scholarly journals Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the European Convention on Human Rights

2011 ◽  
Vol 12 (10) ◽  
pp. 1764-1785 ◽  
Author(s):  
Alan Greene
Keyword(s):  
Human Rights ◽  
National Security ◽  
The State ◽  
European Convention ◽  
State Of Emergency ◽  
Liberal Democratic ◽  
Imminent Danger ◽  
European Court ◽  
Tight Rope ◽  
Legal Document

The European Convention of Human Rights (ECHR) is as much a political as it is a legal document. The European Court of Human Rights (ECtHR) constantly walks the delicate tight rope between vindicating human rights and respecting the sovereignty of contracting states. This balancing act is particularly sensitive when a situation of “exceptional and imminent danger” exists. In such instances of national security the state may need to act in a manner beyond the parameters of normalcy in order to neutralize the threat and protect both itself and its citizens. Article 15 of the ECHR therefore allows states to derogate from its obligations under the convention when a state of emergency is declared. On foot of a notice of derogation, a state has more discretion and flexibility to act accordingly to respond to a threat without being constrained by its obligations under the treaty. However, it is also in these conditions that human rights are at their most vulnerable as the state's response may encroach severely on individuals' rights and the liberal-democratic order of the state.

scholarly journals Romania: derogation from the European Convention on Human Rights – freedom of expression during public emergency

2021 ◽  
pp. 39-54
Author(s):  
Mónika Márton
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
The State ◽  
Fundamental Rights ◽  
European Convention ◽  
State Of Emergency ◽  
European Court ◽  
Public Emergency ◽  
Fundamental Rights And Freedoms

A pandemic can provide a textbook example for the restrictions of fundamental rights and freedoms. Romania has decided to derogate from the application of the European Convention on Human Rights during the state of emergency caused by the COVID-19 pandemic. The questions discussed in this paper are whether the derogation of Romania fulfils the criteria established by the case-law of the European Court of Human Rights. If the answer is affirmative: does it have any effect on the inherent limitations on the freedom of expression as stated in art. 10 of ECHR?

Freedom of Religion in the Workplace

2021 ◽  
pp. 1-21
Author(s):  
Nedim Begović
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
Case Law ◽  
Legal Framework ◽  
The State ◽  
European Convention ◽  
Freedom Of Religion ◽  
European Court

Abstract The article analyses the case law of the European Court of Human Rights on accommodation of Islamic observances in the workplace. The author argues that the Court has not hitherto provided adequate incentives to the states party to the European Convention on Human Rights to accommodate the religious needs of Muslim employees in the workplace. Given this finding, the author proposes that the accommodation of Islam in the workplace should, as a matter of priority, be provided within a national legal framework. In Bosnia and Herzegovina, this could be achieved through an instrument of contracting agreement between the state and the Islamic Community in Bosnia and Herzegovina.

scholarly journals Fault, knowledge and risk within the framework of positive obligations under the European Convention on Human Rights

2020 ◽  
Vol 33 (3) ◽  
pp. 601-620
Author(s):  
Vladislava Stoyanova
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
Main Argument ◽  
European Court ◽  
Normative Considerations

AbstractThe European Court of Human Rights has consistently reiterated that positive obligations under the European Convention on Human Rights arise when state authorities know or ought to have known about the risk of harm. This article attempts to describe and assess the role of state knowledge in the framework of positive obligations, and to situate the Court’s approach to knowledge about risk within an intelligible framework of analysis. The main argument is that the assessment of state knowledge is imbued with normative considerations. The assessment of whether the state ‘ought to have known’ is intertwined with, first, concerns that positive obligations should not impose unreasonable burden on the state and, second, the establishment of causal links between state omissions and harm.

scholarly journals Religious Freedom and the European Court of Human Rights’ Two Margins of Appreciation

2017 ◽  
Vol 12 (2-3) ◽  
pp. 198-209
Author(s):  
Stephanie E. Berry
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
The State ◽  
Complete Picture ◽  
European Convention ◽  
Article 9 ◽  
European Court ◽  
Margin Of Appreciation ◽  
Religious Clothing

Abstract The European Court of Human Rights’ (ECtHR) use of the margin of appreciation (MoA) in cases concerning religious clothing is well-documented. This article paints a more complete picture of the use of the doctrine in cases falling within Article 9 and Article 2, Protocol 1 of the European Convention on Human Rights (echr). The ECtHR’s use of the normative MoA often appears to be superfluous as it does not seem to extend past the Article 9(2) echr, limitations clause. In contrast, the systemic MoA allows almost complete deference to the State, which has the potential to undermine the religious freedom of minorities.

