სამართალი და მსოფლიო (Apr 2022)
Jurisprudence of the Strasbourg Court of 2020
Abstract
The Article concerns the Jurisprudence of the European Court of Human Rights of 2020. It does not have an ambitious objective to give an exhaustive analysis of the Court’s Case – Law, it only tries to show several important issues, which reflect current approaches of the Court and tendencies or directions of its Case-Law development. The following issues and cases will be discussed in the Article: jurisdiction of a State (art.1) and its interconnection with the admissibility of the application (inter-state case Slovenia v. Croatia, concerning an alleged violation of convention rights of a legal entity, which could not be classified as a “non-governmental organization” in the meaning of the art. 34); refusal by the Court to acknowledge extra-territorial jurisdiction in respect of the foreign nationals who apply for a visa at an embassy or consulate abroad ( M.N and Others v. Belgium); extra-territorial effect of a refugee status within the EU (Shiksaitov v. Slovakia); just satisfaction in respect of property outside of a respondent state territory and indirect binding nature of the Court’s judgment for a State, which was not a party in convention proceedings (Molla v. Greece ); issue of a state responsibility (in the meaning of violation of negative or positive obligations) for acts committed by a state agent in his private capacity, and the issue of whether and under what circumstances the approval by a state of a committed act raises its responsibility before the Convention; obligations in the context of extradition and arbitrary release from serving a prison sentence for a racially motivated hate crime (Makuchyan and Minasyan v. Azerbaijan and Hungary); importance of the freedom of expression of a member of Parliament from the opposition political party (Selahattin Demirtaş v. Turkey,); and of an accused person during his case hearing in the context of the statements for self-defense that resulted in his conviction for defamation (Miljević v. Croatia); compatibility of an organized calling for boycott with the art. 10 and the threshold, that should never be overstepped while exercising freedom of speech (Baldassi and Others v. France), etc. It is emphasized in the Article that the Court has developed a number of new approaches and principles in order to protect vulnerable groups (Roma community, asylum seekers, homosexuals, victims of domestic violence or trafficking, children (from ill-treatment by their parents)), as well as to introduce more detailed criteria to estimate the foreseeability of criminal provisions, concept of “tribunal established by law” (within the meaning of art.6) or more guarantees for personal data protection, etc. The Author is of an opinion that ECHR does follow its way of harmonious interpretation of the Convention with the other International law instruments and, in later cases, extends the application of the principle of subsidiarity including making its judgments indirectly binding for a State, which was not a party in the convention proceedings.
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