Overview of the Case-law of the ECHR 2017<\/p>\n
I welcome the decision to publish annually, as a separate publication in its own right, the Overview of the Court\u2019s principal judgments and decisions. While the Overview also appears in the Court\u2019s Annual Reports, a dedicated publication is in line with the prominence which has been given to the continuing need to reinforce efforts to disseminate the key case-law of the Court. The Court has been particularly active in this field over the years, as attested by the constant attention it gives to the development of the HUDOC database and the important work it has carried out in publishing the Case-law Information Notes, the Practical Guide on Admissibility Criteria, and the series of case-law guides and thematic Factsheets.<\/p>\n
It is essential that the case-law of the Court is known and applied at the domestic level. I would recall that, following the High-level Conference on the \u201cImplementation of the European Convention on Human Rights, our shared responsibility\u201d, the Brussels Declaration of 27\u00a0March 2015 stressed \u201cthe importance of further promoting knowledge of and compliance with the Convention within all the institutions of the States Parties, including the courts and parliaments, pursuant to the principle of subsidiarity\u201d.<\/p>\n
I believe that this new initiative will contribute to this endeavour. To be familiar with the Court\u2019s jurisprudence is central to the proper application of the Convention at the domestic level. The publication is also timely, since it coincides with the development of the Superior Court Network, which is intended to create a practical and useful means of exchanging relevant information on Convention case-law and related matters.<\/p>\n
The Overview is intended to focus on the most important cases which the Court has dealt with over the year in question. The cases are selected by the Jurisconsult\u2019s Directorate on the basis of their jurisprudential interest. They may raise issues of general interest, establish new principles or develop or clarify the case-law. The Overview will obviously refer to those judgments and decisions which are published in the Court\u2019s official Reports of Judgments and Decisions series. The approach is to draw attention to the salient points of the cases, allowing the reader to appreciate the jurisprudential significance of a particular case.<\/p>\n
Finally, I would like to thank Wolf Legal Publishers for making this publication possible. Both the 2014 and 2015 editions are being published at the same time. I look forward to the Overview establishing itself as an essential source of information on the Court\u2019s case-law, for the benefit of everyone involved in human rights protection.<\/p>\n
Guido Raimondi
\nPresident of the European Court of Human Rights
\nStrasbourg, February 2016<\/p>\n
There were developments in the case-law in a wide range of areas in 2017, the Court\u2019s approach being to read the Convention as a whole so as to ensure the coherent and harmonious interpretation of its provisions.<\/p>\n
The case-law on Articles\u00a018, 19, 37, 41 and\u00a046 was either clarified or extended. The Court explained its role in cases involving supervision by the Committee of Ministers or where the Court\u2019s judgment was the subject of interpretation by a domestic superior court. It also explained its approach regarding evidential matters and awards of just satisfaction to applicants.<\/p>\n
The Grand Chamber delivered nineteen judgments and one decision in 2017. The Lopes de Sousa Fernandes judgment elucidated the case-law concerning allegations of medical negligence (Article\u00a02). In its judgments in Hutchinson and Khamtokhu and Aksenchik, the Grand Chamber reaffirmed the relevant case-law principles both on the Article\u00a03 requirement for whole life sentences to be reducible and on penal policy regarding the execution of life sentences (Articles\u00a05 and\u00a014).<\/p>\n
The Grand Chamber also explained the distinction between \u201cdeprivation of liberty\u201d within the meaning of Article\u00a05 \u00a7\u00a01 and restrictions on \u201cfreedom of movement\u201d within the meaning of Article\u00a02 of Protocol No.\u00a04 (De Tommaso), ruled on complaints under Article\u00a05 \u00a7\u00a7\u00a01 and\u00a03 (Merabishvili) and clarified the criteria for deciding when Article\u00a06 \u00a7\u00a01 was applicable under its civil limb (De Tommaso, K\u00e1roly Nagy and Regner).<\/p>\n
It considered the right to a fair hearing in judgments concerning the lack of a public hearing (De Tommaso), the issue of arbitrariness and \u201cdenial of justice\u201d (Moreira Ferreira (no.\u00a02)), the refusal of access to confidential information held by the intelligence services (Regner) and the right to legal assistance within the meaning of Article\u00a06 \u00a7\u00a03\u00a0(c) (Simeonovi).<\/p>\n
The Paradiso and Campanelli judgment concerned the scope of the right to \u201cprivate life\u201d of a couple who were refused permission to adopt a child conceived abroad through surrogacy whom they had brought to their home country in violation of its adoption laws.<\/p>\n
The B\u0103rbulescu judgment established the jurisprudential principles governing the respective rights and obligations of employees and employers regarding personal electronic communications \u2013 such as electronic messaging \u2013 in the workplace.<\/p>\n
The Grand Chamber developed its case-law on the balance to be struck between the right to respect for private life (Article\u00a08) and the right to freedom of expression (Article\u00a010) in its judgments in Med\u017elis Islamske Zajednice Br\u010dko and Others and Satakunnan Markkinap\u00f6rssi Oy and Satamedia Oy.<\/p>\n
It also examined a difference in treatment based on \u201csex\u201d and \u201cage\u201d (Articles\u00a05 and\u00a014) as regards the sentencing of adult men compared to female, juvenile and senior offenders (Khamtokhu and Aksenchik).<\/p>\n
In the F\u00e1bi\u00e1n judgment it examined whether public and private-sector employees were, for the purposes of Article\u00a014 of the Convention, in a \u201crelevantly similar situation\u201d and whether suspension of the disbursement of a State pension was compatible with Article\u00a01 of Protocol No.\u00a01.<\/p>\n
