Protecting vulnerable groups in Europe: highlights from recent case law of the European Court of Human Rights

ABSTRACT

This paper focuses on the recent cases of the European Court of Human Rights (the ECtHR, the Court) in which the Court offered legal protection to vulnerable groups. For this purpose, the paper will first discuss the vulnerability paradigm before the ECtHR and draw the list of groups recognised by the Court as vulnerable. It will then turn to the case law to trace the recent trends and developments in the Court’s focus when protecting vulnerable groups. In particular, the research covers the Court judgements rendered in the last four years (from 1 January 2019 to 31 December 2022).

KEYWORDS:

• Vulnerable groups
• vulnerability
• vulnerable groups in the European Court of Human Rights case law

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 While the ECHR does not use the term ‘vulnerability’, it does include various clauses that take into account the particular circumstances of certain communities. The ECHR prohibits discrimination (Article 14), protects the rights of people deprived of liberty, the rights of a child, religious minorities, etc. The Additional Protocols expand on certain rights that are particularly relevant to vulnerable groups (e.g. Protocol 12 that provides for the general prohibition of discrimination).

2 Lourdes Peroni and Alexandra Timmer, ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law’, International Journal of Constitutional Law 11, no. 4 (2013). https://academic.oup.com/icon/article/11/4/1056/698712.

3 For a more detailed analysis see Agnė Limantė, ‘Vulnerable Groups in the Case Law of the European Court of Human Rights’, in Legal Protection of Vulnerable Groups in Lithuania, Latvia, Estonia and Poland, Vol. 8, European Union and Its Neighbours in a Globalized World, ed. Agnė Limantė and Dovilė Pūraitė-Andrikienė (Cham: Springer International Publishing, 2022), 29–54. do:10.1007/978-3-031-06998-7_2; and Yussef Al Tamimi, ‘The Protection of Vulnerable Groups and Individuals by the European Court of Human Rights’, European Journal of Human Rights 2016 (2016): 561–83.

4 Peroni and Timmer, ‘Vulnerable Groups’.

5 Al Tamimi, ‘The Protection of Vulnerable Groups’.

6 Ingrid Nifosi-Sutton, The Protection of Vulnerable Groups under International Human Rights Law (Routledge, 2017). https://www.routledge.com/The-Protection-of-Vulnerable-Groups-under-International-Human-Rights-Law/Nifosi-Sutton/p/book/9780367266837.

7 There were also several papers focusing on Article 14 ECHR and bringing to the attention the situation of vulnerable groups. A paper by Arnardóttir contributed to the discussion on vulnerable groups by scrutinising Court’s approach in Article 14 jurisprudence. In the paper, she argues that, while group vulnerability under Article 14 continues to have the function of facilitating stricter review and a more substantive approach in the case at hand, this is not a material change as the traditional ‘suspect’ discrimination grounds approach could be described in exactly the same terms. Instead, the article argues that the novelty involved rather seems to be the potential of vulnerability to function as a tool for identifying and elaborating the instances when variations in approach may be appropriate even within the same discrimination ground (Oddný Mjöll Arnardóttir, ‘Vulnerability under Article 14 of the European Convention on Human Rights’, Oslo Law Review 4, no. 3 (2017): 14. do:10.18261/issn.2387-3299-2017-03-03). Few years later, Kim argued that despite the vigorous efforts of the Court to overcome the innate constraints of Article 14, the provision has been ineffective in protecting disadvantaged and vulnerable groups. Before special consideration for vulnerable groups was introduced by the Court, Article 14 struggled to protect these groups due to the parasitic character of the provision and inconsistent application by the Court (So Yeon Kim, ‘Les Vulnérables : Evaluating the Vulnerability Criterion in Article 14 Cases by the European Court of Human Rights’, Legal Studies (May 24, 2021): 1–16. do:10.1017/lst.2021.21).

