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Browsing by Subject "ECtHR"

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  • The European Court of Human Rights Perspectives on Genocide Related Hate Speech - A Critical Analysis 
    Heikkinen, Tatjaana (2023)
    The European Convention on Human Rights (ECHR) guarantees everyone’s right to freedom of expression under article 10. Freedom of expression can be restricted if the restriction is prescribed by law, pursues a legitimate aim, and is necessary in a democratic society. The European Court of Human Rights (ECtHR) handles cases concerning article 10 frequently and some of these cases concern hate speech and genocide denial. This thesis seeks to discover how the ECtHR has handled cases relating to the holocaust denial and the denial of the Armenian genocide. This thesis will thus describe and analyse the relevant case law. This thesis will also attempt to uncover if the ECtHR approaches the two genocides in a similar manner, or whether the examination of the relevant cases indicates that a hierarchy of genocides exists in the ECtHR case law. The ECtHR has handled several cases relating to holocaust denial, whereas case law relating to the Armenian genocide is few. In a majority of holocaust denial cases the ECtHR has found no violation of article 10 and many forms of denialistic speech are not protected by the ECHR. In denial cases concerning the Armenian genocide, the ECtHR has found a violation of the applicant’s freedom of expression. Therefore, denialistic speech relating to the Armenian genocide is permitted. An examination of the case law indicates that the holocaust is in an elevated position. The ECtHR recognises the holocaust as a clearly established historical fact, however the Armenian genocide is not recognised as such. Furthermore, article 17 is often applied either directly or as an interpretive tool in the examination of the holocaust case law. The ECtHR has stated in a majority of holocaust denial cases that the application has been manifestly ill-founded or incompatible ratione materiae with the provisions of the ECHR in light of article 17 of the ECHR. Article 17 is not applied customarily in the Armenian genocide denial related case law. Incitement to hatred is presumed in cases of holocaust denial, but the same assumption does not apply in relation to the Armenian genocide. Victims of the holocaust and their right to their dignity are also customarily referenced in the judgments. The ECtHR case law has made it more difficult to apply the same protections to the victims of the Armenian genocide. It therefore seems that there exists a hierarchy of genocides in the ECtHR case law.
  • The Extraterritorial Reach of Positive Obligations : the ECtHR Case of S.S. and the Others v. Italy 
    Heinänen, Saku (2021)
    The thesis is a study of the communicated case ‘S.S. and the Others v. Italy’ (application no. 21660/80) of the European Court of Human Rights (ECtHR). The application is on behalf of the victims of an incident in which a migrant boat found itself in distress after having left Libya for Europe. The Libyan Coast Guard failed to rescue all of the migrants and allegedly acted negligently, mistreating those they took onboard, and returned them to Libya, exposing them to continued ill-treatment and some of them also to forced return (refoulement) to their countries of origin. Italy is a State Party to the European Convention on Human Rights (ECHR), and has a bilateral agreement, ‘Memorandum of Understanding’ (MoU), with Libya (a non-ECHR State). On the basis of the MoU, Italy funds and equips the Libyan Coast Guard. The agreement can be seen as a means to ‘outsource’ border control and to instruct Libya to intercept migrants before they reach Italy and the European Union (EU), thus effectively circumventing the obligations of the ECHR. The research question is in two parts. First, I ask whether Italy had extraterritorial jurisdiction as stated in Article 1 ECHR, and second, if it had, has Italy violated its positive obligations to secure the applicants’ rights. Jurisdiction is a ‘threshold criterium’ for the Court to study the merits of an application. As for the violations, the thesis focuses on Article 2 (right to life) and Article 3 (prohibition of torture; includes also the prohibition of forced return, or refoulement). The methodology is doctrinal in that the thesis aims to examine critically the central features of the relevant legislation and case law in order to create an arguably correct and sufficiently complete statement on the Court’s reasoning and outcome. The main sources are the provisions of the ECHR itself and the relevant previous case law of the Court, together with a literature review. Additionally, there are third-party interveners’ statements and a video reconstruction of the events. The Court’s questions and information requests to the parties, as attached to the application, are used as a starting point. Besides a hypothesis of the argumentation and the decision of the Court, some estimations are made about what could be the consequences of the decision to such bilateral pacts as the MoU between Italy and Libya, and, in general, to ‘deals’ between the EU Member States and third or transit countries. Finally, the thesis reflects on the eventual repercussions on the topical issue of the EU Commission’s 23.9.2020 proposal for the New Pact on Migration and Asylum, which appears to encourage the Member States to maintain and develop outsourcing practices.

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