Europe in Belgian Prisons: Assessing the Impact of the Council of Europe Anti-Torture Committee and the European Court of Human Rights

The undeniable impact of the European Convention on Human Rights on the legal systems – and the wider society – of Member States of the Council of Europe would not have been possible without its unique monitoring system, centred around the European Court of Human Rights and the Committee of Ministers of the Council of Europe. The present article assesses the extent to which the European Court's judgments that have found violations of the procedural obligations under Articles 2 and 3 of the Convention to investigate unlawful killings, disappearances, acts of torture or other ill-treatment have, in fact, led to an improvement in the capability of the domestic legal systems of states parties to ensure accountability for such abuses. On the basis of four case studies, it is concluded that the European Court's judgments, coupled with the supervisory powers of the Committee of Ministers, have the potential to make a very great impact on the capability of domestic legal systems to deal with gross violations of fundamental human rights, and have led to clear and positive changes within the domestic legal systems of respondent states. Nevertheless, this is by no means always the case, and it is suggested that, in order for the Convention system to achieve its full potential in the most politically charged cases, the European Court should adopt a more proactive approach to its remedial powers by ordering specific remedial measures, to include in particular the opening or reopening of investigations.

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The Impact of the Pan-European General Principles of Good Administration on Swiss Law

Good Administration and the Council of Europe ◽

10.1093/oso/9780198861539.003.0014 ◽

2020 ◽

pp. 353-374

Author(s):

Nadja Braun Binder ◽

Ardita Driza Maurer

Keyword(s):

Human Rights ◽

Case Law ◽

Administrative Law ◽

European Convention ◽

Council Of Europe ◽

European Court ◽

Swiss Law ◽

Written Law ◽

The Impact

This chapter is dedicated to exploring the impact on Swiss administrative law of the pan-European general principles of good administration developed within the framework of the Council of Europe (CoE). The chapter claims that the standards stemming from the European Convention on Human Rights and the case law of the European Court of Human Rights have been adopted in an exemplary way by Swiss authorities. The influence was especially strong in the 1980s and 1990s. The same cannot be said regarding other documents of the CoE, whose impact remains disparate because many aspects of the pan-European general principles of good administration were already part of the national written law. The chapter concludes that despite the exemplary integration of CoE instruments heated debates on the content of these instruments are not excluded from Switzerland.

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Las cláusulas de restricción en el Convenio Europeo de Derechos Humanos

Teoría y Realidad Constitucional ◽

10.5944/trc.47.2021.30727 ◽

2021 ◽

pp. 469

Author(s):

Lara Redondo Saceda

Keyword(s):

Human Rights ◽

Case Law ◽

European Convention ◽

Council Of Europe ◽

Derechos Humanos ◽

European Court ◽

El Sistema ◽

The Impact

El presente trabajo pretende analizar el sistema de restricciones al ejercicio de los derechos previsto en los artículos 8 a 11 del Convenio Europeo de Derechos Humanos. Así, el objetivo principal es reflexionar sobre la incidencia de estas cláusulas de restricción, su desarrollo jurisprudencial por parte del Tribunal Europeo de Derechos Humanos y su significado en la construcción del sistema de derechos humanos del Consejo de Europa.This paper is intended to analyse the system of restrictions on the exercise of rights provided by articles 8 to 11 of the European Convention on Human Rights. Thus, the principal aim is reflecting on the impact of these restriction clauses, their case-law development by the European Court of Human Rights and their meaning on the construction of the Council of Europe Human Rights System.