8 O.O. v. Russia, Application No. 36321/16, ECtHR, 21 May 2019 (concerning individuals prosecuted by the Uzbek authorities on charges of religiously or politically motivated crimes); Szurovecz v. Hungary, Application no. 15428/16, ECtHR, 8 October 2019 (case on freedom of expression, vulnerability mentioned in the context); T.K. and S.R. v. Russia, Applications nos. 28492/15 and 49975/15, ECtHR, 19 November 2019 (concerning ethnic Uzbeks facing extradition to Kyrgyzstan); Caamaño Valle v. Spain, Application No. 15613/10, ECtHR, 11 February 2020 (concerning persons with mental illness); Vovk and Bogdanov v. Russia, Application No. 15613/10, ECtHR, 11 February 2020 (concerning children as a vulnerable group); Cînța v. Romania, Application no. 3891/19, ECtHR, 18 February 2020 (concerning person with mental illness); Kukhalashvili and Others v. Georgia, Application Nos. 8938/07 and 41891/07, ECtHR, 2 April 2020 (concerning persons deprived of liberty; prison population); S.M. v. Croatia, Application no. 60561/14, ECtHR, 25 June 2020 (concerning women victim of human trafficking); Kaminskas v. Lithuania, Application no. 44817/18, ECtHR, 4 August 2020 (vulnerability mentioned only in the context); G.L. v. Italy, Application No. 59751/15, ECtHR, 10 September 2020 (concerning children with mental disabilities); Strøbye and Rosenlind v. Denmark, Applications nos. 25802/18 and 27338/18, ECtHR, 2 February 2021 (concerning persons with mental illness); V.C.L. and A.N. v. the United Kingdom, Applications nos. 77587/12 and 74603/12, ECtHR, 16 February 2021 (concerning children victims of human trafficking); Yocheva and Ganeva v. Bulgaria, Applications nos. 18592/15 and 43863/15, ECtHR, 11 May 2021 (children noted as belonging to a vulnerable group by the parties and the Government); Kurt v. Austria, Application no. 62903/15, ECtHR, 15 June 2021 (concerning women victim of domestic violence); M.D. and Others v. Russia, Applications nos. 71321/17 and 9 others, ECtHR, 14 September 2021 (concerning refugees and asylum seekers); Selygenenko and Others v. Ukraine, Applications Nos. 24919/16 and 28658/16, ECtHR, 21 October 2021 (concerning internally displaced persons, vulnerability not mentioned by the Court); N. v. Romania, Application no. 38048/18, ECtHR, 16 November 2021 (case on persons with mental disability); M.H. and Others v. Croatia, Application Nos. 15670/18 and 43115/18, ECtHR, 18 November 2021 (concerning children and asylum seekers); Ahmadova v. Azerbaijan, Application no. 9437/12, ECtHR, 18 November 2021 (case on eviction from home, vulnerability mentioned in the context); Jivan. v. Romania, Application no. 62250/19, ECtHR, 8 February 2022 (case on persons with physical disabilities); Anatoliy Marinov v. Bulgaria, Application no. 26081/17, ECtHR, 8 February 2022 (case on persons with mental disabilities); Khasanov and Rakhmanov v. Russia, Applications nos. 28492/15 and 49975/15, ECtHR, 29 April 2019 (concerning ethnic Uzbeks facing extradition to Kyrgyzstan); Darboe and Camara v. Italy, Application no. 5797/17, ECtHR, 21 July 2022 (case on children asylum seekers); Y.P. v. Russia, Application no. 43399/13, ECtHR, 20 September 2022 (case on involuntarily sterilisation, vulnerability mentioned in the context).

9 Chapman v. UK, Application No. 27238/95, ECtHR [GC], 18 January 2001

10 DH and Others v. The Czech Republic, Application No. 57325/00, 13 November 2007.

11 Horváth and Kiss v. Hungary, Application No. 11146/11, ECtHR, 29 January 2013.

12 Kiyutin v Russia, Application No. 2700/10, ECtHR, 10 March 2011.

13 Alexandra Timmer, ‘Kiyutin v. Russia: Landmark Case Concerning the Human Rights of People Living with HIV’, Strasbourg Observers (blog), March 21, 2011. https://strasbourg.weichie.dev/2011/03/21/kiyutin-v-russia-landmark-case-concerning-the-human-rights-of-people-living-with-hiv/.

14 Alajos Kiss v. Hungary, Application No. 38832/06, ECtHR, 20 May 2010.

15 On voting rights of persons with mental disabilities, see also the recent case Anatoliy Marinov v. Bulgaria, Application no. 26081/17, ECtHR, 8 February 2022.

