THE DIVERGING APPROACHES OF THE EUROPEAN COURT OF HUMAN RIGHTS IN THE CASES OF NADA AND AL-DULIMI

2015 ◽  
Vol 64 (2) ◽  
pp. 445-460 ◽  
Author(s):  
Stephan Hollenberg
Keyword(s):  
Human Rights ◽  
International Law ◽  
Present Article ◽  
European Court ◽  
Conflicting Interests ◽  
Grand Chamber

AbstractThe UN Security Council's practice of targeted sanctions has resulted in serious limitations on the enjoyment of targeted individuals' human rights. The European Court of Human Rights pronounced on this issue in two instances. In the cases of Nada (Grand Chamber judgment) and al-Dulimi (Chamber judgment) the Court was asked to evaluate the lawfulness of the domestic implementation of sanction measures against the ECHR. Surprisingly, each Chamber opted for a different solution. The present article will discuss these solutions and evaluate them within the broader framework of international law, the Court's jurisprudence, and the conflicting interests involved.

The J.K. DecalogueA Paradigm Shift in Dealing with Asylum Cases in Strasbourg?

2021 ◽  
pp. 85-103
Author(s):  
Ledi Bianku
Keyword(s):  
Human Rights ◽  
International Law ◽  
Paradigm Shift ◽  
Traditional Approach ◽  
New Approach ◽  
Refugee Law ◽  
European Court ◽  
The Absolute ◽  
International Refugee Law ◽  
Grand Chamber

This chapter addresses the approach the European Court of Human Rights (ECHR) takes in asylum cases from the perspective of international refugee law doctrines. First, the chapter discusses the traditional approach in dealing with asylum cases in Strasbourg, i.e. starting the analysis from the basic promise of the rights of states to control the entry, residence, and expulsion of aliens. The Court considers that this approach is based on well-established international law and the chapter summarises the international law voices that inspire this approach, which has been taken by the Court for almost thirty years. The second part of the chapter analyses the Grand Chamber judgment in the case of J.K. v Sweden and the attempt by the Court, through this judgment, to elaborate general principles applicable in asylum cases in Strasbourg. The analysis of the hierarchy of these ten general principles by the Court in the J.K. judgment stems from the question of whether the Court is modifying its traditional approach in dealing with asylum cases and moving towards a new approach which is inspired by another line of thinking in international law. It also seems that with this new approach the Court gives precedence in its analysis of asylum cases to the absolute character of rights guaranteed by Article 3 of the ECHR. This would make the Court’s analysis of asylum cases more coherent with other cases when Article 3 rights are at stake.

Marguš v. Croatia (Eur. Ct. H.R.)

2014 ◽  
Vol 53 (5) ◽  
pp. 751-809 ◽  
Author(s):  
Elizabeth Stubbins Bates
Keyword(s):  
Human Rights ◽  
International Law ◽  
War Crimes ◽  
Fair Trial ◽  
European Convention ◽  
European Court ◽  
Grand Chamber ◽  
The Right

On May 27, 2014, the Grand Chamber of the European Court of Human Rights rendered its judgment in the case of Marguš v. Croatia. The applicant, who had served in the Croatian Army, was convicted of war crimes in 2007, following an earlier decision in 1997 to grant him amnesty for these crimes. A majority of the Grand Chamber drew on Articles 2 and 3 of the European Convention of Human Rights (the Convention) and general international law to argue that Article 4 of Protocol No. 7 of the Convention (the right not to be tried or punished twice) was inapplicable in these circumstances and that the applicant’s claim on this point was inadmissible. The Grand Chamber also ruled that there had been no violation of Article 6 of the Convention (the right to a fair trial).

