
The horizontal direct effect is of consequence in relations between individuals. This means that an
individual can invoke a provision of EU law in relation to another individual.
According to the type of act concerned, the Court has accepted either a full direct effect (i.e. a
horizontal direct effect and a vertical direct effect) or a partial direct effect (confined to a vertical
direct effect).
 What is an indirect horizontal effect?

 In many cases, the interference with a Convention right is not caused by a public authority or a State
agent, but it is affected by the acts of private entities or individuals. The Convention does not apply
to such ‘horizontal’ relations. Nevertheless, the Court has developed two strategies that have created
a strong degree of indirect protection of Convention rights in this type of relationships:
o The first strategy is to impose positive obligations on the State for an effective protection of
the Convention in relations between individuals or private entities.
 Barbulescu: employer – employee relation – employer read private messages
 No breach by a state authority
 State has a (positive) obligation to protect the employee
o Criteria: notification of monitoring, extent of monitoring,
consequences of monitoring, safeguards against arbitrary abuse
o Conclusion: Russia had not afforded sufficient protection – breach
of art. 8
 Means of horizontal protection
 Criminal law legislation
 Effective law enforcement
 Operational measures
 Effective legal remedies
o The second strategy is to hold national courts (as organs of the State) accountable for
applying the ECHR provisions and the standards developed in the Court’s case law in
horizontal cases (to cases between individuals).
 What can a state be held responsible for?

The State can be held responsible for not have complies with its positive obligations and the
Convention to provide effective criminal law provisions.
The Court has also made it clear that the State should have in place regulations compelling both
public and private hospitals to adopt appropriate measures for the protection of their patients’ lives
and physical integrity.
The State must ensure that the legislative framework is effectuated in practice.
The Strasbourg Court has imposed many obligations on the States to draft legislation, take
preventive or enforcement measures, and provide remedies, which have the result that private parties
are increasingly obliged to respect the Convention rights. Although, the Court sometimes accepts
limits to these obligations.
 What does the obligation to provide an effective remedy entail?
The Right to an effective remedy is the right of a person whose human rights have been violated to
legal remedy. Such a remedy must be accessible, binding, capable of bringing perpetrators to justice,
provide appropriate reparations, and prevent further violations of the person's rights.
To be effective, moreover, remedies should be able to lead to sufficient redress for the victim of an
interference.
 What is the obligation of national courts?
As organs of the State, the domestic courts have a direct and primary responsibility under Article 1
ECHR to secure the Convention rights in their interpretation and application of national law. It
follows from the Court’s case law that the national courts also incur this obligation in the sphere of
private law, such as in the interpretation of contacts.
Also, the positive obligations to provide an effective judicial remedy, also have their bearing on the
national courts. In particular, the Court’s case law implies that they have to carefully establish the
interests of the private parties involved in a conflict and provide a fair balance.
In most cases, the Court mainly examines whether the national courts have given too much or too
little weight to specific interests and whether they have sufficiently take the Court’s own standards
into account.
Chapter 7: The margin of appreciation doctrine

