Huseini v. Ministry of Justice and Public Security

2019 ◽  
Vol 181 ◽  
pp. 419-435
Keyword(s):  
Human Rights ◽  
Migrant Children ◽  
Best Interests ◽  
European Convention ◽  
Detention Centre ◽  
Rights Of The Child ◽  
Societal Needs ◽  
European Court ◽  
Degrading Treatment ◽  
Article 5

Aliens — Asylum seekers — Detention of migrant children — Family detained in detention centre — Conditions in detention centre — European Convention on Human Rights, 1950, Articles 3, 5 and 8 — Jurisprudence of European Court of Human Rights — Convention on the Rights of the Child, 1989, Articles 3 and 37 — Whether detention of migrant children and their parents illegal — Whether Norway violating international obligations and Constitution of Norway — Whether damages appropriateHuman rights — Prohibition of torture and inhuman or degrading treatment or punishment — Whether detention of children and their parents illegal — Jurisprudence of European Court of Human Rights — Age of children — Length and conditions of detention — Whether violation of Article 3 of European Convention on Human Rights, 1950Human rights — Right to freedom and security — Whether detention of children and their parents illegal — Jurisprudence of European Court of Human Rights — Whether detention of family measure of last resort with no possible alternative — Whether violation of Article 5(1) of European Convention on Human Rights, 1950Human rights — Right to respect for private and family life — Whether detention of children and their parents illegal — Jurisprudence of European Court of Human Rights — Whether detention justified — Whether compelling societal needs — Whether proportionate — Whether violation of Article 8 of European Convention on Human Rights, 1950Human rights — Rights of the child — Whether detention of children illegal — Convention on the Rights of the Child, 1989, Articles 3 and 37 — Interpretation of Article 3 — Best interests of the child — Prohibition of torture and inhuman or degrading treatment or punishment — Whether measure strictly necessary — Whether violation of Articles 3 and 37 of Convention on the Rights of the Child, 1989Relationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950, Articles 3, 5 and 8 — Convention on the Rights of the Child, 1989, Articles 3 and 37 — Constitution of Norway — Jurisprudence of European Court of Human Rights — 2015 report by UN Special Rapporteur on Torture — Whether detention of migrant children and their parents illegal — Whether damages appropriate — The law of Norway

AB and Others v. France

2019 ◽  
Vol 181 ◽  
pp. 404-418
Keyword(s):  
Human Rights ◽  
Illegal Immigrant ◽  
European Convention ◽  
Immigrant Status ◽  
Detention Centre ◽  
Degrading Treatment ◽  
Article 5

Human rights — Prohibition of torture and inhuman or degrading treatment or punishment — Aliens — Detention of family in detention centre — Child accompanying parents — Foreign child — Relevance of illegal immigrant status — Age of child — Length and conditions of confinement — Whether treatment exceeding permissible threshold — Whether violation of Article 3 of European Convention on Human Rights, 1950 in respect of childHuman rights — Right to liberty and security — Whether procedure prescribed by law and lawful — Deprivation of liberty in case of child — Whether detention measure of last resort with no possible alternative — Whether violation of Article 5 of European Convention on Human Rights, 1950 in respect of child

The Best Interests of the Child in the Expulsion and First-entry Jurisprudence of the European Court of Human Rights: How Principled is the Court’s Use of the Principle?

2015 ◽  
Vol 17 (1) ◽  
pp. 70-103
Author(s):  
Ciara Smyth
Keyword(s):  
Human Rights ◽  
The State ◽  
Best Interests ◽  
European Convention ◽  
Rights Of The Child ◽  
European Court ◽  
The Individual

The principle of the best interests of the child is regularly referred to by the European Court of Human Rights in its jurisprudence involving children. However, the principle is notoriously problematic, and nowhere more so than in the immigration context where the state’s sovereign interests are keenly at stake. This article critically examines the expulsion and first-entry jurisprudence of the European Court of Human Rights under Article 8 of the European Convention on Human Rights, interrogating whether a ‘principled’ approach is adopted to the best interests principle. It is argued that a principled approach is one which sees the best interests principle interpreted in the light of its parent document, the un Convention on the Rights of the Child, as interpreted by the un Committee on the Rights of the Child. It is demonstrated that despite widespread recourse to the best interests principle, the European Court of Human Rights fails to adopt a rights-based approach when identifying the best interests of the child and does not always give sufficient weight to the best interests of the child when balancing the interests of the state against those of the individual. The analysis also reveals a way for the Court to develop a more principled approach to the best interests principle.