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PREVENTION OF TORTURE ON THE TEMPORARILY OCCUPIED TERRITORIES OF UKRAINE

Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies ◽

10.17721/1728-2195/2021/3.118-24 ◽

2021 ◽

pp. 142-147

Author(s):

Kh. Yamelska

Keyword(s):

Human Rights ◽

Legal Status ◽

Effective Means ◽

The State ◽

Council Of Europe ◽

European Court ◽

Occupied Territories ◽

The Government ◽

Legal Pressure ◽

The Impact

The article reveals the content of armed aggression and the legal status of the temporarily occupied territories of Ukraine. Russia's aggression against Ukraine is considered in historical retrospect. Cases of torture and other ill-treatment on the temporarily occupied territories have been demonstrated in specific cases. The article examines the state of human rights on the temporarily occupied territories, namely the prevention of torture and other ill-treatment. Ways to prevent torture and ill-treatment in order to respect human rights and maintain the rule of law have been identified. The author determined that system of counteraction to aggression of Russia, which consists the political, legal and economic means, includes the prevention of torture and ill-treatment.The author notes that the adoption of UN GA resolutions and other documents of the Committee of Ministers of the Council of Europe, the Parliamentary Assembly of the Council of Europe, the Organization for Security and Co-operation in Europe are new elements of increasing legal pressure on Russia. The submission of interstate applications by the Government of Ukraine to the European Court of Human Rights against the Russian Federation is one of the effective means of preventing torture. The article reveals the impact of expert and advocacy activities of non-governmental human rights organizations on the prevention of torture and the state of human rights on the temporarily occupied territories. It is noted that maintaining contacts with the citizens of the Autonomous Republic of Crimea, constant informing, as well as obtaining information by the Ukrainian side on the state of human rights in the temporarily occupied territory provides an opportunity to partially prevent such violations and allow future reintegration of these territories. Keywords: prevention of torture, temporarily occupied territories, armed aggression, observance of human rights.

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DOES ARTICLE 2 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS PRESCRIBE AN ABSOLUTE PROHIBITION OF THE DEATH PENALTY? THE IMPACT OF RECENT PRACTICE OF EUROPEAN COURT OF HUMAN RIGHTS

TEME ◽

10.22190/teme190205042i ◽

2020 ◽

pp. 607

Author(s):

Ivan B Ilić ◽

Saša Sava Knežević

Keyword(s):

Human Rights ◽

Death Penalty ◽

European Convention ◽

War And Peace ◽

Council Of Europe ◽

European Court ◽

Critical Interpretation ◽

The Right ◽

Almost All ◽

The Impact

In paragraph 1 of Article 2 of the European Convention on Human Rights (ECHR), the imposition of the death penalty is permitted, as a departure from the right to life. In the last decades there has been a tendency for the absolute abolition of the death penalty, in times of war and peace. As a result of this effort, almost all European countries abolished the death penalty. In addition, the Council of Europe adopted Protocol 6 and Protocol 13, which completely abolished the death penalty. The European Court also, in its practice, using the principle of "convention as a living instrument", has changed its approach to the scope of the ban on the application of the death penalty. The authors deal with a critical interpretation of the case-law of the European Court of Human Rights, trying to answer the question, of whether there has been an abrogation of the provision of paragraph 1 of Article 2, so that according to that provision, there is an absolute ban on the application of the death penalty in the Council of Europe member states.

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The Innocuous Impact of Pan-European General Principles of Good Administration on Hungarian Law and Legal Practice

Good Administration and the Council of Europe ◽

10.1093/oso/9780198861539.003.0018 ◽

2020 ◽

pp. 449-477

Author(s):

Petra Lea Láncos

Keyword(s):

Human Rights ◽

Legal System ◽

Case Law ◽

Soft Law ◽

Full Potential ◽

Council Of Europe ◽

Legislation And Jurisprudence ◽

European Court ◽

The Impact

This chapter discusses the influence of the pan-European principles of good administration in the Hungarian legal system. It discloses that while the impact and role of these pan-European principles, in particular that of the case law of the European Court of Human Rights, are growing in Hungarian legislation and jurisprudence, clear traces of them are still difficult to discern. It also finds that, despite some influence stemming from the Council of Europe (CoE) in the codification concepts underlying recent procedural reforms, the full potential to that effect is far from being realized. In particular, reliance on soft law instruments of the CoE remains problematic, in part due to legal formalism inherited from the country’s socialist past.

