THE COURTS AND THE ECHR: A PRINCIPLED APPROACH TO THE STRASBOURG JURISPRUDENCE

2013 ◽  
Vol 72 (2) ◽  
pp. 289-300 ◽  
Author(s):  
EIRIK BJORGE
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Case Law ◽  
European Convention ◽  
National Courts ◽  
The United Kingdom ◽  
European Court ◽  
Judicial Authority ◽  
The Way

AbstractThe way in which the courts in the United Kingdom have interpreted and applied the Ullah principle has created problems in the national application of the European Convention on Human Rights. As is evident particularly in Ambrose, this is partly because Lord Bingham's approach in Ullah has been misunderstood. The article analyses these issues in relation to the notion of binding precedent, finding that judicial authority belongs to principles. The national courts ought not, though that is what the Ullah–Ambrose approach enjoins, to expend their energies seeking to align the case before them with the least dissimilar of the reported cases. Rather they should stand back from the case law of the European Court, and apply the broad principles upon which the jurisprudence is founded.

Overruling ‘the Salduz Doctrine’ in Beuze v Belgium: The ECtHR’s further retreat from the Salduz principles on the right to access to lawyer

2019 ◽  
Vol 10 (4) ◽  
pp. 342-362
Author(s):  
Ergul Celiksoy
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Case Law ◽  
European Convention ◽  
The United Kingdom ◽  
European Court ◽  
Increasing Trend ◽  
Grand Chamber ◽  
The Right ◽  
Right Of Access

In November 2018, the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Beuze v Belgium. Relying on Ibrahim and Others v the United Kingdom, the Grand Chamber held that the Salduz principles require a two-stage test of analysis, and hence, ruled out that systematic statutory restriction of a general and mandatory nature would in itself constitute an automatic violation of Article 6 § 3(c) of the European Convention on Human Rights. However, the Beuze judgment appears to be very controversial, since the Grand Chamber failed to put forward any convincing reason why it departed from previous case law, particularly Dayanan v Turkey and other judgments against Turkey. In their separate opinion, the concurring Judges in Beuze were concerned that the Beuze judgment overruled ‘ Salduz itself and all other cases that have applied the Salduz test’, and thus, ‘actually distorts and changes the Salduz principle and devalues the right that the Court established previously’. This article analyses the Beuze judgment in the light of the Court’s recent jurisprudence in order to examine whether it contradicts and dilutes the principles previously set out. Further, it discusses the implications of the new standards established in Ibrahim and Others and in subsequent cases, particularly Beuze. Particular attention is paid to the questions of how ‘fair’ is the application of overall fairness assessment in every case, how may the Court’s changing direction of approach concerning the right to access to a lawyer affect the increasing trend of recognition thereof, as a rule, by the contracting states, and finally, to what extent the new principles, especially those established in Beuze, comply with Directive 2013/48/EU on the right of access to a lawyer.

Antigone Betrayed? The European Court of Human Rights’ Decisions on Conscientious Objection to Abortion in the Cases of Grimmark v. Sweden and Steen v. Sweden

2020 ◽  
pp. 1-22
Author(s):  
Irene Domenici
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Case Law ◽  
Conscientious Objection ◽  
European Convention ◽  
The United Kingdom ◽  
European Consensus ◽  
Article 9 ◽  
European Court

Abstract The article deals with the recent decisions of the European Court of Human Rights in the cases of two Swedish midwives who claimed a right to conscientious objection to abortion under Article 9 of the European Convention on Human Rights (ECHR). After giving an overview of the relevant previous case-law of the Court, I argue that the decisions of inadmissibility in the midwives’ cases are a step backwards in the promising evolution of the Court’s jurisprudence that began with the judgments in the cases of Eweida and others v. the United Kingdom and Bayatyan v. Armenia. In particular, the Court’s reasoning in Grimmark v. Sweden and Steen v. Sweden failed to take into consideration the existence of a European consensus and the fact that less restrictive alternatives could have reasonably accommodated the conscientious claims of the two applicants.

scholarly journals CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS IN DECISIONS REGARDING NON-COMPLIANCE OF LIFE IMPRISONMENT WITH THE REQUIREMENTS OF ARTICLE 3 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

2020 ◽  
Vol 2020 (1) ◽  
pp. 33-46
Author(s):  
Dzhuzha О. M. ◽  
◽  
Melnychenko І. P. ◽  
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Case Law ◽  
Theory And Practice ◽  
European Convention ◽  
Legal Analysis ◽  
Life Imprisonment ◽  
The United Kingdom ◽  
European Court ◽  
The Right

