THE CRITERIA OF ESKELINEN IN THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

Abstract

There is a general belief among the Contracting Parties to the Convention that, in addition to the individual binding nature of final judgments, the binding nature of the Court's case-law is broader, so-called ‘quasi-normative’. The consequence of this second dimension of binding is that the effects of a particular judgment are not only inter partes, but also erga omnes. In practice, this means that the doctrinal conclusions of the Court's judgments apply to all future cases that are factually and legally similar. For this reason, the ECtHR, and especially the member states (their authorities), are obliged to take into account the Court's previous case-law when making decisions on the application of the Convention and its Protocols. If they do not, they risk violating its provisions. The purpose of this article is to introduce one of the doctrines of the European Court of Human Rights that has been consistently applied over the years in the (non-) application of the Convention to ‘labour’ disputes. As will be presented in this article, the development of case law in recent years shows that the impact of this doctrine also applies to disciplinary proceedings against civil servants, as well as, for example, judges or prosecutors. The analysed doctrine is called the Vilho Eskelinen test after the decision in which it was issued. Consistent case law applying the Vilho Eskelinen test demonstrates that the implications of the doctrine created by the Vilho Eskelinen judgment are broader than originally envisaged. The Court applies the above doctrine to a range of disputes concerning civil servants, including hiring or appointment, career promotion, transfer, termination of his service, as well as disciplinary proceedings against him. Furthermore, despite the initial limitation of the Vilho Eskelinen test to civil servants, the court subsequently extended it to judges and prosecutors.