Heta Heiskanen, Doctoral student, University of Tampere
Criteria for case selection: What should be taken into account and how should one systematize the cases?
The traditional selection of cases is based on their significance. This classification has been based on two criteria. Firstly, cases decided by the Grand Chamber (GC) have been given higher value than judgments given by a lower section. The logical reason for this is that the GC judgments involve a greater number of judges, thus representing a wider view. However, between 2013 and 2014 the Grand Chamber has issued fewer than 30 judgments and decisions.
In addition, the publication of case reports has also indicated which cases are regarded as significant. However, in past two years, the number of published judgments and decisions has totalled just 56 (28 judgments and 28 decisions). Results from both the Grand Chamber cases and the case reports narrow the overview of the jurisprudence of the European Court of Human Rights (ECtHR).
“case selection should be representative”
Secondly, in addition to the traditional selection criteria, the selection process can be reflected in the light of the general aim of research and science, namely to achieve objective results. In addition, the purpose is to reveal developments that have not been recognized in earlier research. These two aims set the basis for case selection criteria. The objectivity of research is connected to its coverage and repeatability, and as a result, case selection should be representative.
In pragmatic terms, the search engines of Human Rights Documentation (HUDOC) and the review of the research will result in an insufficient amount of cases. However, in the context of environmental cases, for example, there is no clear understanding or definition of what constitutes an environmental case. The definition may vary across research papers, and the search engines do not provide completely reliable data. There is a fact sheet available listing a wide range of cases providing guidance in this respect. Nevertheless, the definition of an environmental case is not stable. Consequently, researchers should be clear to spell out what is meant by an environmental case in order to ensure consistency in selecting cases that fulfil the criteria.
In my doctoral dissertation, for example, the adopted definition for an environmental case is a case making reference to the environment as a threat to life or health, a protected interest in society, a competing interest used in a balancing test, or as subject to the right to information and access to court. The environment is seen as a factor in a balancing test related to the economy, but also in relation to minority rights, such as Roma rights. The coverage of environmental issues is wide, including human-caused nuisances, natural disasters, city planning, and internal environmental hazards, such as asbestos-related problems. City planning also has connections to the rights of indigenous peoples.
In addition, case selection is connected to the aim and the target audience. It may be that the aim of the research is not provide a holistic picture of the overall development of cases, but rather to focus on departures from case continuums. To achieve the aim, the selected cases should focus on reflecting the shifts in jurisprudence rather than on every relevant case. Alternatively, the aim of the research may be to introduce doctrinal developments. In this case, the selection criteria is narrower. Despite the narrow scope, representativeness should be guaranteed. Focusing on only a few cases may produce misguided results.
“the development of a substantive area such as environmental cases has not occurred in a legal vacuum; it has been impacted by other cases and doctrines”.
Furthermore, the development of a substantive area such as environmental cases has not occurred in a legal vacuum; it has been impacted by other cases and doctrines. Thus, despite the environmental focus of the research, it is necessary to use cases that are not environmental in nature. The selection of these cases is based on the assumption that they are so-called landmark cases that illustrate a significant doctrinal development. Identification of these cases is mainly based on the frequency with which the ECtHR itself and the scientific community refers to them. For example, the Demir and Baykara v. Turkey case illustrates the use of international trends. However, one should not blindly follow others, as there is a risk that potentially significant cases may be left unrecognized.
“an audience that does not have prior knowledge should be provided with the relevant cases in order to a build basic understanding of the case continuums”
The aim of the research and selection of cases is also connected to the target audience. Audiences specialized in specific set of cases will be interested in the latest cases. Conversely, an audience that does not have prior knowledge should be provided with the relevant cases in order to a build basic understanding of the case continuums. Otherwise, for readers without a holistic picture of the case-continuum, recent developments may give a false impression, for example, that the area of environmental jurisprudence is not an already well-established body of case law.
The main lessons from environmental ECtHR case systematization
“If case selection is not conducted carefully, there is a risk of emphasizing some cases over others.”
If case selection is not conducted carefully, there is a risk of emphasizing some cases over others. The reason might be the negligence of the researcher in searching through all the relevant cases. Alternatively, the researcher’s case systematization may have restricted views, so the results are not fully representative. Current ECtHR research has, for example, referred actively to the Hatton v. United Kingdom and Kyrtatos v. Greece cases, which represent the restrictive interpretation of the ECtHR. In parallel, such progressive cases as Mangouras v. Spain have not been the centre of attention, even though the latter case represents a more recent decision from the Grand Chamber than the Hatton case.
Case systematization strategies have contributed to this problem. For example, focus on Article 8 cases does not make visible the progressive development under Article 2 and 6.
At the same time, the systematization strategy of environmental jurisprudence has not interacted with the traditions of the systematization of the domestic environmental law cases. The basis for environmental regulation is that the norms govern a specific part of the environment, nature or environmental harm. In ECtHR research, mainly noise/nuisance has served as a basis for the systematization of cases. The rational explanation might be that for a long time, there were few cases per environmental problem. However, nowadays there are sufficient cases to be systematized by the nature of the environmental harm. Such a systematization strategy would help to communicate the developments for traditional environmental lawyers, and this would especially be the case when the systematization strategy is connected to domestic discussion. For example, in Finland, the green ECtHR development has not been adopted in domestic case law or environmental law literature, even though there have been cases against Finland.
In addition, there would be more room for more theoretically oriented or concept-based study in the field of green ECtHR research. It would be interesting to identify the key environmental concepts the ECtHR has used and to determine how these concepts interact with the definitions of other institutions. Furthermore, there has been little research assessing how the environmental cases have contributed to the development of the general doctrines of the ECtHR. These doctrines include positive obligations, consensus, and international trends. For example, research focusing on consensus could assess environmental cases such as Fredin v. Sweden, Uuhiniemi v. Finland, Huoltoasema Matti Eurén Oy and Others v. Finland, Fägerskiöld v. Sweden, and Vilnes and Others v. Norway.
“More transparent criteria for the selection of cases will increase the legitimacy of the results.”
Currently, journal articles on the ECtHR rarely explain the methodology of the research. Indeed, the selection of cases may not be explained at all. More transparent criteria for the selection of cases will increase the legitimacy of the results. Furthermore, the conclusions will be easier to verify and academia and funders will have a clearer understanding of the objectivity of the research. In addition to the selection of the cases, the strategy of systematization could be made clearer specifically in order to create academic discussion on the benefits and limitations of such a systematization. The awareness of the risks and benefits of certain systematization strategies might increase the quality of the research even further. In addition, for students, the discussion of case selection and the analysis of systematization strategies would provide a clearer understanding of “architypes” when conducting legal dogmatic analysis on ECtHR cases.
 See, for example, Uuhiniemi v. Finland (App. no. 21343/93), Huoltoasema Matti Eurén Oy and Others v. Finland (App. no. 26654/08), 19th January, 2010 para 3, and Alatulkkila and Others v. Finland (App. no. 33538/96), 28th July 2005, para 68.