Notstandskontrolle

2019 ◽  
Author(s):  
Felix Weber
Keyword(s):  
Human Rights ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
Level System ◽  
State Of Emergency ◽  
Sovereign State ◽  
Judicial Control ◽  
States Of Emergency ◽  
Multi Level

Between 2015 and 2017, France, Turkey and Ukraine, as member states of the European Convention on Human Rights, declared a state of emergency according to Art. 15 ECHR. The events associated with the suspension of Convention rights show the current significance of the legal standardisation of political and social states of emergency. In the end it is all about the question of who ultimately controls the state of emergency: the sovereign state, the state community with a supranational judicial control, or both in terms of a horizontal overlapping of powers in the European multi-level system? Art. 15 ECHR still leaves unanswered questions to which the Strasbourg organs have responded over the years with a differentiated jurisprudence and with the granting of a certain margin of discretion. The book deals with these issues in the light of ECtHR case law and case studies on France, Turkey and Ukraine.

New Trends in Religious Liberty and the European Court of Human Rights

2010 ◽  
Vol 12 (3) ◽  
pp. 266-279 ◽  
Author(s):  
Ian Leigh
Keyword(s):  
Human Rights ◽  
Religious Education ◽  
Military Service ◽  
Religious Freedom ◽  
Religious Affiliation ◽  
The State ◽  
Religious Liberty ◽  
European Convention ◽  
European Court ◽  
The Right

This article analyses recent trends in the jurisprudence of the European Court of Human Rights concerned with the right to freedom of thought, belief and religion (Article 9, European Convention on Human Rights) and the right of parents to respect by the state for their religious and philosophical views in the education of their children (Article 2, Protocol 1).1 These developments include notable decisions concerned with protection from religious persecution in Georgia, with religious education in Norway and Turkey and with the display of crucifixes in state schools in Italy. It is apparent that the European Convention religious liberty jurisprudence increasingly stresses the role of the state as a neutral protector of religious freedom. For individuals religious freedom is now also recognised to include not only the right to manifest their religious belief but also freedom from having to declare their religious affiliation. As the religious liberty jurisprudence comes of age, other significant developments, for example in relation to conscientious objection to military service, can be anticipated.

scholarly journals Derogation of Human Rights and Freedoms in RNM during the State of Emergency Caused by COVID-19

SEEU Review ◽  
2020 ◽  
Vol 15 (1) ◽  
pp. 24-42
Author(s):  
Abdulla Azizi
Keyword(s):  
Human Rights ◽  
Survey Methods ◽  
The State ◽  
International Standards ◽  
European Convention ◽  
State Of Emergency ◽  
The Republic ◽  
The Government ◽  
Territory Government ◽  
Restrictive Measures

AbstractConsidering that in times of state of emergency or civil emergency (such as the pandemic caused by COVID 19), governments in many countries around the world have restricted human rights and freedoms through legally binding government decrees. These restrictive measures increasingly raise dilemmas about their effect and possible violations by the government of international norms guaranteeing human rights. The paper aims to analyze whether these restrictive measures set out in the decisions of the Government of the Republic of Northern Macedonia (RNM) are in compliance with the derogations allowed under the European Convention on Human Rights and Freedoms (ECHR) and the positive laws in power. In the framework of this paper is analyzed whether these measures have the sole purpose of protecting the health of citizens or not.The work is limited in terms of time (as long as the state of emergency lasted three months) and territory (government decrees with the force of law).Descriptive, historical, analytical, comparative and citizen survey methods are used in this paper.Government decrees have been analyzed in order to assess whether they were prudent, in accordance with international standards and consequences that they have caused to citizens.The conclusions provide data on whether the management of the situation has been appropriate or not and to what extent it has been effective, as well as how much it has been within the international framework and how they have affected the quality of life of citizens.