The Best Interests of the Child

2020 ◽  
pp. 203-221
Author(s):  
Wouter Vandenhole ◽  
Gamze Erdem Türkelli
Keyword(s):  
Human Rights ◽  
Family Law ◽  
Children's Rights ◽  
Case Law ◽  
Children’S Rights ◽  
Best Interests ◽  
Rights Of The Child ◽  
European Court ◽  
Elusive Concept

The best interests of the child principle is considered a pillar of children’s rights law and, according to the UN Convention on the Rights of the Child (CRC), is to be a primary consideration in all actions concerning children. Yet best interests is an elusive concept and principle that has no single authoritative definition or description. Internationally and domestically relevant in such diverse areas as family law, adoption, migration, and socioeconomic policymaking, the best interests principle requires flexibility and is best served by a case-by-case approach, as has been recognized by the UN Committee on the Rights of the Child and the European Court of Human Rights. This chapter analyzes relevant international case law and suggests the use of a number of safeguards to prevent such requisite flexibility from presenting a danger of paternalism, bias, or misuse.

Bringing People Down

2021 ◽  
Vol 24 (3) ◽  
pp. 433-466
Author(s):  
John Vorhaus
Keyword(s):  
Health Care ◽  
Human Rights ◽  
Corporal Punishment ◽  
European Convention ◽  
Human Beings ◽  
European Court ◽  
The Status ◽  
Relational Concept ◽  
Degrading Treatment ◽  
As If

Under Article 3 of the European Convention on Human Rights, degrading treatment and punishment is absolutely prohibited. This paper examines the nature of and wrong inherent in treatment and punishment of this kind. Cases brought before the European Court of Human Rights (the Court) as amounting to degrading treatment and punishment under Article 3 include instances of interrogation, conditions of confinement, corporal punishment, strip searches, and a failure to provide adequate health care. The Court acknowledges the degradation inherent in imprisonment generally, and does not consider this to be in violation of Article 3, but it also identifies a threshold at which degradation is so severe as to render impermissible punishments that cross this threshold. I offer an account of the Court’s conception of impermissible degradation as a symbolic dignitary harm. The victims are treated as inferior, as if they do not possess the status owed to human beings, neither treated with dignity nor given the respect owed to dignity. Degradation is a relational concept: the victim is brought down in the eyes of others following treatment motivated by the intention to degrade, or treatment which has a degrading effect. This, so I will argue, is the best account of the concept of degradation as deployed by the Court when determining punishments as in violation of Article 3.

scholarly journals The legal meaning of the terms "torture", "inhuman treatment or punishment", "degrading treatment or punishment" and their distinction in the decisions of the European commission of human rights and the European court of human rights

2021 ◽  
pp. 26-33
Author(s):  
Khrystyna YAMELSKA
Keyword(s):  
Human Rights ◽  
European Commission ◽  
Criminal Code ◽  
European Convention ◽  
European Court ◽  
Convention Against Torture ◽  
Degrading Treatment ◽  
The Individual ◽  
Jus Cogens ◽  
Legal Meaning

The paper reveals the legal meaning of the terms "torture", "inhuman treatment or punishment", "treatment or punishment that degrades human dignity". A distinction between these concepts is made on the examples of court decisions of European courts, taking into account the individual circumstances of each case. The genesis of the origin of the above concepts is investigated through a prism of the decisions of the European Commission of Human Rights and the European Court of Human Rights. The paper reveals the absolute nature of the "jus cogens" norm of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The author proposes to modernize the Ukrainian criminal legislation on the reception of the position of the European Court of Human Rights on the delimitation of these concepts. In contrast to the European convention regulation of ill-treatment, torture, inhuman or degrading treatment or punishment, the author notes that the Ukrainian legislation regulates this issue quite succinctly. The Article 127 of the Criminal Code of Ukraine provides a definition only of torture, which in essence coincides with the definition of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the position of the European Court of Human Rights. The paper notes that the practice of Ukrainian courts shows that a distinction (similar to that provided by the European Court of Human Rights) is not implemented.

I respingimenti in mare di migranti alla luce della Convenzione europea dei diritti umani

2009 ◽  
pp. 591-607
Author(s):  
Alfredo Terrasi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
North African ◽  
European Court ◽  
Degrading Treatment ◽  
Migration Flows ◽  
High Seas

- Italian authorities have recently undertaken a new policy to face migration flows from north african coasts. Since May, 6th 2009 Italian coastguard and financial police vessels have intercepted a large number of boats carrying migrants and returned them to Libya, in force of a readmission agreement between Italy and Libya. These operations, even if they take place on the high seas, have to comply with the European Convention for Human Rights, considering that the migrants fall under jurisdiction of Italian authorities within the meaning of art. 1 of the Convention. In particular, on the basis of the European Court of Human Rights case law, it can be argued that returning migrants to Libya, as long as they can be exposed to torture or inhuman and degrading treatment, is prohibited by art. 3. Moreover, art. 4 or the Fourth Protocol prohibits the collective expulsions of aliens. Notwithstanding, it's uncertain whether forcible return of aliens is consistent with the latter provision considering that the European Court requires that aliens ‘leave the country' in order to apply art. 4. In the end the praxis of Italian authorities is inconsistent with the Convention non-refoulement obligation deriving from art. 3.

scholarly journals The United Kingdom’s Coronavirus Act, deprivations of liberty, and the right to liberty and security of the person