Comparative Views on the Right to Vote in International Law

2018 ◽  
Author(s):  
Shai Dothan
Keyword(s):  
Human Rights ◽  
International Law ◽  
National Courts ◽  
European Court ◽  
Right To Vote ◽  
The Right ◽  
Democratic Elections ◽  
The Way

There is a consensus about the existence of an international right to vote in democratic elections. Yet states disagree about the limits of this right when it comes to the case of prisoners’ disenfranchisement. Some states allow all prisoners to vote, some disenfranchise all prisoners, and others allow only some prisoners to vote. This chapter argues that national courts view the international right to vote in three fundamentally different ways: some view it as an inalienable right that cannot be taken away, some view it merely as a privilege that doesn’t belong to the citizens, and others view it as a revocable right that can be taken away under certain conditions. The differences in the way states conceive the right to vote imply that attempts by the European Court of Human Rights to follow the policies of the majority of European states by using the Emerging Consensus doctrine are problematic.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

The European Convention on Human Rights and International Law

2007 ◽  
Vol 56 (2) ◽  
pp. 217-231 ◽  
Author(s):  
Luzius Wildhaber
Keyword(s):  
Human Rights ◽  
International Law ◽  
Comparative Law ◽  
Case Law ◽  
European Convention ◽  
Mutual Relationship ◽  
Public International Law ◽  
European Court ◽  
Special Character ◽  
British Institute

AbstractThis article is an expanded and footnoted version of the lectur given at the British Institute of International and Comparative Law on Tuesday 21 March 2006, entitled ‘International Law in the European Court of Human Rights’.The article begins with some comparative comments on the application of the European Convention on Human Rights in monistic and dualistic systems It then discusses in detail the European Court's case law which confirms that the Convention, despite its special character as a human rights treaty, is indeed part of public international law. It concludes that the Convention and international law find themselves in a kind of interactive mutual relationship. checking and buildine on each other.

Religious Pluralism and State- Centric Legal Spaces in Europe

2021 ◽  
Vol 18 (1) ◽  
pp. 33-54
Author(s):  
Kyriaki Topidi
Keyword(s):  
Human Rights ◽  
Present Article ◽  
Religious Pluralism ◽  
Legal Pluralism ◽  
Case Law ◽  
Legal Systems ◽  
European Court ◽  
Starting Point

Multiculturalism is continuously and relentlessly put to the test in the so- called West. The question as to whether religious or custom- based legal orders can or should be tolerated by liberal and democratic states is, however, by no means a new challenge. The present article uses as its starting point the case of religious legal pluralism in Greece, as exposed in recent European Court of Human Rights (ECtHR) case- law, in an attempt to explore the gaps and implications in the officially limited use of sharia in Western legal systems. More specifically, the discussion is linked to the findings of the ECtHR on the occasion of the recent Molla Sali v. Greece case to highlight and question how sharia has been evolving in the European legal landscape.

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.

Fragmentation of International Law Revisited: Insights, Good Practices, and Lessons to be Learned from the Case Law of the European Court of Human Rights

2015 ◽  
Vol 28 (4) ◽  
pp. 863-885 ◽  
Author(s):  
ADAMANTIA RACHOVITSA
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
European Convention ◽  
Vienna Convention ◽  
International Courts ◽  
Good Practices ◽  
European Court ◽  
Interpretation Process ◽  
Fragmentation Of International Law

AbstractThis article discusses the contribution of the European Court of Human Rights to mitigating difficulties arising from the fragmentation of international law. It argues that the Court's case law provides insights and good practices to be followed. First, the article furnishes evidence that the Court has developed an autonomous and distinct interpretative principle to construe the European Convention on Human Rights by taking other norms of international law into account. Second, it offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. It analyses the Court's approach to subtle contextual differences between similar or identical international norms and its position towards the requirements of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It concludes that international courts are developing innovative interpretative practices, which may not be strictly based on the letter of the VCLT.

Battles Over Symbols: The “Religion” of the Minority Versus the “Culture” of the Majority

2013 ◽  
Vol 28 (1) ◽  
pp. 67-104 ◽  
Author(s):  
Lori G. Beaman
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Religious Symbol ◽  
Anti Semitism ◽  
European Tradition ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Grand Chamber ◽  
The Right

Moreover, with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State.A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality.In March, 2011, after five years of working its way through various levels of national and European courts, the Grand Chamber of the European Court of Human Rights decided that a crucifix hanging at the front of a classroom did not violate the right to religious freedom under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Specifically, Ms. Soile Lautsi had complained that the presence of the crucifix violated her and her children's right to religious freedom and that its presence amounted to an enforced religious regime. The Grand Chamber, reversing the lower Chamber's decision, held that while admittedly a religious symbol, the crucifix also represented the cultural heritage of Italians.

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