 What is the margin of appreciation?
The margin of appreciation refers to the space for manoeuvre that the Strasbourg organs are willing
to grant national authorities, in fulfilling their obligations under the ECHR.
 How and why did it develop?
The Court started its development of the margin of appreciation doctrine in the Belgian Linguistics
case. (page 163)
This was although elaborated in the Handyside case, which is generally regarded as the judgement in
which the Court introduced the margin of appreciation doctrine. “Nevertheless, Article 10 para. 2
does not give the Contracting States an unlimited power of appreciation… The domestic margin of
appreciation thus goes hand in hand with a European supervision. Such supervision concerns both
the aim of the measure challenged and its ‘necessity’; it covers not only the basic legislation but also
the decision applying it, even one given by an independent court ... It follows from this that it is in
no way the Court’s task to take the place of the competent national courts but rather to review under
Article 10 the decisions they delivered in the exercise of their power of appreciation…” These
considerations show that it is not only the specifically supranational, subsidiary role of the Court that
explains the choice for a ‘margin of appreciation doctrine’ (the institutional reason mentioned in
Section 7.1), but also the so-called ‘better placed argument’ (the epistemic reason mentioned in
Section 7.1). The Court expressly mentioned that the States are in principle in a better position than
it is itself to assess the necessity of certain restrictive measures to achieve a certain aim. Notably,
however, this epistemic reason for allowing the State a certain margin of appreciation may not be as
strong in each individual case…
 What is the function of the margin of appreciation?
The main function of the margin of appreciation is to allow the States some leeway in deciding on
the regulation of the enjoyment of fundamental rights. The logical consequence of this is that the
margin of appreciation does not play a role in relation to absolutely absolute, non-derogable
provisions of the Convention.
 How is the margin of appreciation determined?
The Court generally distinguishes between a ‘narrow margin’, a ‘certain margin’ and a ‘wide
margin’. These formulas cannot be regarded as indicating specific tests or levels that result in a
certain apportionment of the burden of proof or in an exact set of standards of review.
- If a wide margin is allowed to the national authorities, the Court will examine the
choices made by the national authorities rather superficially to see whether the
result is not (clearly) unreasonable or disproportionate. Also, if the margin of
appreciation is wide, the burden of proof to show that a restriction is unjustified is
often placed with the applicant. Lastly, in cases where the margin of appreciation
is wide, the Court may apply to a rather procedural test: if it finds that the national
authorities have not assessed the case in an arbitrary or manifestly unreasonable
manner, it will not find a violation.
- If the Court leaves the State a narrow margin of appreciation, it will closely
consider the facts of the case, carefully identify and weigh the interests at stake
and decide for itself where the appropriate balance between conflicting interest
should have been struck. It is up to the national authorities in such cases to show
that the limitation of rights was based on a careful and objective assessment of
facts and interests and, more generally, that there were sufficiently weighty and
important interests supporting it.
- If the Court leaves the respondent State ‘a certain’ margin of appreciation or just
‘a’ margin of appreciation, it indicates an intermediate form of scrutiny on the
scale ranging from very strict to very restrained review, and from a narrow to a
wide margin of appreciation. Usually, such an intermediate scope for the margin
of appreciation means that the Court will apply a relatively neutral approach,
allowing the State some leeway for making its own decisions, yet not limiting
itself to a pure review of arbitrariness or manifest unreasonableness.
The main value of the margin of appreciation doctrine is in its flexibility and variability. When
Determining the Scope of the Margin of Appreciation sometimes the margin will be wide (and the
Court’s review will be lenient), sometimes it will be narrow (and the Court’s review will be strict)
and sometimes there will be an intermediate or unclear margin (and intensity of the Court’s review
will be more or less neutral). The amount of discretion left to the States thus has a significant bearing
on the Court’s review, and for that reason, it is important to understand how the Court decides to
grant a narrow, intermediate or wide margin of appreciation for the States. The three main factors
which have the most impact on the scope of the margin of appreciation can be distinguished: the
‘common ground’ factor (Section 7.4.2), the ‘better placed’ factor (Section 7.4.3) and the nature and
importance of the Convention right at stake (Section 7.4.4).
- The common ground factor  The common ground factor implies that the Court
may accept a new definition of a Convention right if this interpretation is
supported by (at least) an emerging consensus in the European States. The
common ground factor may play a role in relation to the definition of the general
interests that may be invoked to justify a restriction of a Convention right, or the
test of legitimate aim…
- The Better Placed Argument  The Court may leave a wide margin of
appreciation to the States because they are in a better position to assess the
necessity, suitability or overall reasonableness of a limitation of fundamental
rights. Some of the judges of the Court have even contended that the ‘better placed
argument’ should be the main or even only factor to be considered in deciding
about the margin of appreciation…
- The nature and importance of the Convention right at stake  The Court has often
stated that the nature of the Convention right and its importance for the individual
are of great importance to the scope of the margin of appreciation. In principle, the
margin of appreciation will be narrow if the essence or ‘core’ of one of the
Convention rights is affected, whereas it will be wider if a less important aspect of
the Convention is at stake…
Chapter 8: Lawfulness
 What is the schematic set of requirements derived from the Convention and the Court’s case
law?
1. The interference with the Convention right must be ‘prescribed by law’ or ‘in accordance with the
law’ (requirement of lawfulness):
a) requirement of a ‘basis in domestic law’
b) requirement of accessibility of the legal basis
c) requirement of forseeability of the interference, restriction or limitation
d) requirement of non-arbitrariness and procedural due care.
2. The interference with the Convention right must pursue a legitimate aim (requirement of a
legitimate aim).
3. The interference must be necessary (‘in a democratic society’) to achieve the legitimate aim
pursued (requirement of necessity; also, often framed as the requirement of ‘proportionality’ or the
requirement of a ‘fair balance’).
‘Prescribed by law’  The Convention notion of ‘law’ (or in French, ‘loi’) has been given an
autonomous and substantive interpretation by the Court. The interpretation is substantive or
qualitative in the sense that the Court does not set any standards for the procedure that needs to be
followed in order to be able to speak of a valid legal basis, nor does it require a basis in specific
types of ‘law’, such as an Act of Parliament.
‘A basis in domestic law’ 
 What are the core values of lawfulness? x
Chapter 9: Legitimate Aim