16 Kukhalashvili and Others v. Georgia, Application Nos. 8938/07 and 41891/07, ECtHR, 2 April 2020.

17 Centre for Legal Resources on behalf of Valentin Campeanu v Romania, Application No. 47848/08, ECtHR, 17 July 2014.

18 Opuz v. Turkey, Application No. 33401/02, ECtHR, 9 June 2009.

19 Vovk and Bogdanov v. Russia, Application No. 15613/10, ECtHR, 11 February 2020.

20 Gawlik v. Liechtenstein, Application No. 23922/19, 16 February 2021.

21 S.M. v. Croatia, Application No. 60561/14, ECtHR, 25 June 2020.

22 M.S.S. v. Belgium and Greece, Application No. 30696/09, ECtHR, 21 January 2011.

23 Limante, ‘Vulnerable Groups in the Case Law of the European Court’.

24 Fernandes de Oliveira v. Portugal, Application no. 78103/14, ECtHR, 31 January 2019.

25 Rooman v. Belgium, Application no. 18052/11, ECtHR, 31 January 2019.

26 Centre for Legal Resources on behalf of Valentin Campeanu v Romania, Application No. 47848/08, ECtHR, 17 July 2014.

27 The Court first found that Article 2 had been violated at the first instance hearing at the ECtHR; however, the Grand Chamber concluded that there had been no such violation.

28 Peter Bartlett, ‘The Right to Life and the Scope of Control: Fernandes de Oliveira v Portugal’, Strasbourg Observers (blog), March 18, 2019. https://strasbourg.weichie.dev/2019/03/18/the-right-to-life-and-the-scope-of-control-fernandes-de-oliveira-v-portugal/.

29 Rooman v. Belgium, Application no. 18052/11, ECtHR, 31 January 2019.

30 G.M. and Others v The Republic of Moldova, Application No. 44394/15, ECtHR, 22 November 2022.

31 Cînța v. Romania, Application No. 3891/19, ECtHR, 18 February 2020.

32 See also Kocherov and Sergeyeva v. Russia (2016).

33 G.L. v. Italy, Application No. 23922/19, 10 September 2020.

34 Merel Vrancken, ‘Substantive Equality as the Driving Force behind Reasonable Accommodations for Pupils with Disabilities: The Case of G.L. v. Italy’, Strasbourg Observers (blog), October 1, 2020. https://strasbourg.weichie.dev/2020/10/01/substantive-equality-as-the-driving-force-behind-reasonable-accommodations-for-pupils-with-disabilities-the-case-of-g-l-v-italy/.

35 Bayram v. Turkey, Application No. 7087/12, 4 February 2020.

36 Jivan. v. Romania, Application no. 62250/19, ECtHR, 8 February 2022.

37 KanciaŁ v. Poland, Application No. 37023/13, ECtHR, 23 May 2019

38 Kukhalashvili and Others v. Georgia, Application Nos. 8938/07 and 41891/07, ECtHR, 2 April 2020.

39 Kargakis v. Greece, Application No. 27025/13, ECtHR, 14 January 2021. For the case comment see Andrea Broderick and Delia Ferri, ‘Kargakis v. Greece: Protection in Substance for Detainees with Disabilities but a Web of Missed Opportunities’, Strasbourg Observers (blog), March 12, 2021. https://strasbourg.weichie.dev/2021/03/12/kargakis-v-greece-protection-in-substance-for-detainees-with-disabilities-but-a-web-of-missed-opportunities/.

40 Judgement (Grand Chamber) of 16 July 2020.

41 For a more extensive case comment see Vandita Khanna and Natasa Mavronicola, ‘Living with HIV/AIDS in Prison: Segregation and Othering Endorsed by the ECtHR in Dikaiou v Greece’, Strasbourg Observers (blog), September 21, 2020. https://strasbourg.weichie.dev/2020/09/21/living-with-hiv-aids-in-prison-segregation-and-othering-endorsed-by-the-ecthr-in-dikaiou-v-greece/.

42 Qualifying asylum seekers as a vulnerable group is not that straight forward. For instance, Judge Sajó in his dissenting opinion in M.S.S. v. Belgium and Greece (2011) noted: ‘although many asylum-seekers are vulnerable persons, they cannot be unconditionally considered as a particularly vulnerable group’; ‘asylum-seekers are far from being homogeneous if such a group exists at all’.

43 Ilias and Ahmed v. Hungary, Application No. 47287/15, ECtHR, 21 November 2019.

44 See also Vladislava Stoyanova, ‘Ilias and Ahmed v. Hungary (Eur. Ct. H.R.)’, International Legal Materials 59, no. 3 (2020): 495–553. do:10.1017/ilm.2020.30; Vladislava Stoyanova, ‘The Grand Chamber Judgment in Ilias and Ahmed v Hungary: Immigration Detention and How the Ground Beneath Our Feet Continues to Erode’, Strasbourg Observers (blog), December 23, 2019. https://strasbourg.weichie.dev/2019/12/23/the-grand-chamber-judgment-in-ilias-and-ahmed-v-hungary-immigration-detention-and-how-the-ground-beneath-our-feet-continues-to-erode/. Recently, a number of cases on migrants’ rights reached the Court leading to the development of law in this area. For instance, M.K. and Others v. Poland (2020) the ECtHR condemned State practice of systematic push back of asylum seekers and offered clarifications regarding the prohibition of collective expulsion at land borders. (M.K. and Others v. Poland, Applications nos. 40503/17, 42902/17 and 43643/17, ECtHR, 23 July 2020).

