scholarly journals Electing Team Strasbourg: Professional Diversity on the European Court of Human Rights and Why it Matters

2020 ◽  
Vol 21 (4) ◽  
pp. 621-643
Author(s):  
Kanstantsin Dzehtsiarou ◽  
Alex Schwartz
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Empirical Analysis ◽  
Holistic Approach ◽  
Quantitative Evidence ◽  
European Court ◽  
Qualified Individual

AbstractReforms to the process for electing judges to the European Court of Human Rights have generally focused on identifying the most qualified individual candidates. This Article argues for a more holistic approach, advancing a theory of why professional diversity on the European Court of Human Rights is an asset in collegial decision making. The results of original interviews with several Strasbourg judges are presented, followed by an empirical analysis of the professional backgrounds of all judges elected to the European Court of Human Rights since 1998. Although the interviews indicate that the judges themselves see the value of professional diversity, the quantitative evidence suggests a trend in the direction of a more professionally homogenous bench. The Article concludes with some suggestions for how the promotion of professional diversity might be appropriately pursued in future reforms to the process for electing Strasbourg judges.

The European Court of Human Rights and Transnational Judicial Dialogue

ICL Journal ◽  
2015 ◽  
Vol 9 (3) ◽  
Author(s):  
Carla M Zoethout
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Case Law ◽  
Judicial Decision ◽  
Council Of Europe ◽  
Judicial Decision Making ◽  
The Past ◽  
European Court ◽  
Foreign Law ◽  
The Us

AbstractOver the past decade, the European Court of Human Rights (ECtHR) seems more and more inclined to use foreign sources of law, that is to say, law that does not originate in the Convention itself or in one of the Member States of the Council of Europe. Unlike in the US, there is little discussion in Europe about this form of judicial dialogue in the case-law of the ECtHR. This paper seeks both to clarify transnational dialogue by the ECtHR and find ways to justify this practice, against the backdrop of the American debate on this topic. First, the concept of transnational judicial dialogue is analysed (Part II). Then judicial dialogue as it presents itself in the judgments of the ECtHR is assessed, especially when non-Convention or foreign law is being used in a substantive way (Part III). Subsequently, an attempt is made to define when and why the use of foreign law by the ECtHR can be considered a justifiable approach in judicial decision-making (Part IV). The paper rounds off with some concluding remarks (Part V).

scholarly journals Dismantling the Iron-Cage: the Discursive Persistence and Legal Failure of a “Bureaucratic Rational” Construction of the Admissibility Decision-Making of the European Court of Human Rights

2011 ◽  
Vol 12 (10) ◽  
pp. 1786-1812 ◽  
Author(s):  
Andrew Tickell
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Critical Analysis ◽  
Iron Cage ◽  
European Court ◽  
Rational Construction

Over the last decade, the admissibility decision-making of the European Court of Human Rights has been the focus of considerable attention in the analysis of the “mounting pressure on the Convention system,” but has enjoyed little critical analysis in legal, sociological or socio-legal literatures. This paper will argue that this combination of intense attention and critical neglect is paradoxical, and has produced fascinating and hitherto largely unnoticed discontinuities and incompatibilities between the rhetorical representation of the Court's admissibility decision-making in ongoing Convention reform debates and the published jurisprudence of the Court on those standards of admissibility.

scholarly journals Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies

2020 ◽  
Vol 21 (3) ◽  
pp. 355-384
Author(s):  
Başak Çalı ◽  
Cathryn Costello ◽  
Stewart Cunningham
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
United Nations ◽  
Dimensional Analysis ◽  
European Convention ◽  
Individual Decision ◽  
Individual Decision Making ◽  
Original Dataset ◽  
European Court ◽  
The United Nations

AbstractThis Article comparatively analyses how the prohibition of refoulement is interpreted by United Nations Treaty Bodies (UNTBs) in their individual decision-making, where we suggest they act as “soft courts.” It asks whether UNTBs break ranks with or follow the interpretations of non-refoulement of the European Court of Human Rights. This investigation is warranted because non-refoulement is the single most salient issue that has attracted individual views from UNTBs since 1990. Moreover, our European focus is warranted as nearly half of the cases concern states that are also parties to the European Convention on Human Rights. Based on a multi-dimensional analysis of non-refoulement across an original dataset of over 500 UNTB non-refoulement cases, decided between 1990–2020, as well as pertinent UNTB General Comments, the Article finds that whilst UNTBs, at times, do adopt a more progressive position than their “harder” regional counterpart, there are also instances where they closely follow the interpretations of the European Court of Human Rights and, on occasion, adopt a more restrictive position. This analysis complicates the view that soft courts are likely to be more progressive interpreters than hard courts. It further shows that variations in the interpretation of non-refoulement in a crowded field of international interpreters present risks for evasion of accountability, whereby domestic authorities in Europe may favor the more convenient interpretation, particularly in environments hostile to non-refoulement.

