Diplomats in Robes: Judicial Career Paths and Free Speech Decision-Making at the European Court of Human Rights

2021 ◽  
pp. 1-32
Author(s):  
Erik Bleich ◽  
Thomas M. Keck ◽  
Neha Sharma ◽  
Claire Sigsworth
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Speech Acts ◽  
Judicial Behavior ◽  
Free Expression ◽  
Individual Level ◽  
Legal Standards ◽  
High Courts ◽  
European Court ◽  
Prior Service

A substantial body of scholarly research has examined decision-making in domestic high courts, but international judicial behavior remains relatively poorly understood. Building on research that uses judges’ career background as a proxy for their motivations at the European Court of Human Rights, we deploy a new measure of judicial career backgrounds and a new dataset of the Court’s free expression decisions. We combine quantitative analysis of judicial votes with qualitative analysis of judges’ signed dissenting opinions to advance existing understandings of the Court’s decision-making. We show that former diplomats are less likely to support contested free expression claims than their colleagues with different career backgrounds. In their published opinions, former diplomats are more likely to voice concerns about the objectionable nature of particular speech acts and to call for broad judicial deference to state restrictions on such speech. By contrast, judges with prior service in domestic government roles, as well as judges with career backgrounds outside of government, exhibit greater tolerance of objectionable speech, greater willingness to impose European-wide standards, and more frequent invocation of extra-European legal standards. Our findings contribute to broader debates about the influence of individual-level preferences on judicial behavior in international courts.

The Impartiality of International Judges: Evidence from the European Court of Human Rights

2008 ◽  
Vol 102 (4) ◽  
pp. 417-433 ◽  
Author(s):  
ERIK VOETEN
Keyword(s):  
Human Rights ◽  
National Government ◽  
Judicial Behavior ◽  
Policy Preferences ◽  
Judicial Power ◽  
Government Behavior ◽  
Member States ◽  
European Court ◽  
International Court ◽  
Bright Side

Can international judges be relied upon to resolve disputes impartially? If not, what are the sources of their biases? Answers to these questions are critically important for the functioning of an emerging international judiciary, yet we know remarkably little about international judicial behavior. An analysis of a new dataset of dissents in the European Court of Human Rights (ECtHR) yields a mixed set of answers. On the bright side, there is no evidence that judges systematically employ cultural or geopolitical biases in their rulings. There is some evidence that career insecurities make judges more likely to favor their national government when it is a party to a dispute. Most strongly, the evidence suggests that international judges are policy seekers. Judges vary in their inclination to defer to member states in the implementation of human rights. Moreover, judges from former socialist countries are more likely to find violations against their own government and against other former socialist governments, suggesting that they are motivated by rectifying a particular set of injustices. I conclude that the overall picture is mostly positive for the possibility of impartial review of government behavior by judges on an international court. Like judges on domestic review courts, ECtHR judges are politically motivated actors in the sense that they have policy preferences on how to best apply abstract human rights in concrete cases, not in the sense that they are using their judicial power to settle geopolitical scores.

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 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 CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, PROTOCOL TO THE CONVENTION AND THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS AS A SOURCES OF SUFFRAGE IN UKRAINE