The article provides a legal analysis of the decisions of the European Court of Human Rights in such cases like “Vinter and Others v. The United Kingdom”, “Hutchinson v. The United Kingdom”. The European Court of Human Rights has established key standards for those sentenced to life imprisonment, compliance with which will ensure that this type of punishment meets the requirements of the Article 3 of the European Convention on Human Rights. Such standards are: 1) sentencing of life imprisonment is not prohibited and does not conflict with the Article 3 or any other article of the Convention. The imposition of “non-reducible” life imprisonment may raise questions of compliance with the requirements of the Article 3 of the Convention; 2) in decision making whether life imprisonment can be considered as “non-reducible”, it is necessary to establish whether the person convicted to life imprisonment had any prospect of release. If national law provides for the possibility of reviewing life imprisonment regarding its mitigating, reducing, terminating or releasing, this is sufficient to satisfy the requirements of th Article 3 of the Convention; 3) for the purposes of the Article 3 of the Convention it is sufficient that life imprisonment is reducible de jure and de facto; 4) European penitentiary policy is currently focusing on the correctional purpose of imprisonment, in particular until the end of long prison sentences; 5) at the very beginning of the sentence a person convicted to life imprisonment has the right to know what he must do to consider the possibility of his release and under what conditions the sentence will be reviewed or also in what order a request to this may be made; 6) if domestic law does not provide for any mechanism or possibility to review life imprisonment, then the non-compliance with the requirements of the Article 3 of the Convention occurs at the time of imposition of life imprisonment and not at a later stage. The importance of such standards separating of the European Court of Human Rights for the national theory and practice of life imprisonment is that these provisions are effective guidelines for determining the prospects of releasing from sentencing in the form life imprisonment. Key words: European Court of Human Rights, Convention for the Protection of Human Rights and Fundamental Freedoms, case law, convict, life imprisonment.

The Future of Religious Freedom

2017 ◽  
Author(s):  
Russell Sandberg
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Religious Freedom ◽  
European Convention ◽  
Human Right ◽  
Relational Approach ◽  
The United Kingdom ◽  
European Court ◽  
First Time ◽  
The Way

This chapter revisits Ladele v. The United Kingdom, contending that the way in which the case was argued at the European Court of Human Rights resulted from a restrictive interpretation of Article 9 of the European Convention on Human Rights by UK courts. It is argued that Ladele and other cases remain best adjudicated and understood as freedom of religion claims, provided that the way in which such claims are argued and adjudicated is improved. This chapter innovates by applying Ayelet Shachar’s call for ‘joint governance’ to the question of religious freedom as a human right for the first time, before suggesting that a relational approach to the relevant cases is required, emphasizing relationships and the power roles within them.

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.

scholarly journals General and Particular Approaches to Implementation of theEuropean Convention on Human Rights

2018 ◽  
Vol 55 ◽  
pp. 248-292
Author(s):  
VLADIMÍRA PEJCHALOVÁ GRÜNWALDOVÁ
Keyword(s):  
Human Rights ◽  
National Level ◽  
Case Law ◽  
European Convention ◽  
Constitutional Courts ◽  
The Czech Republic ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
European Court

AbstractThis article deals with the implementation, at the national level, of European human rights protection standards as enshrined in theEuropean Convention on Human Rights(ECHR) and interpreted by the European Court of Human Rights (ECtHR). It discusses the principles of interpretation of theECHRby the ECtHR, the interaction and mutual dialogue between the ECtHR and national courts, and the approach of the latter to interpretation and application of the case law of the ECtHR. Using the concrete examples of France and the Czech Republic as case studies, it is shown to what extent and how European constitutional courts take into account and apply the letter of the Convention and its interpretation by the ECtHR.

scholarly journals Case-law of the European court of human rights and its value to administrative justice

2019 ◽  
pp. 17-20
Author(s):  
Kristina NIKONOROVA
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Association Agreement ◽  
National Courts ◽  
Leading Role ◽  
European Court ◽  
Starting Point ◽  
Administrative Proceedings ◽  
Administrative Justice