scholarly journals Lustration of Judges in Ukraine: National Insights and European Implications

2020 ◽  
pp. 226-245
Keyword(s):  
Human Rights ◽  
Empirical Analysis ◽  
Bosnia And Herzegovina ◽  
European Countries ◽  
Deep Insight ◽  
Social Feedback ◽  
Social Demand ◽  
European Court ◽  
The Law ◽  
Insight Into

This article primarily focuses on the Ukrainian judge lustration, analysed from diverse aspects. Ukraine’s legal lustration framework engenders two legal acts— the Law On Restoring Trust into Judicial Power in Ukraine (2014) and the law On Purification of Government (2014). Social feedback on adopting these Laws, their key objectives, provided instruments and efficiency issues are discussed. This research particularly scrutinises the fundamental European lustration standards, referencing a few European countries’ experiences: Albania, Bosnia and Herzegovina, Poland. Deep insight into national lustration procedures is given, considering the European Court of Human Rights’ relevant rulings and the Ukrainian Constitution’s provisions. Remarks on whether all lustration laws comply with the Ukrainian Constitution are offered. Addressing the High Council of Justice’s precedents, a judicial body entitled to verify the judges’ lustration results, an in-depth empirical analysis of those procedural results are provided. Overall, Ukrainian lustration embodies a unique phenomenon due to strong social demand formalized in specially designed regulation.

scholarly journals Are inspections conducted by selected administrative bodies compliant with the Constitution of the Slovak Republic and the European Convention on Human Rights?

2018 ◽  
Vol 2 (1) ◽  
pp. 70-79
Author(s):  
Lucia Smolková
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Supreme Court ◽  
Slovak Republic ◽  
Case Law ◽  
European Convention ◽  
Constitutional Court ◽  
Related Case ◽  
European Court

This paper analyses the case law of the Slovak Constitutional Court and the Slovak Supreme Court dealing with inspections conducted by selected Slovak administrative bodies – especially by the administrative bodies in the area of foodstuffs administration – where inspected companies complain that their rights guaranteed by the Slovak Constitution and the European Convention on Human Rights, namely the protection of their business premises, have been violated. The paper thus also deals with and analyses the related case law of the European Court of Human Rights and its (non)-application by the Slovak judicial bodies in their decision-making practice.

scholarly journals Algorytm jako informacja publiczna w prawie europejskim

2021 ◽  
Author(s):  
Joanna Mazur
Keyword(s):  
Decision Making ◽  
European Union ◽  
Human Rights ◽  
European Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Access Information ◽  
The Right ◽  
Automated Decision Making

The author verifies the hypothesis concerning the possibility of using algorithms – applied in automated decision making in public sector – as information which is subject to the law governing the right to access information or the right to access official documents in European law. She discusses problems caused by the approach to these laws in the European Union, as well as lack of conformity of the jurisprudence between the Court of Justice of the European Union and the European Court of Human Rights.

scholarly journals Deprivation of Liberty and Human Dignity in the Case-Law of the European Court of Human Rights

2017 ◽  
Vol 4 (2) ◽  
pp. 150 ◽  
Author(s):  
Robert Spano
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Criminal Justice ◽  
Criminal Law ◽  
Case Law ◽  
European Convention ◽  
Penal Policy ◽  
The United Kingdom ◽  
European Court ◽  
Life Sentence

In its landmark 2013 judgment of Vinter and Others v. the United Kingdom, the European Court of Human Rights held that a life sentence which is not de jure and de facto reducible amounts to a breach of the prohibition of inhuman and degrading punishment, as enshrined in Article 3 of the European Convention on Human Rights. The author, a judge of the Strasbourg Court, analyses the Vinter judgment both as it stands alone as well as how it fits into and, now, influences the Court’s case-law on Article 3 and 5 of the Convention, before reviewing the procedural requirements laid down by the Court for a ‘Vinter review’ of life sentences. In doing so, the author examines the underlying tensions between the conception of penal policy as falling within the exclusive domain of domestic decision-making and the individualistic and dignitarian notion of human rights in which the Convention system is firmly grounded. The article is based on the 2016 Bergen Lecture on Criminal Law and Criminal Justice which the author gave on 26 October 2016 at the Faculty of Law, University of Bergen. 