2020 ◽  
Vol 7 (1) ◽  
Author(s):  
Jonathan Pugh
Keyword(s):  
Public Health ◽  
Human Rights ◽  
European Convention ◽  
Human Rights Law ◽  
Legal Certainty ◽  
The Public ◽  
European Court ◽  
The Uk ◽  
The Right ◽  
Article 5

Abstract In response to the SARS-CoV-2 coronavirus pandemic the UK government has passed the Coronavirus Act 2020 (CA). Among other things, this act extends existing statutory powers to impose restrictions of liberty for public health purposes. The extension of such powers naturally raises concerns about whether their use will be compatible with human rights law. In particular, it is unclear whether their use will fall within the public heath exception to the Article 5 right to liberty and security of the person in the European Convention of Human Rights. In this paper, I outline key features of the CA, and briefly consider how the European Court of Human Rights has interpreted the public health exception to Article 5 rights. This analysis suggests two grounds on which restrictions of liberty enforced some under the CA might be vulnerable to claims of Article 5 rights violations. First, the absence of specified time limits on certain restrictions of liberty means that they may fail the requirement of legal certainty championed by the European Court in its interpretation of the public health exception. Second, the Coronavirus Act’s extension of powers to individuals lacking public health expertise may undermine the extent to which the act will ensure that deprivations of liberty are necessary and proportionate.

Principles Corroborated by Practice? The Use of Country of Origin Information by the European Court of Human Rights in the Assessment of a Real Risk of a Violation of the Prohibition of Torture, Inhuman and Degrading Treatment

2016 ◽  
Vol 18 (3) ◽  
pp. 302-326 ◽  
Author(s):  
Femke Vogelaar
Keyword(s):  
Human Rights ◽  
Country Of Origin ◽  
Case Law ◽  
European Convention ◽  
European Court ◽  
Real Risk ◽  
Consistent Manner ◽  
Standard Set ◽  
Degrading Treatment

This article studies the European Court of Human Rights (ECtHR) approach to country of origin information in its case law under Article 3 of the European Convention of Human Rights. It will first examine the standard set by the ECtHR on the use of country of origin information, followed by an assessment of the application of these principles by the ECtHR in its case law. The article specifically focusses on the use of country of origin information in expulsion cases of applicants from Somalia, Tamils applicants from Sri Lanka and applicants from Iran. The analysis of the ECtHR’s case law in this article will show that the ECtHR does not apply its own standards in a transparent and consistent manner. This raises questions as to the quality of the ECtHR’s assessment of the risk of a violation of Article 3.

scholarly journals MIGRANTS IN DETENTION: APPROACH OF THE EUROPEAN COURT OF HUMAN RIGHTS

TEME ◽  
2020 ◽  
pp. 957
Author(s):  
Veljko Turanjanin ◽  
Snežana Soković
Keyword(s):  
Human Rights ◽  
Main Part ◽  
European Convention ◽  
European Court ◽  
Fundamental Freedoms ◽  
The Mediterranean ◽  
Migration Crisis ◽  
The One ◽  
Article 5

The Mediterranean migrant crisis is not calming down and in the last six decades the nature and character of these migrations has changed. The authors deal with the one of the aspects of their position – detention. This work is divided into several parts. In the first part, the authors explore the problem of the migration crisis. After that, they explain in detail an Article 5 of the European Convention on Human Rights and Fundamental Freedoms. The main part of this work is devoted to the jurisprudence of the European Court of Human Rights related to the migrant’s detention.

scholarly journals International adoption: lex adoptio and the plurality of connecting factors

2021 ◽  
pp. 10-21
Author(s):  
Kseniya Olegovna Trinchenko
Keyword(s):  
Human Rights ◽  
International Adoption ◽  
Single Case ◽  
Hague Convention ◽  
Best Interests ◽  
Intercountry Adoption ◽  
Conflict Of Laws ◽  
Rights Of The Child ◽  
European Court ◽  
Substantive Law

This article analyzes the substantive law and conflict of laws law of such countries as Austria, Venezuela, Germany, Dominican Republic, Iceland, Spain, Canada (Quebec), Norway, Poland, Portugal, Switzerland, as well as bilateral agreements on legal aid, case law of the European Court of Human Rights, which demonstrates the presence general principles of law, as well as the principle of protecting the weaker party to the legal relationship, the principle of observance of best interests of a child established by the universal multilateral international agreements: Convention on Human Rights of 1950, Convention on the Rights of the Child of 1989, Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. The author examines the relevant issues of the conflict of laws regarding the manifestation of the conflict of jurisdictions, plurality of connecting factors in regulation of a set of private law relations associated with international adoption. The result of the conducted research consists in formulation of a special statute of adoption (lex adoptio), analysis of its legal nature and scope. In the context of examination of the procedure for establishing international adoption, the author identifies the problem of dépeçage (different issues within a single case are governed by the laws of different jurisdictions). A classification is provided to the combinations of plurality of connecting factors established by the legislation of foreign countries, as well as multilateral international agreement – the Inter-American Convention on Conflict of Laws Concerning the Adoption of Minors of 1984).

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