scholarly journals Analysis of the legal positions of the European Court of Human Rights on the application of the euthanasia procedure

2021 ◽  
pp. 107-112
Author(s):  
O.O. Shafi ◽  
K.V. Lyashenko
Keyword(s):  
Human Rights ◽  
Life Support ◽  
Individual Case ◽  
The State ◽  
Private Life ◽  
Fundamental Rights ◽  
European Convention ◽  
Role Of The State ◽  
European Court ◽  
Artificial Life Support

The article examines the problems of euthanasia and the realization of the human right to suicide with the help of others in the context of the European Convention for the Protection of Human Rights and Fundamental Rights, the case law of the European Court of Human Rights. The authors focused on finding the necessary compromise between protecting the patient's right to life, which is a positive commitment of the state, and protecting the patient's right to respect for private life and individual independence. The main positions of the European Court of Human Rights on the possibility of use in euthanasia and in which cases are analyzed step by step. In each case, it was described under what conditions the applicants had applied to the Court and what the difference was between the cases. It is emphasized what the Court relied on in resolving each individual case. It is stated how the Court interprets the possibility of applying Article 2 of the Convention in a negative light and in what cases and under what conditions the Court considers it necessary to apply the principle of “ratione personae”. It is indicated what is the main difference between active and passive euthanasia, and in which countries any of the forms of termination of life of a sick person is allowed, regulated and clearly regulated. It is noted that the issue of application or discontinuation of treatment was considered taking into account many objective factors that are taken into account in each case. Also, attention is paid to the analysis of the court's position on the importance of the role of the state in matters of termination of life, where countries should be given discretion in deciding on disconnection from artificial life support. Separately, the main risks of legitimizing euthanasia are emphasized, in particular, the authors point to the need to improve and comply with the imperative norms in each country to ensure the fulfillment of the positive responsibilities of each state.

scholarly journals Dopuszczalność opodatkowania odszkodowania uzyskanego od Skarbu Państwa w świetle standardów ochronnych Europejskiej konwencji praw człowieka

2019 ◽  
Vol 115 ◽  
pp. 19-39
Author(s):  
Aleksander Cieśliński
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
Legal Obligations ◽  
European Court ◽  
Margin Of Appreciation ◽  
Commercial Company ◽  
Full Compensation ◽  
Business Entities ◽  
Principle Of Proportionality

ADMISSIBILITY OF TAXATION OF THE COMPENSATION RECEIVED FROM THE STATE TREASURY IN THE LIGHT OF PROTECTIVE STANDARDS OF THE EUROPEAN CONVENTION ON HUMAN RIGHTSThe purpose of this paper is to analyze the legal admissibility of taxing the compensation received by a commercial company from the State Treasury which is responsible for the damage suffered by the company. Such damage may be caused by State officials in the performance of their duties, including the tax authorities. It seems completely obvious that the victim should expect full compensation. Unfortunately, such sums are classified by the Polish tax law as any other income received by the tax payer and no exception is provided, which results in an actual reduction of its value.However, it may raise serious doubts if one takes into account legal obligations under the European Convention on Human Rights and the well developed case law of the European Court of Human Rights. Even though the Convention is usually not considered to be a legal act that could protect commercial interests of business entities, one should not forget about its very important Article 1 of Protocol 1, providing protection of property also for legal persons. In this particular case, it is not the amount of tax collected that should be seen as the property that has been taken away, as under this provision domestic authorities are entitled to enforce such laws as they deem necessary to control the use of property to secure the payment of taxes. What makes it so special is this context of compensation and that is why an evaluation of the interpretation of the term “possessions” and the appropriate understanding of the essence of the taxpayer’s right is one the major topics of this paper. The biggest challenge, however, is related to the margin of appreciation left to the Contracting Parties as to the measures that might be undertaken for the sake of the abovementioned purpose, especially seeing as in the area of taxation the Court seems to be particularly tolerant. Therefore, special emphasis is put on the principle of proportionality and its meaning for the analyzed case.

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