More than twenty years have passed since Ukraine ratified the Convention for the Protection of Human Rights and Fundamental Freedoms in 1997 and recognized the jurisdiction of the European Court of Human Rights (ECtHR). On September 16, 2014 the European Parliament ratified the Association Agreement with the EU synchronously with the Verkhovna Rada of Ukraine. European integration processes have once again begun to play a leading role in the implementation of legal reform in Ukraine aimed at introducing the fundamental provisions of the European Convention on Human Rights (ECHR). First and foremost, the implementation of the rule of law principle based on the case-law of the European Court of Human Rights. In connection with this starting point, the ECtHR's case-law is considered to be a source of law, in particular in administrative proceedings. The main findings are based on the fact that the ECtHR's practice is inextricably linked to the Convention, which the ECtHR interprets in its decisions when dealing with specific cases. Some attention has been paid to the analysis of the provisions of the Law of Ukraine “On the enforcement of decisions and the application of the case-law of the European Court of Human Rights”. Article 17 of this Law provides for the courts using the ECHR and practicing the case-law of the ECtHR's as a source of law. Article 18 of the aforementioned Law defines the order of reference in national courts’ decisions to the ECHR and ECtHR's practice. It is emphasized that according to Article 1 of the above Law, it is necessary to talk about the ECtHR’s practice in a broad aspect, and not only about decisions regarding Ukraine. It is revealed that the main discussion is on the precedental nature of ECtHR’s decisions. As scientists understand the precedental nature of EctHR’s decisions, this question has taken the appropriate place in the study. As a result, it is concluded that the practice of the ECtHR has a precedent form the content of which is based on the legal position of the official interpretation of the provisions of the ECHR. It is in this form that it is appropriate to apply the case-law of the ECtHR's in the area of administrative justice.

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 McGoliath v. David: The European Court of Human Rights Recent “Equality of Arms” Decision

2005 ◽  
Vol 6 (5) ◽  
pp. 895-907
Author(s):  
Monique C. Lillard
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Freedom Of Expression ◽  
European Convention ◽  
Legal Aid ◽  
Small Step ◽  
The United Kingdom ◽  
European Court ◽  
Private Citizens ◽  
Fair Hearing

The European Court of Human Rights has issued a judgment which adds to the developing law of Article 6, Section 1 (right to a fair hearing) of the European Convention on Human Rights (ECHR or “the Convention”) and which sheds light on Article 10 (freedom of expression) and its interaction with the law of defamation. Practically, the decision in Steel and Morris v. the United Kingdom (hereinafter referred to as Steel) is likely to prompt a review of the availability of legal aid for defendants in civil cases in the United Kingdom (“UK”), and may be a small step towards balancing the arms in ad terrorem suits brought by large corporations against private citizens in order to silence public debate.

Climate Change Litigation and the European Court of Human Rights - A Strategic Next Step?

2020 ◽  
Vol 13 (4) ◽  
pp. 331-342
Author(s):  
Therese Karlsson Niska
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
Standard Of Care ◽  
Case Law ◽  
European Convention ◽  
Climate Protection ◽  
National Courts ◽  
European Court ◽  
Senior Women ◽  
Combat Climate Change

Abstract The purpose of the article is to analyse if bringing a case before the European Court of Human Rights (ECtHR) could be impactful in forcing greater climate change action. Part of this analysis is built upon the review of two climate change cases brought before national courts, since they have different outcomes even though both use the fundamental human rights of the European Convention on Human Rights (ECHR) as their legal bases. The cases are the Urgenda Foundation v. Kingdom of the Netherlands and the Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others. The Urgenda case establishes a link between the rights in article 2 and 8 ECHR, and climate change, which creates a positive obligation for a state to protect these rights by acting to combat climate change. The Swiss Climate Protection case, however, is dismissed. Both cases highlight some of the challenges regarding climate change in relation to the fundamental human rights of the ECHR. Judgments by the ECtHR are final, and the formally and informally binding nature of case law from the court is argued to indicate the possibility of a powerful tool in relation to climate change action since 47 states will be affected by the court’s decisions. However, if a case brought before the ECtHR has an unfavourable outcome in relation to forcing greater governmental action in combating climate change, this may also have greater consequences than such an outcome of a domestic challenge, since it will set a minimum standard of care, or completely exclude climate change in relation to human rights. The article argues that it should be considered worth the identified risks to bring a claim before the ECtHR even though it is uncertain if the evolving nature of the charter is ready to establish obligations in relation to climate change, due to the unprecedented and severe threat that climate change constitutes.

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