In De Tommaso the Grand Chamber examined under Article\u00a02 of Protocol No.\u00a04 the foreseeability of measures restricting the freedom of movement and liberty to communicate of an individual considered to be a danger to society. The Garib judgment was the first case in which the Court had to scrutinise State choices regarding socio-economic measures that were liable to restrict freedom to choose one\u2019s residence.<\/p>\n
The Grand Chamber analysed for the first time the construction of Article\u00a018 of the Convention (Merabishvili) and the notion of an application \u201csubstantially the same as a matter that has already been examined\u201d by the Court, within the meaning of Article\u00a035 \u00a7\u00a02 (b) of the Convention (Harkins).<\/p>\n
Also for the first time it conducted a comprehensive review of the relevant principles governing requests for the striking out of all or part of an application (Article\u00a037) on the basis of a unilateral declaration by the respondent Government (De Tommaso). In the Burmych and Others judgment the Grand Chamber expounded on the respective roles of the Court and of the Committee of Ministers regarding follow-up applications arising out of a failure to execute a pilot judgment (Articles\u00a019 and\u00a046). In adopting its striking-out judgment (Article\u00a037), the Grand Chamber stressed the public interest in the proper and effective functioning of the Convention system. In Nagmetov it set out the circumstances in which the Court would award just satisfaction under Article\u00a041 in the absence of a properly submitted claim, and in the cases of Chiragov and Others and Sargsyan it examined the question of financial compensation for violations of the rights of persons displaced by conflict.<\/p>\n
Other important judgments concerned State obligations to protect life during a hostage-taking by terrorists (Tagayeva and Others); the giving of reasons in court decisions (Cerov\u0161ek and Bo\u017ei\u010dnik), including in cases concerning the fight against terrorism (Ramda); the right to self-determination of vulnerable people and the limits thereto (A.-M.V. v. Finland); and, for the first time, deprivation of citizenship in a terrorism and national-security context (K2 v. the United Kingdom).<\/p>\n
The Court emphasised the vulnerability and special needs of minor migrants in detention (S.F. and Others v. Bulgaria). It stressed the importance of being able to communicate freely with one\u2019s lawyer (M v. the Netherlands), of protection against homophobia (Bayev and Others), of striking a balance between freedom of expression and the prevention of terrorism (D\u00f6ner and Others) and of the protection of journalistic sources for freedom of the press (Becker). The Court also reaffirmed its case-law concerning budgetary austerity measures in the context of economic and financial crisis (P.\u00a0Plaisier B.V. and Others).<\/p>\n
Other cases of legal interest concerned human-trafficking (Chowdury and Others and J. and Others v. Austria); undercover police operations (Grba); the criminal liability of members of the government for acts or omissions in the exercise of their official functions (Haarde); the rights of transgender persons (A.P., Gar\u00e7on and Nicot); the right to manifest one\u2019s religion at school (Osmano\u011flu and Kocaba\u015f), with respect to military service (Adyan and Others) or in a court (Hamidovi\u0107); the right of the press to inform the public about the conduct of members of parliament (Selmani and Others); and the rights of victims of racially motivated violence (\u0160korjanec).<\/p>\n
Other developments in the case-law concerned the applicability of Article\u00a05 \u00a7\u00a04 (Oravec and Stollenwerk), Article\u00a07 (Koprivnikar), Article\u00a013 (Tagayeva and Others), Article\u00a035 \u00a7\u00a01 (K\u00f3sa), Article\u00a03 of Protocol No.\u00a01 (Davydov and Others and Moohan and Gillon) and Article\u00a04 of Protocol No.\u00a07 in the context of terrorist offences (Ramda).<\/p>\n
With regard to the prohibition of discrimination the Court, for the first time, found fault with the language used by a domestic court when dealing with the age and gender of a litigant (Carvalho Pinto de Sousa Morais). It also examined a case concerning a difference in the penal policy applied to male or female detainees with a child of less than a year old (Alexandru Enache) and a case concerning the recognition of same-sex couples (Ratzenb\u00f6ck and Seydl).<\/p>\n
The Court had regard to the interaction between the Convention and European Union law. It referred to the Charter of Fundamental Rights (in B\u0103rbulescu), the case-law of the Court of Justice of the European Union (in Merabishvili) and to budgetary rules imposed by EU law (in P. Plaisier B.V. and Others).<\/p>\n
It likewise took into account the interaction between the Convention and international law. Thus, as an aid to applying and interpreting the Convention, it referred to both international-law norms (for example, on the elimination of discrimination against women in Khamtokhu and Aksenchik and Alexandru Enache, and on the protection of personal data in B\u0103rbulescu) and Council of Europe norms (including the European Prison Rules in Khamtokhu and Aksenchik; data-protection texts in Satakunnan Markkinap\u00f6rssi Oy and Satamedia Oy and B\u0103rbulescu; and the Convention on Action against Trafficking in Human Beings in Chowdury and Others).<\/p>\n
In a number of cases the Court considered the States\u2019 positive obligations under the Convention (B\u0103rbulescu; Chiragov and Others; Sargsyan; Lopes de Sousa Fernandes; J. and Others v. Austria; Chowdury and Others; A.P., Gar\u00e7on and Nicot; \u0160korjanec; and Davydov and Others). It also highlighted the importance of the principle of subsidiarity (in Moreira Ferreira (no.\u00a02); Burmych and Others; Chiragov and Others; and Sargsyan) and delivered important judgments on the extent of the States\u2019 margin of appreciation (see, for example, Paradiso and Campanelli; Khamtokhu and Aksenchik; Satakunnan Markkinap\u00f6rssi Oy and Satamedia Oy; Moreira Ferreira (no.\u00a02); F\u00e1bi\u00e1n; Garib; and P.\u00a0Plaisier B.V. and Others).<\/p>\n