 What is the exhaustive list of legitimate aims?
The express limitation clauses do not only require the aims pursued to be legitimate, but they also
provide exhaustive lists of aims which can legitimately be served. These aims are
extremely broadly phrased and include public safety, prevention of crime, protection of
morals and of the rights of others, and national security.
 What is the purpose of the list of legitimate aims?
The purpose is to narrow down the possibility for restricting fundamental rights to those situations in
which such restrictions really can be considered reasonable and justifiable, and it makes the
limitation clauses less indeterminate.
 What is the ‘very weighty reasons’ test?
The Court may decide to apply a so-called ‘very weighty reasons test’, which is particularly used in
relation to unequal treatment based on certain a priori suspicious grounds, such as ethnicity, gender
and sexual origin. This test has a similar result to leaving a narrow margin of appreciation, in that, in
practice, the very weighty reasons test implies very strict review by the Court. The ‘very weighty
reasons’ test was applied in the Genderdoc-M case, because it suspected that the refusal was related
to the prima facie unacceptable ground of sexual orientation.
 What is the relationship between the legitimate aim and proportionality?
Chapter 10: Necessity, Proportionality and Fair Balance

 What is the purpose of the necessity, proportionality and fair balance tests?
Restrictions of Convention rights also must be shown to be necessary or proportionate, and there
must be a fair balance between the aim being served and the right being restricted. The Court regards
these requirements as central to the review of the legitimacy and justifiability of restrictions of
fundamental rights. This is true in particular for the fair balance requirement, which also plays an
important role in positive obligations cases. When applying the necessity test, the Court may indeed
pay attention to the closeness of the connection between the interests served by a certain limitation
and underlying core principles such as that of democracy…
 Explain the necessity test?
In the Sunday Times case the Court provided further clarification, breaking down the necessity
requirement into different elements: ‘It must .. . be decided whether the “interference” complained of
corresponded to a “pressing social need”, whether it was “proportionate to the legitimate aim
pursued”, [and] whether the reasons given by the national authorities to justify it are “relevant and
sufficient”
 Explain the proportionality test?
The Court may apply a proportionality test to determine if there was a pressing social need for a
restriction, while in other cases itmayopt for tests that are not mentioned in the formula, such as the
least restrictive means test or a test ofsuitability
 Describe the relevant and sufficient test?
The requirement of relevance and sufficiency’ can be read to mean that there must be a certain
importance to the restrictions, as well as a certain adequacy and appropriateness of the restriction to
serving objectives of general interest.
 What is the balancing test?
In many of its judgments, the Court resorts to a balancing test. Taking account of the weight of the
individual interest affected, the seriousness of the interference, the importance of certain
governmental aims and the need for the interference to achieve such aims, it makes an overall
assessment of the reasonableness of the national act, measure or decision.
 How does the Court decide if an interest is weighty?
If a case affects an aspect of the Convention right that comes very close to the main values and
principles underlying the Convention, or if there is a strong European consensus on the importance
of a right, the Court will hold that the concomitant interest is particularly weighty, and it will require
an equally weighty general interest to justify a restriction of that right.
The specific weight of an interest may although also depend on the circumstances of the case.
 Why does it matter whether an interference is intrusive?
The Court has found that stronger and more weighty reasons are needed if an interference is very
intrusive or onerous in nature.
 What is meant by “the essence of a right”?
‘the limitations applied must not restrict or reduce the access left to the individual in such a way or to
such an extent that the very essence of the right is impaired’  It sometimes seems as if the
‘essence’ of the right constitutes an inviolable and absolute core that no national measure or decision
is allowed to affect and that cannot be ‘balanced away’ by any governmental interest, however
weighty it might be. Such an absolute reading implies that the Court must define more or less clearly
and in general terms what, then, constitutes the ‘very essence’ or the ‘core’ of a Convention right.
 What role does the quality of the national decision-making process play?
Thus, the Court accepts that there may be good reason to adopt a blanket rule that does not allow for