45 Darboe and Camara v. Italy, Application no. 5797/17, ECtHR, 21 July 2022.

46 Budina and Chaprazov v. Bulgaria, Application No. 12567/13, ECtHR, 16 February 2020. This judgement is analysed in detail in Emma Várnagy, ‘Guest Post: Budinova and Chaprazov v Bulgaria – A Guide to Public Statements Degrading Minorities’. https://www.echrblog.com/2021/03/guest-post-budinova-and-chaprazov-v.html (accessed November 1, 2021).

47 For critical assessment of this judgement see Valeska David, ‘The Court’s First Ruling on Roma’s Access to Safe Water and Sanitation in Hudorovic et al. v. Slovenia: Reasons for Hope and Worry’, Strasbourg Observers (blog), April 9, 2020. https://strasbourg.weichie.dev/2020/04/09/the-courts-first-ruling-on-romas-access-to-safe-water-and-sanitation-in-hudorovic-et-al-v-slovenia-reasons-for-hope-and-worry/.

48 Volodina v. Russia, Application No. 41261/17, ECtHR, 9 July 2019.

49 For detailed analysis see Ronagh J. A. McQuigg, ‘The European Court of Human Rights and Domestic Violence: Volodina v. Russia’, International Human Rights Law Review 10, no. 1 (2021, May 7): 155–67. do:10.1163/22131035-01001002.

50 Volodina v. Russia (No 2), Application No. 40419/19, ECtHR, 14 September 2021.

51 Tkhelidze v. Georgia, Application No. 33056/17, ECtHR, 8 July 2021.

52 Kurt v. Austria, Application No. 62903/15, ECtHR, 15 June 2021.

53 See also Kim, “Les Vulnérables.”

54 Kurt v. Austria, Application No. 62903/15, ECtHR, 15 June 2021.

55 Osman v United Kingdom, Application No. 23452/94, ECtHR, 28 October 1998.

56 For a detailed and critical assessment of this case see Lisa Maria Weinberger, ‘Kurt v Austria: A Missed Chance to Tackle Intersectional Discrimination and Gender-Based Stereotyping in Domestic Violence Cases’, Strasbourg Observers (blog), August 18, 2021. https://strasbourgobservers.com/2021/08/18/kurt-v-austria-a-missed-chance-to-tackle-intersectional-discrimination-and-gender-based-stereotyping-in-domestic-violence-cases/.

57 See L. R. v. North Macedonia, Application no. 38067/15, ECtHR, 23 January 2020, Kurt v. Austria, Application No. 62903/15, ECtHR, 15 June 2021; Yocheva and Ganeva v. Bulgaria, Applications Nos. 18592/15 and 43863/15, ECtHR, 11 May 2021.

58 Quite a few judgements in 2019–2021 concerned children who were subject to sexual abuse. See, e.g. A and B v. Croatia, Application No. 7144/15, ECtHR, 20 June 2019; X and Others v. Bulgaria, Application No. 22457/16, ECtHR, 2 February 2021.

59 Khan v. France, Application No. 12267/16, ECtHR, 28 February 2019.

60 See Kim, ‘Les Vulnérables’.

Additional information

Notes on contributors

Agne Limante

Dr Agnė Limantė is a chief researcher at the Law Institute of the Lithuanian Centre for Social Sciences. In 2023 she was elected as a Member of the Humanities and Social Sciences Expert Committee at the Research Council of Lithuania. Dr Limantė has received an MA in EU law from King's College London (awarded with the Prize for Best Dissertation on the MA in EU Law) and a PhD from Vilnius University, Lithuania. Recognizing her research achievements, in 2017 the Lithuanian Academy of Sciences awarded her with a Young Scientist Scholarship. Dr Limantė is an expert on human rights and has a number of publications in the area. Overall, after defending her PhD thesis, she has published over 40 scientific papers in national and international journals or as chapters of books. She was also editor of books published by Routledge, Springer and Intersentia. Dr Limantė also has extensive experience working in international teams and conducting comparative research.