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The Impact of the ECHR and of Pan-European General Principles of Good Administration on the Administrative Law of Portugal

Good Administration and the Council of Europe ◽

10.1093/oso/9780198861539.003.0015 ◽

2020 ◽

pp. 377-402

Author(s):

Rui Tavares Lanceiro

Keyword(s):

Human Rights ◽

Legal System ◽

Administrative Law ◽

Fundamental Rights ◽

European Convention ◽

Council Of Europe ◽

Complete Evaluation ◽

European Court ◽

Democratic Revolution ◽

The Impact

This chapter explores the impact on Portuguese administrative law of the pan-European principles of good administration developed within the framework of the Council of Europe (CoE). It highlights that ratification of the European Convention on Human Rights has helped to deepen democracy and safeguard the protection of fundamental rights, not only in the direct aftermath of the democratic revolution of 25 April 1974 which brought down the dictatorship of the “Estado Novo” regime but up to today. The chapter further argues that numerous cases at the European Court of Human Rights have resulted in reforms to the Portuguese legal system, especially concerning fair trial requirements. At the same time the influence of other CoE conventions and recommendations remains somewhat limited. The chapter concludes that the overall impact of the pan-European principles of good administration has not been properly studied and, thus, complete evaluation thereof is not possible.

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The Pan-European General Principles of Good Administration in Sweden

Good Administration and the Council of Europe ◽

10.1093/oso/9780198861539.003.0010 ◽

2020 ◽

pp. 256-274

Author(s):

Jane Reichel

Keyword(s):

Human Rights ◽

Administrative Law ◽

European Convention ◽

Council Of Europe ◽

European Court ◽

State Liability ◽

The Right ◽

Administrative Sanctions ◽

The Impact ◽

Right Of Access

This chapter explores the impact of the pan-European general principles on Swedish administrative law. The chapter claims that the European Convention on Human Rights and the case law of the European Court of Human Rights have had a great impact on important sectors thereof, such as areas connected to the right of access to courts, procedural safeguarding of administrative sanctions, and state liability. At the same time other standards of good administration developed within the framework of the Council of Europe seem to slip under the radar in the Swedish legal system and are not usually relied on by Swedish administrative courts or the Swedish ombudsman. An explanation for this lack of reliance may lie in the fact that Swedish law already has long-standing traditions with well-defined concepts and procedures in this field.

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Council of Europe

10.1093/oso/9780198786627.003.0004 ◽

2018 ◽

Author(s):

Oliver Lewis

Keyword(s):

Human Rights ◽

European Convention ◽

Social Rights ◽

Council Of Europe ◽

Persons With Disabilities ◽

European Committee ◽

European Court ◽

Human Rights Treaties ◽

Fundamental Freedoms ◽

Two Bodies

This chapter presents an overview of the adjudicative bodies of the Council of Europe—namely, the European Court of Human Rights (established by the European Convention on Human Rights and Fundamental Freedoms (ECHR)) and the European Committee of Social Rights—and outlines their mandates with regard to integrating UN human rights treaties. It analyses how these two bodies have cited the Convention on the Rights of Persons with Disabilities (CRPD). The dataset was forty-five cases dealt with by the Court and two collective complaints decided by the Committee that cite the CRPD up to 2016. Notwithstanding the relatively small size of the dataset, the conclusions are that the Council of Europe system has yet to engage seriously in the CRPD’s jurisprudential opportunities. The reasons for this cannot be ascertained from a desk-based methodology, and further research is required.

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In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽

10.1515/icl-2019-0040 ◽

2020 ◽

Vol 14 (1) ◽

pp. 43-69

Author(s):

Eszter Polgári

Keyword(s):

Human Rights ◽

Rule Of Law ◽

Case Law ◽

Council Of Europe ◽

The Rule Of Law ◽

Working Definition ◽

European Court ◽

Structured Analysis ◽

Definition Of ◽

Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

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