(much) individualisation, especially from a perspective of legal certainty. It is equally clear,
however, that in many cases the Court will still reject automatically and indiscriminately applied
legislation if individual balancing would have been the better way to provide effective protection of
the Convention rights on the national level.
Hannover and von Hannover v Germany, Merits and just satisfaction, App No 40660/08, App No 60641/08,
2012
Vörđur Ólafsson v. Iceland, Merits and Just Satisfaction, App No 20161/06, 2010 (paras 74-84)
Jahn and Others v. Germany, Merits, App No 46720/99, App No 72203/01, App No 72552/01, 2005
(paras.93-95 )
Delfi AS v. Estonia, Merits and Just Satisfaction, App No 64569/09, 2015 (paras. 77-83)
A, B and C v. Ireland, Merits and Just Satisfaction, App No. 25579/05, 2010
Alajos Kiss v. Hungary, Merits and Just Satisfaction, App No. 38832/06, 2010 (paras. 37-44)
9-10 Article 2 and Article 8
ART. 2
David Harris et al., ‘Chapter 5: Article 2: The Right to Life’, in: Harris et al., Law of the European
Convention on Human Rights, 4th ed., Oxford UP, 2018. Itslearning
1) What are the positive and negative obligations regarding the right to life?
The first sentence of Art. 2 (1) states that “everyone´s right to life shall be protected by law. In LCB v UK,
the court held that this establishes a positive obligation for states to take “appropriate steps to safeguard the
lives of those within their jurisdiction.”
2) Does art. 2 include an obligation to live?
Art. 2 does not include an obligation to live. Although the article contains two substantive obligations: the
general obligation to protect by law the right to life, and the prohibition of intentional deprivation of life,
delimited by a list of exceptions. Art. 2 also contains a procedural obligation to carry out an effective
investigation into alleged breaches of its substantive limb.
3) Does art. 2 allow for assisted suicide?
Article 2 is no barrier to committing suicide. I can neither be a barrier to assisted suicide and euthanasia.
4) What kind of obligations does a state have regarding preventive measures?
States must take the necessary diligent steps to prevent harm by third parties (both persons and non-state
entities) over which they can exercise control.
5) In how far does art. 2 protect the unborn child?
According to the Commission (X v the UK, 1980):
… having regard to the need to protect the mother’s life, which was indissociable from that of the unborn
child: “The ‘life’ of the foetus is intimately connected with, and it cannot be regarded in isolation of, the life
of the pregnant woman.
If Article 2 were held to cover the foetus and its protection under this Article were, in the absence of any
express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the
continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would
mean that the ‘unborn life’ of the foetus would be regarded as being of a higher value than the life of the
pregnant woman”. Page 252
6) There are exceptions to the right to life – under which circumstances is it allowed to take a life?
Article 2 is often referred to as an ‘absolute right’. These are rights that can never be interfered with by the
state. There are situations, however, when it does not apply.
For example, a person’s right to life is not breached if they die when a public authority (such as the police)
uses necessary force to:
 stop them carrying out unlawful violence
 make a lawful arrest
 stop them escaping lawful detainment, and
 stop a riot or uprising.
Of course, even in these circumstances, the force used must be essential and strictly proportionate. Force is
‘proportionate’ when it is appropriate and no more than necessary to address the problem concerned.
7) How is art. 2 relevant to the climate case? x
Pretty v. The United Kingdom (Application no. 2346/02) Judgment of 29 April 2002 -
https://hudoc.echr.coe.int/eng#{%22dmdocnumber%22:[%22698325%22],%22itemid%22:[%22001-
60448%22]}
1) Paras. 7-10: What are the factual and the legal problems of the case?
An applicant suffering from motor neurone disease, which is associated with progressive muscle weakness
affecting the voluntary muscles of the body. A disease that causes death by the weakness in the breathing
muscles. The progression of the disease cannot be prevented by treatment. The applicant´s condition is bad,
and she is paralysed. She wishes to be able to control how and when she dies and thereby be spared that
suffering and indignity. The applicant is however prevented by her disease from committing suicide without
assistance. It is a crime to assist another to commit suicide. Therefore, the applicant’s solicitor writes a letter
on her behalf, wishing to give an undertaking not to prosecute the applicant´s husband, if he assists her to
commit suicide in accordance with her wishes.
2) Para. 35: Explain the applicant’s submission in your own words. Is it a valid legal argument? x
3) Para. 36: Does the government have valid arguments? x
4) Paras. 37-42: On what grounds does the court find no violation of art. 2 ECHR? x
Öneryildiz v. Turkey, (Application no. 48939/99), judgment 30 Nov. 2004