Subsidiarity Post-Brighton: Procedural Rationality as Answer?

2016 ◽  
Vol 30 (1) ◽  
pp. 5-23 ◽  
Author(s):  
PATRICIA POPELIER ◽  
CATHERINE VAN DE HEYNING
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Procedural Rationality ◽  
Wide Margin ◽  
High Profile ◽  
The United Kingdom ◽  
European Court ◽  
Margin Of Appreciation ◽  
Protection Of Human Rights

AbstractDuring the Interlaeken and Brighton conferences in 2010 and 2012 on the reform of the European Court of Human Rights (ECtHR or the Court) the High Contracting Parties demanded an increased focus of the Court on subsidiarity when considering cases. The ECtHR had been criticized by several states, in particular the United Kingdom (UK), for second-guessing domestic decisions of the democratically elected legislator. A procedural rationality approach could answer this critique. This approach implies that the Court takes the quality of the decision-making procedure as a decisive factor for its assessment of the proportionality of a domestic measure. In several recent high-profile cases the Court has adopted such approach providing the defending state with a wide margin of appreciation due to the high quality of the decision-making procedure. This contribution discusses to what extent the Court has applied this approach pre- and post-Brighton and the potential pitfalls. The contribution concludes that this approach could provide a vital leeway between the Court's supervisory and subsidiary role in the protection of human rights if applied coherently and consistently. However, it is no magic solution to silence the criticism against the Court as the opponents of the Court do not just reject its approach to proportionality review, but judicial review of legislative decisions altogether.

The European Human Rights System and the Right to Life Seen through Suicide Prevention in Places of Detention: Between Risk Management and Punishment

2021 ◽  
Author(s):  
Gaëtan Cliquennois ◽  
Sonja Snacken ◽  
Dirk van Zyl Smit
Keyword(s):  
Human Rights ◽  
Suicide Prevention ◽  
Holistic Approach ◽  
Individual Risk ◽  
Prevention Policy ◽  
Right To Life ◽  
Prevention Policies ◽  
European Court ◽  
State Liability ◽  
The Right

Abstract This paper analyses the shortcomings of European suicide prevention policy in places of detention, a topic that has been neglected in the European legal literature. Four interrelated characteristics of the suicide prevention policies developed by the European Court of Human Rights (ECtHR) are responsible for the failures of these policies. First, the risk-based approach relies on individual risk calculations by national detention authorities to the detriment of environmental factors and a holistic approach. Second, there is an unacknowledged tension in the jurisprudence of the ECtHR between the right to life of detainees and the right to life of potential victims of terrorism and other serious crimes. Third, the jurisprudence on state liability, with its individual risk-based approach, has been translated into highly restrictive death avoidance national practices, which infringe human dignity and reinforce detainees’ willingness to commit suicide. Finally, the right to life does not effectively limit the inherent punitiveness of suicide prevention policies.

The European Court of Human Rights as an Example of Convergence

2007 ◽  
Vol 76 (2-3) ◽  
pp. 305-322 ◽  
Author(s):  
Nina-Louisa Arold
Keyword(s):  
Human Rights ◽  
Field Study ◽  
Empirical Analysis ◽  
Legal Culture ◽  
Voting Behaviour ◽  
European Court ◽  
Convergence And Divergence

AbstractThe article summarizes the main findings of a study on the legal culture of the European Court of Human Rights (ECtHR). 1 Special attention is given to the question of how individual legal, vocational, historical and other experiences of the judges have an impact on their voting behaviour. Starting from the debate on convergence and divergence of law, it is legitimate to expect that these formative differences in individual experiences of the judges should matter. Surprisingly, the results gained through interviews, field study and empirical analysis of judgments show that their diversities in background are no hinder to convergence inside the Court. Especially, it is not the mentalités of the judges that create problems to the coming together of differences. Instead, it is in fact the mentalités of judges that promote convergence through pushing specific ideals and fostering homogeneity.

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