Introduction 2018 (Overview of the Case-law of the ECHR 2018)

In 2018[1], the cases of particular legal interest dealt, among other subjects, with issues relating to civil and criminal justice, and in particular to disciplinary matters concerning judges, to the scope of private and family life, the home and the right to respect for reputation, to the media and the Internet, to Articles 15 and 18 of the Convention, to the protection of minorities, to advertising and commercial activity, and to the application of Convention law in the area of sport.

The Grand Chamber delivered fourteen judgments and one decision in 2018. In the case of S., V. and A. v. Denmark it set down the conditions in which States may have recourse to preventive detention in order to counter the threat of violence by spectators at sporting events (Article 5). It elaborated on its case-law concerning the detention of persons of unsound mind from the standpoint of Article 5 § 1 (e) and Article 7 § 1 (Ilnseher).

The Grand Chamber also addressed the compatibility with Article 6 § 1 of disciplinary proceedings against judges (Denisov and Ramos Nunes de Carvalho e Sá). In the Naït-Liman judgment, concerning the victims of acts of torture, the Grand Chamber ruled on whether the national courts are required to examine compensation claims in cases where the alleged acts of torture were committed outside the national territory by, or under the jurisdiction of, a third State (Article 6). The Grand Chamber also defined the criteria to be taken into account in deciding whether restrictions on access to the superior courts are compatible with Article 6 § 1 (Zubac).

In G.I.E.M. S.r.l. and Others the Grand Chamber examined whether a confiscation of property in the absence of a criminal conviction was compatible with the right to be presumed innocent (Article 6 § 2), and the principle that offences and penalties must be provided for by law (Article 7). It further clarified the content of the right of suspects to have access to a lawyer at the pre-trial stage, the privilege against self-incrimination and the right to remain silent (Beuze). In Correia de Matos the Grand Chamber elucidated its case-law on the requirement for an accused person to be assisted by a lawyer and the scope of the right to conduct one’s own defence (Article 6 § 3 (c)). The Murtazaliyeva judgment clarified the jurisprudential principles applicable to the calling and examining of defence witnesses for the purposes of Article 6 § 3 (d) of the Convention.

The Denisov judgment, which concerned “professional and social reputation”, set out the principles for establishing whether a professional dispute falls within the ambit of “private life” within the meaning of Article 8.

In its judgment in Navalnyy the Grand Chamber examined whether the arrest on several occasions of an opposition political activist who was detained and penalised for taking part in public gatherings was compatible with Articles 5 and 6 and with the right to freedom of assembly (Article 11). For the first time, the Court found a violation of Article 18 taken in conjunction with Article 11 (ibid.), and found that an applicant could rely on Article 18 read in conjunction with Article 5 § 3 (Selahattin Demirtaş (no. 2)).

Also for the first time, the Court examined a case concerning the application of Islamic religious law (Sharia law) to an inheritance dispute against the wishes of the beneficiary of the will (Molla Sali, Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1).

With regard to the right to the peaceful enjoyment of possessions, the judgment in G.I.E.M. S.r.l. and Others spelled out the need to afford procedural safeguards to the owners of confiscated property. In Lekić the Grand Chamber explored the implications of a law on companies for the financial liability of company directors.

Finally, in Radomilja and Others the Grand Chamber examined the scope of Articles 32 and 34 of the Convention, and in particular the definition of the notion of “complaint” and thus of the scope of the case before the Court.

Other important cases concerned the extent of States’ obligations regarding criminal investigations into murder (Akelienė), including the murder of an investigative journalist (Mazepa and Others), the pre-trial detention of journalists (Mehmet Hasan Altan and Şahin Alpay) and the pre-trial detention of a member of parliament (Selahattin Demirtaş (no. 2)).

With regard to Article 6, in addition to examining the applicability of that Article to a call for tenders for the award of funding (Mirovni Inštitut), the Court revisited its case-law on the use of arbitration to resolve disputes in professional sport (Mutu and Pechstein). It also ruled on the need for foreign defendants to be provided with interpreting in order to conduct their defence (Vizgirda).

Other cases of legal interest concerned the scope of “private” life in connection with the disclosure by the authorities of information required for the protection of national security (Anchev), with the opening by an employer of personal files stored by an employee on his work computer (Libert), and with doping controls in sport (National Federation of Sportspersons’ Associations and Unions (FNASS) and Others). Also under Article 8, the Court considered the protection to be afforded during a criminal investigation to the relatives of the deceased (Solska and Rybicka and Lozovyye) and the authorities’ obligations towards a minor whose parents were detained by the police (Hadzhieva).

For the first time, the Court explored the balance to be struck between the right to the protection of personal data (Article 8) and the online archiving of information by the media (Article 10) (M.L. and W.W. v. Germany), and ruled on the use by the media of hyperlinks to defamatory content (Magyar Jeti Zrt). It also examined the reconciling of religious sensitivities and freedom of expression in the sphere of advertising (Sekmadienis Ltd.).

Other cases of jurisprudential interest concerned dangerous activities (Kurşun), the regulation of commercial activity (O’Sullivan McCarthy Mussel Development Ltd and Könyv-Tár Kft and Others) and the regulation of the private rental sector (F.J.M. v. the United Kingdom).

In its judgments in Mehmet Hasan Altan and Şahin Alpay, the Court considered the validity of a derogation during a state of emergency (Article 15) and, in Ireland v. the United Kingdom, ruled for the first time on a request for revision of a judgment in an inter-State case (Rule 80 of the Rules of Court).

The Court’s case-law also had regard to the interaction between the Convention and European Union law. For the first time the Court ruled on the extent of the obligation for courts whose decisions are not open to appeal to give reasons for refusing to seek a preliminary ruling from the Court of Justice of the European Union (CJEU) (Baydar). The Court also examined a case concerning a CJEU judgment in the context of infringement proceedings (O’Sullivan McCarthy Mussel Development Ltd). It referred to the Charter of Fundamental Rights (Correia de Matos), to EU directives in criminal matters (Correia de Matos and Vizgirda) and to the case-law of the CJEU (Lekić).

In several cases the Court took into account the interaction between the Convention and international law (Naït-Liman, Mutu and Pechstein, Correia de Matos, National Federation of Sportspersons’ Associations and Unions (FNASS) and Others, Molla Sali and Lekić). It found support in the rulings of the International Court of Justice (Lekić), the Council of Europe Framework Convention for the Protection of National Minorities (Molla Sali ) and the Council of Europe’s Anti-Doping Convention (National Federation of Sportspersons’ Associations and Unions (FNASS) and Others).

It addressed States’ positive obligations under the Convention (Hadzhieva) and their procedural obligations (S., V. and A. v. Denmark, Akelienė and Vizgirda). A number of important judgments elucidated the margin of appreciation to be granted to the Contracting Parties to the Convention (Naït-Liman, Zubac and Correia de Matos, among others) and the role of the principle of subsidiarity (Radomilja and Others).

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1. The overview is drafted by the Directorate of the Jurisconsult and is not binding on the Court.

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