scholarly journals Khlaifia and Others v. Italy

2018 ◽  
Vol 112 (2) ◽  
pp. 274-280
Author(s):  
Jill I. Goldenziel
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
European Convention ◽  
Individual Rights ◽  
Detention Centers ◽  
European Court ◽  
Grand Chamber ◽  
The Individual ◽  
The Arab Spring ◽  
Domestic Law

In Khlaifia and Others v. Italy, the Grand Chamber of the European Court of Human Rights (Grand Chamber or Court) released a landmark opinion with broad implications for how states must respect the individual rights of migrants. In the judgment, issued on December 15, 2016, the Court held that Italy's treatment of migrants after the Arab Spring violated the requirement of the European Convention on Human Rights (ECHR) that migrants receive procedural guarantees that enable them to challenge their detention and expulsion. The Court also held that Italy's treatment of migrants in detention centers did not violate the ECHR's prohibition on cruel and inhuman treatment, in part due to the emergency circumstances involved. The Court further held that Italy's return of migrants to Tunisia did not violate the prohibition on collective expulsion in Article 4 of Protocol 4 of the ECHR. Enforcement of the judgment would require many European states to provide a clear basis in domestic law for the detention of migrants and asylum-seekers. Given the global diffusion of state practices involving migrants, and other states’ desires to restrict migration, this case has broad implications for delineating the obligations of states to migrants and the rights of migrants within receiving countries.

Is the assessment under Article 8 ECHR for migrants justifiable?

2021 ◽  
pp. 1023263X2110614
Author(s):  
Jennie Edlund ◽  
Václav Stehlík
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
European Convention ◽  
Individual Rights ◽  
Foreign Nationals ◽  
European Court ◽  
The Family ◽  
The Individual ◽  
The Way

The paper analyses the protection granted under Article 8 of the European Convention of Human Rights for different immigration cases. The way the European Court of Human Rights determines compliance with Article 8 for settled migrants differs from the way the Court determines compliance for foreign nationals seeking entry or requesting to regularize their irregular migration status. The paper argues that the European Court of Human Rights application of different principles when determining a States’ positive and negative obligations is contradicting its own case law. It also argues that the absence of justification grounds for the refusal of foreign nationals who are seeking entry lacks legitimacy. By treating all immigration cases under Article 8(2) the paper suggests that the differentiation between cases should be based on how a refusal of entry or an expulsion would impact on the family life. The paper also suggests that more consideration should be given towards the insiders interests when balancing the individual rights against the state's interests. These changes would lead to a more consistent and fair case law and generate a more convergent practice by the states which will increase the precedent value of the Court's judgements.

Ilias and Ahmed v. Hungary (Eur. Ct. H.R.)

2020 ◽  
Vol 59 (3) ◽  
pp. 495-553
Author(s):  
Vladislava Stoyanova
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
European Convention ◽  
European Court ◽  
Grand Chamber ◽  
Article 5

The European Court of Human Rights (ECtHR) Grand Chamber decided in Ilias and Ahmed v. Hungary that the holding of the applicants, who were asylum-seekers, in the “transit zone” between Hungary and Serbia did not amount to deprivation of liberty under Article 5 of the European Convention on Human Rights (ECHR). On this point, the Grand Chamber overruled the unanimously adopted Chamber judgment. At the same time, the Grand Chamber ruled that Hungary had violated Article 3 ECHR since Hungary did not assess the risk of ill-treatment for the applicants in Serbia.

scholarly journals Sharia Law in Europe? Legacies of the Ottoman Empire and the European Convention on Human Rights

2019 ◽  
Vol 8 (3) ◽  
pp. 517-566
Author(s):  
Dominic McGoldrick
Keyword(s):  
Human Rights ◽  
Ottoman Empire ◽  
Modern Human ◽  
Social Contexts ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
European Court ◽  
Grand Chamber ◽  
The Individual