2020 ◽  
Keyword(s):  
Human Rights ◽  
Political Development ◽  
Electoral System ◽  
Case Law ◽  
The State ◽  
Free Expression ◽  
European Court ◽  
Legal Nature ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The article is devoted to the study of such sources of electoral law in Ukraine as the Convention for the Protection of Human Rights and Fundamental Freedoms, the first Protocol to the Convention and the case-law of the European Court of Human Rights. The legal nature of these international sources of suffrage in Ukraine is considered. Attention is drawn to the peculiarities of the wording of the right to free election in Article 3 the first Protocol to the Convention. The peculiarities of the application of the above article by the European Court of Human Rights are disclosed. The importance the case-law of the European Court of Human Rights as a source of suffrage in Ukraine is emphasized. This assertion is justified by the fact that the rules of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols are of a general and abstract nature and are interpreted and filled with real meaning in judgments of the European Court of Human Rights, which are of precedent nature. A number of legal positions of the European Court of Human Rights concerning the obligation of the state to organize and hold democratic elections, enshrined in the specific decisions of this international judicial institution, have been analyzed. In the article were covered such legal positions as: the possibility of limiting the suffrage of citizens, provided that such conditions do not interfere with the free expression of the people's opinion on the election of the legislative body; evaluation of the electoral legislation in the light of the political development of the country, taking into account national characteristics; wide discretion of the state in the choice of the electoral system, which will ensure the free expression of the opinion of the people, etc. There are a number of unresolved issues regarding the application of the case-law of the European Court of Human Rights in judicial and administrative practice in Ukraine, one of which is the possible conflict between the case-law of the Court and the rules of Ukrainian law. It is proposed to resolve this conflict at the legislative level. The conclusions focus on the peculiarities of the legal nature of these sources of suffrage in Ukraine. KEY WORDS: sources of suffrage, Convention for the Protection of Human Rights and Fundamental Freedoms, case-law of the European Court of Human Rights, right to free elections.

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. 

scholarly journals El diálogo entre el Tribunal Europeo de Derechos Humanos y los tribunales constitucionales en la construcción de un orden público europeo

2012 ◽  
pp. 183 ◽  
Author(s):  
Javier García Roca
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Constitutional Courts ◽  
Legal Doctrine ◽  
Derechos Humanos ◽  
High Courts ◽  
European Court ◽  
El Sistema ◽  
Constitutional Pluralism

Asistimos a un proceso de influencia recíproca sobre derechos entre altos tribunales. Distintas jurisdicciones —ordinaria, constitucional, convencional y de la Unión— concurren al servicio de la integración europea mediante la garantía efectiva de unos derechos comunes y vienen obligadas a elaborar interpretaciones compatibles. Los derechos fundamentales son un ingrediente de un orden público democrático y el CEDH opera como un instrumento constitucional al servicio de ese orden. La idea de diálogo judicial es un instrumento flexible y ambiguo, y, precisamente por ello, muy útil para organizar un trabajo en red en este escenario de pluralismo constitucional. Si bien no es claro qué quiere decirse con «diálogo», puede que de esta ambigüedad sea mejor no salir dado el amplio círculo de los destinatarios. Los tribunales constitucionales deben actuar como interlocutores del TEDH y, al tiempo, como mediadores, divulgando la jurisprudencia europea y haciéndola compatible con las jurisprudencias constitucionales mediante una interpretación conforme. Sería muy conveniente acomodar los parámetros constitucionales de derechos, mediante su reforma, al mínimo que entraña el sistema del Convenio. Debemos explicar con mayor profundidad las diversas relaciones que se engloban bajo la inclusiva denominación de diálogo.We are witnessing a process of influence and cross-fertilization in human rights between high courts. Several jurisdictions —domestic, constitutional, European Court and Court of Justice— cooperate in European integration in order to achieve collective enforcement of rights and therefore compatible interpretationsmust be constructed. Fundamental rights are an ingredient of a European and democratic public order, and the European Convention on Human Rights must work as a constitutional instrument of this order. The idea of judicial dialogue is such a flexible and ambiguous device that it becomes very useful for organizing a network in this scenario of constitutional pluralism. Nevertheless it is not at all clear what the expression «dialogue » means, however it is probably better not to go very much into detail because of the wide number of member States which have to understand it. Constitutional Courts should act as partners of the European Court of Human Rights and also as mediators, spreading European legal doctrine and making it compatible with their own constitutional doctrines by means of an interpretation secundum conventionem. It would be convenient to reform constitutional parameters in order to harmonize their internal standards with the system of the Convention. But we should go further and explain in detail the different relationships which are included under the word «dialogue».

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