Paras. 10-43; 59-62; 65-74; 75-96
1) What is the case about? Who is the plaintiff, and the State(s) in question?
Two Turkish nationals v. the republic of Turkey. Relying on Articles 2, 8 and 13 of the Convention
and on Article 1 of Protocol No. 1, the applicants submitted that the national authorities were
responsible for the deaths of their close relatives and for the destruction of their property as a result
of a methane explosion on 28 April 1993 at the municipal rubbish tip in Ümraniye (Istanbul). They
further complained that the administrative proceedings conducted in their case had not complied
with the requirements of fairness and promptness set forth in Article 6 § 1 of the Convention.
2) Which sources besides the ECHR (and national law) does the court refer to? x
3) What obligations is the court concerned about? x
4) Explain the government’s and the applicant’s arguments in your own words. x
5) Which general principles does the court find to be applicable in the present case? Explain
them.
The positive obligation in art. 2  to take all appropriate steps to safeguard the right to life fulfilling
the purposes of art. 2
ART. 8
European Court of Human Rights: Guide on Article 8 of the European Convention on Human Rights,
available at https://www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf (updated 31 August 2021),
paragraphs 73-89, 104-106, 158-166, 169-171, 243, 292-305, 419-431, 491-506, 509-510, 511-513
1) What are the various aspects of Article 8?
Art. 8 protects the right to respect for private and family life. Focusing on fundamental values and
essential aspects, and procedural aspect.
Article 8 has 4 different rights in one: 1) family life, 2) private life, 3) home and 4) correspondence.
2) How is each aspect defined?
1) Family life: Protect the integrity of the family. Includes 2 types of rights.  1.
The right to live together without the authorities meddling = negative right &
2. Also, a positive obligation for the State (may be obligated to legally
recognise a family)
2) Private life: The privacy within the “traditional home”. The court notes that
the concept of “private life” is a broad term not susceptible to exhaustive
definition. It covers:
a. The physical and psychological integrity of a person.
i. Multiple aspects of the person’s physical and social
identity.
ii. Elements such as, for example, gender identification, name
and sexual orientation and sexual life
b. Beyond a person’s name, his or her private and family life may
include other means of personal identification and of linking to a
family.
3) Correspondence: Communicating with others is an essential part of private
life. Any kind of communication. Face-to-face, content and metadata, private
and commercial correspondence.
Any interference in correspondence must happen in accordance with the art.
8(2)
4) Home: Autonomous concept  “Sufficient and continuous links with specific
place.”  “domicile”
Interference with home  Destruction, displacement, confiscation, noise,
disruption of living conditions, police entry/search not based on law. Also,
environmental issues.
Severity threshold… which the applicants must prove.
Procedural aspect  Article 8 does not only cover administrative procedures as well as judicial
proceedings, but it is also ancillary to the wider purpose of ensuring proper respect for, inter alia,
family life. According to the court the procedural aspect of art. 8 requires the decision-making
process leading to measures of interference to be fair and to afford due respect to the interests
safeguarded by the Article.
3) Which aspects are particularly relevant to the Climate Case?