Abstract In Western Thrace in Greece, a legacy of the Ottoman Empire survives in the form of religious law (Sharia). This article examines how international human rights law has approached the compatibility of such religious laws with modern human rights instruments and particularly with the European Convention on Human Rights (ECHR). It portrays the situation on Western Thrace within the wider historical, legal and social contexts of Muslims in Greece. It explains how the ‘Muslims in Western Thrace’ came to be identified as a particular legal minority, why Sharia continued to be applied to them and only to them, and examines their contemporary legal and human rights status. There follows an extensive critique of the judgment of the Grand Chamber of the European Court of Human Rights in Molla Sali v. Greece in December 2018. Although the narrow factual issue in the case concerned inheritance rights, the case raised general issues concerning the individual as the central subject of human rights law and the relationship between individual and minority rights protection. The article concludes by reflecting on the place of individual consent within a human rights framework and the systemic implications of the Molla Sali case with respect to the possible future of Sharia in the social and legal spaces of the ECHR.

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.

Indoctrination, Secularism, Religious Liberty, and the Echr

2006 ◽  
Vol 55 (4) ◽  
pp. 929-944 ◽  
Author(s):  
Sylvie Langlaude
Keyword(s):  
Religious Communities ◽  
European Convention ◽  
Market Place ◽  
Property Ownership ◽  
Legal Personality ◽  
European Court ◽  
Normative Order ◽  
Grand Chamber ◽  
The Individual ◽  
The Relationship

With its judgment inLeyla Şahin v Turkey,1the Grand Chamber of the European Court of Human Rights has once again addressed the place of religion within the European Convention system. The Court considers two types of cases. The first focuses on individuals but has repercussions on the relationship between State and religious communities. The Court is much more individualistic in these cases, in that it focuses more on the individual and the protection of the rights and freedoms of others. The Court emphasizes values such as the prevention of indoctrination, neutrality, secularism and laïcité, especially in relation to Islam. The Court tries to promote and enforce a normative order of secularism but this has unfortunate consequences for religious freedom. The second deals with the compatibility of entire domestic regimes regulating religious affairs with the Convention, including questions of legal personality and registration, leadership and property ownership, positive obligations of the State towards the protection of religious communities against third parties, and freedom of religious choice. The aim is to promote tolerance, religious diversity, pluralism and a market place within religious beliefs. It will be shown that these two strands in the caselaw do not always sit happily together.

ECHR decision to refuse to waive the immunity of a person under article 1 of the protocol no. 6: Individual interpretations of the essence and consequences

2021 ◽  
Vol 28 (3) ◽  
pp. 257-267
Author(s):  
Bohdan V. Shchur ◽  
Iryna V. Basysta
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Method Comparison ◽  
Scientific Basis ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
International Obligations ◽  
Grand Chamber ◽  
The Individual

In present-day Ukraine, there is no unanimous answer to the question of the essence and consequences of the ECHR decision to refuse to waive immunity under Article 1 of the Protocol No. 6 either in the national criminal procedural legislation, or in the theory of criminal procedure, or among judges, investigators, prosecutors. Therefore, the purpose of the present paper is to try to attempt to formulate individual approaches to address this issue. The relevance of the subject under study is conditioned upon its theoretical and practical components. The former is that there this area is heavily understudied, and judicial practice, among other things, requires a certain scientific basis to formulate individual positions in their unity. The dilemma proposed in the title of this study was also addressed by members of the Scientific Advisory Board of the Supreme Court, who were approached by judges of the Grand Chamber for scientific opinions, emphasising the urgency and necessity of feedback from practitioners. To formulate the individual approaches serving the purpose of this study, the authors employed such general and special research methods as dialectical, induction and deduction, Aristotelian, system-structural, sampling method, comparison, and legal forecasting. Notwithstanding the fact that the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6, adopted by its plenary session in accordance with Article 4 of the Protocol No. 6 to the General Agreement on Privileges and Immunities of the Council of Europe, is “procedural”, it was proven that the Grand Chamber of the Supreme Court has the authority to conduct proceedings on the application of such a person to review the judgment precisely in exceptional circumstances. It is emphasised that the ECHR decision should be considered as one that does not aim at the final assessment of criminal proceedings, so it cannot be equated with the decision of an international judicial institution, which would state Ukraine's violation of international obligations in court and the order of its execution will differ. The authors also address the fact that the consequences of the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6 are critical. After all, such a decision of the European Court of Human Rights is the “bell” for Ukraine, which, among other things, may hint at the probability that the Court will identify the facts of human rights violations

Fundamental Rights Protection between Strasbourg and Luxembourg

2018 ◽  
Author(s):  
Katalin Ligeti
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
Individual Rights ◽  
Eu Law ◽  
The European Union ◽  
Rights Protection ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
Grand Chamber

Since long before the entry into force of the Charter of Fundamental Rights of the European Union (CFREU), the two highest courts in Europe, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have sought to develop their respective jurisprudence in such a way as to ensure a strong protection of individual rights, whilst avoiding clashes between the decisions taken in Luxembourg and Strasbourg. An important statement in this regard is provided by the Bosphorus judgment, in which the Grand Chamber of the ECtHR recognised the existence of a presumption of equivalent protection of fundamental rights under EU law. The presumption is rebuttable, but expresses the trustful attitude (and a certain degree of deference) of Strasbourg towards the ability of EU law (and of the CJEU) to protect Convention rights.

Handyside v United Kingdom (1979–80) 1 EHRR 737, European Court of Human Rights

2020 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Public Law ◽  
European Convention ◽  
European Court ◽  
Margin Of Appreciation ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Domestic Law

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Handyside v United Kingdom (1979-80) 1 EHRR 737, European Court of Human Rights. This case concerned a book which breached the Obscene Publications Act 1959. The publisher, Handyside, contended that the domestic law (the 1959 Act) breached his Article 10 rights under the European Convention on Human Rights. The case introduced the concept of the ‘margin of appreciation’ accorded to states as regards the implementation of convention rights. The case predates the passage of the Human Rights Act 1998. The document also includes supporting commentary from author Thomas Webb.

1 The Court Over Sixty Years

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Peace Treaty ◽  
Member States ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Definition Of ◽  
The Individual ◽  
Violent Conflicts

This introductory chapter provides a background of the European Convention on Human Rights (ECHR), a multilateral treaty based on humanism and rule of law. Similar to the—albeit non-binding—Universal Declaration of Human Rights (UDHR), the ECHR is a document that marks a change in philosophy and gives a new definition of the responsibility of the State towards the individual. It fixes basic values in times of change and paves the way towards reconciliation in Europe. Unlike in a peace treaty, not all wartime enemies participate in its elaboration, but, one by one, all the European States accede to it, signalling their consent to the values fixed by a small community of States in the early 1950s. Seven decades later, forty-seven European States have ratified the Convention. Admittedly, the new start based on common values could not prevent the outbreak of violent conflicts between Member States. At the same time, the resurgence of anti-democratic tendencies could not be successfully banned in all Member States, but such tendencies could be stigmatized as grave human rights violations in binding judgments of the European Court of Human Rights (ECtHR). Thus, it is not surprising that the European model of human rights protection has been attractive and inspirational for other parts of the world. Nevertheless, there was and is a debate in some Member States to withdraw from the Convention as the Court’s jurisprudence is seen to be too intrusive on national sovereignty.

Navalnyy v. Russia (Eur. Ct. H.R.)

2019 ◽  
Vol 58 (2) ◽  
pp. 315-370
Author(s):  
Corina Heri
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
Political Activism ◽  
Recent Change ◽  
European Convention ◽  
European Court ◽  
Grand Chamber ◽  
Administrative Sanctions

On November 15, 2018, the European Court of Human Rights (ECtHR) issued its judgment in Navalnyy v. Russia. The applicant in the case argued that the Russian authorities had targeted him for arrest and administrative sanctions because of his political activism. In its judgment, the Grand Chamber confirmed its recent change in approach to Article 18 of the European Convention on Human Rights (ECHR), including the normalization of the provision's scope and burden of proof. However, it displayed continued uncertainty about how to deal with measures based on a mixture of legitimate and illegitimate purposes.

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