The Applicants are victims for the purpose of Article 34: the effects upon them to which this
Application relates constitute interference with their rights/interests under Article 2 and/or Article 8.
The aspect of home is particularly relevant. They speak about interference with their home, and the
environmental issues.
Giacomelli v. Italy, app.no 59909/00, November 2, 2006

The plaintiff is Piera Giacomelli is an Italian national. The state in question is Italy. The case
concerns that there had been a violation of Article 8 (right to respect for private and family life) of
the European Convention on Human Rights. The applicant complained under Article 8 that the
persistent noise and harmful emissions from the plant entailed severe disturbance to her environment
and a permanent risk to her health and home.
2) Does the Court cite or discuss other international law sources?
No.
3) Are there any preliminary objections? What are they about, and what does the Court say?
The government has a preliminary objection concerning the case in the national court.
4) Which articles do the Court discuss?
Art. 8 (right to respect for private and family life)
Art. 41 (just satisfaction)
5) Is it a positive or negative obligation (or both)?
No matter if it is a positive or negative obligation, since the assessment would be the same.
6) Why does the Court find a violation/non-violation?
The Court held that there had been a violation of art. 8.  “Having regard to the foregoing, and
notwithstanding the margin of appreciation left to the respondent State, the Court considers that the
State did not succeed in striking a fair balance between the interest of the community in having a
plant for the treatment of toxic industrial waste and the applicant’s effective enjoyment of her right
to respect for her home and her private and family life.“
a) What are the relevant interests, and how are they weighed?
The relevant interests include, that for several years the applicants right to
respect for her home was seriously impaired by the dangerous activities
carried out at the plant 30 metres away. The Court considers, however, that
the violation of the Convention has indisputably caused the applicant
substantial non-pecuniary damage. She felt distress and anxiety as she saw
the situation persisting for years. In addition, she had to institute several sets
of judicial proceedings in respect of the unlawful decisions authorising the
plant’s operation.
7) What aspects does the Court examine?

Para 79.: “The Court considers that in a case such as the present one, which involves government
decisions affecting environmental issues, there are two aspects to the examination which it may carry
out. Firstly, it may assess the substantive merits of the government’s decision, to ensure that it is
compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that
due weight has been accorded to the interests of the individual.”
8) Do you agree with the Court’s assessment? Give reasons x
11 Article 14
FRA & Council of Europe: Handbook on European non-discrimination law, 2018, available at
https://www.echr.coe.int/Documents/Handbook_non_discri_law_ENG.pdf Chapters 1.3 (not 1.3.3.), 1.4
(focus only on EU Charter), 2.1 and 2.2.
1) What are the relevant laws?
Article 14 of the ECHR prohibits discrimination only in relation to the exercise of another right
guarded by the Convention.
- Article 14 guarantees equality in ‘the enjoyment of […] [the] rights and freedoms’
set out in the ECHR. The ECtHR will therefore not be competent to examine
complaints of discrimination unless they fall within the ambit of one of the rights
protected by the ECHR.
Protocol nr. 12 to the convention for the protection of human rights and fundamental freedoms 
the prohibition of discrimination became a free-standing right. (not ratified in Denmark)
Article 20 of the EU Charter confirms that everyone is equal before the law; Article 21 prohibits any
discrimination on an open list of grounds.
2) How does the law differ between the EU and the CoE?
3) How do the courts determine discrimination?

4) How is direct discrimination defined?
5) How is indirect discrimination defined?
D.H. and others v. the Czech Republic (GC), 57325/00, November 13, 2007, particularly paragraphs 12-
28, (108-123), 124-210
The applicants are 18 Czech nationals of Roma origin, vs. the Czech Republic (GC). The case is
about the applicants’ placement in special schools because, they allege, of their Roma origins.
2) Does the Court cite or discuss other international law sources?
3) Are there any preliminary objections? What are they about, and what does the Court say?
4) Which articles do the Court discuss?
5) Is it a positive or negative obligation (or both)?
6) Is the case about direct or indirect discrimination?
7) What kind of proof does the Court use?
8) Why does the Court find a violation/non-violation?
A lot of children were illiterate, because their parents were illiterate. This was a big issue, which
they tried to solve by using the special school system
9) Do you agree with the Court’s assessment? Give reasons.
10) Are there any dissenting or concurring opinions? What is the gist of those?
12 The Climate Case
In order to work with the climate case, it is necessary that you have read and worked with the cases of the
previous classes:
 Öneryildiz v. Turkey, 48939/99, judgment 30 Nov. 2004
 Giacomelli v. Italy, app.no 59909/00, November 2, 2006
 D.H. and others v. the Czech Republic (GC), 57325/00, November 13, 2007
We will also draw on your knowledge of the principles of the ECHR that have been covered in the previous
classes.
Lastly, you need to have read the climate case application.
13 Quo vadis ECtHR?
Spano, Robert, ‘The Future of the European Court of Human Rights—Subsidiarity, Process-Based Review
and the Rule of Law’, (Advance article) 2018 Human Rights Law Review, https://doi-org.proxy1-
bib.sdu.dk/10.1093/hrlr/ngy015
Case of Salem v. Denmark, 77036/11, 01/12/2016

- The applicant alleged that it would be in breach of Article 8 of the Convention to
expel him from Denmark.
- Para. 82
Case of Amrollahi v. Denmark, 56811/00, 11/07/2002

https://menneskeret.dk/monitorering/afgoerelsesdatabase/amrollahi-v-denmark-0
- The applicant complained under Article 8 of the Convention that, as a result of his
expulsion from Denmark, he will be separated from his wife and children, who
cannot be expected to follow him to Iran.
- The Court decided to apply Rule 39 of the Rules of Court, indicating to the
Government that it was desirable in the interests of the parties and the proper
conduct of the proceedings not to expel the applicant pending the Court's decision.
- Para 44.
Why does the ECtHR reach a different conclusion in these two cases?
- The ECtHR looks at “how connected they are to the Danish society”.
 Look up the author. What is his job? Does this make him more or less credible?
Robert Spano; Icelandic jurist. A serving judge of the Strasbourg Court. Makes him more credible.
 The author distinguishes two different phases in the life of the ECHR. What are they?
1. Substantive embeddedness
2. Procedural embedding
 The substantive embedding phase:
a. When did the „substantive embedding phase begin, and why?
b. What are the four elements of the substantive embedding phase?
 What was the criticism of the convention system?
 The procedural embedding phase:
a. What does it mean that the review is process-based?
b. What is the relationship between the principle of subsidiarity and the universality of
human rights?
c. Why is it important to distinguish between core/absolute rights, and qualified rights?
d. What are the main elements of the procedural embedding phase?
e. What is the von Hannover-non substitution principle?
f. What is the importance of the quality of the national parliamentary processes?
 What does the author conclude about the future of the ECHR system?
Supplementary material:
Madsen, Mikael Rask, ‘The Challenging Authority of the European Court of Human Rights: From Cold War
Legal Diplomacy to the Brighton Declaration and Backlash’, 79 (2016) Law and Contemporary Problems,
141-178.
1. How does the author characterize the change in the ECtHR over time?
2. What is the framework the author uses to analyze the transformation of the authority of the
ECtHR?
3. What effect did the expansion of the ECHRs membership in the late 1990s have on the Court?
4. How has the right to individual application evolved through the years? And what effect has
this right had on the authority of the Court?
5. What was the role of the European Commission of Human Rights?
6. What is meant by “effet utile”?
7. Compare and contrast the different experiences of Denmark and the UK at the Court?
8. What has – according to the author – caused the backlash against the Court?
9. What is the effect of the Brighton Declaration? (And what is the legal status of the
Declaration?)
Madsen, Mikael Rask: Rebalancing European Human Rights: Has the Brighton Declaration
Engendered a New Deal on Human Rights in Europe?
(available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2993222%20)

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Remember not to put your name on the WE!

Deadlines…always at 4 pm Danish time.

2) The UK High Court acknowledged parental responsibility; however, nevertheless appointed an

Remember not to put your name on the WE!

Deadlines…always at 4 pm Danish time.

Date Time Classroom Class Topic Teacher

The Council of Europe, guardian of human rights (2022) https://edoc.coe.int/en/an-overview/6206-the-

Partial agreements of the Council of Europe (2013) https://edoc.coe.int/en/an-overview/5697-partial-

Article 19 TEU  The court of justice of the EU

3) What is the legal status of the EUCFR?

4) Describe the basic structure of the EUCFR?

5) Why is Article 52 EUCFR important?

6) What is the principle of mutual trust in EU law?

2) Where and how does the OSCE work? x

 Arms and border control

4) How is implementation of commitments ensured/enhanced? x

- The Court also distinguishes personal autonomy as a core value of the

COURTalks: The admissibility of an application:

How the Court Works:

When did Protocol 16 enter into force?

Has Denmark ratified Protocol 15 and/or 16?

Does Denmark have any reservations filed to either Protocol 15 or 16?

If yes, then what is it about?

Which method(s) of interpretation did the Court use?

What does “secure” actually mean? x

What does “within their jurisdiction” mean?

3) What is the concept of contactless control? x

Violeta Moreno-Lax, ‘The Architecture of Functional Jurisdiction: Unpacking Contactless Control - On

6) Which procedures are expressly or impliedly required of Article 15(3)? x

o Van Kempen’s four categories of obligations

Chapter 6: Vertical and horizontal effects

 What is an indirect horizontal effect?

 What can a state be held responsible for?

Chapter 7: The margin of appreciation doctrine

 What are the core values of lawfulness? x

Chapter 9: Legitimate Aim

Chapter 10: Necessity, Proportionality and Fair Balance

Öneryildiz v. Turkey, (Application no. 48939/99), judgment 30 Nov. 2004

3) Which aspects are particularly relevant to the Climate Case?

Giacomelli v. Italy, app.no 59909/00, November 2, 2006

7) What aspects does the Court examine?

3) How do the courts determine discrimination?

Case of Salem v. Denmark, 77036/11, 01/12/2016

Case of Amrollahi v. Denmark, 56811/00, 11/07/2002

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