Reconstructing the European Court of Human Rights’ Article 8 Jurisprudence in Deportation Cases: The Family’s Right and the Public Interest

2020 ◽  
Vol 20 (2) ◽  
pp. 333-360
Author(s):  
Jonathan Collinson
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Case Law ◽  
Best Interests ◽  
European Convention ◽  
The Public ◽  
European Court ◽  
Two Factors ◽  
The One ◽  
The Right

Abstract This article rationalises the case law of the European Court of Human Rights under Article 8 of the European Convention on Human Rights in deportation cases involving children. The Court engages in a balancing exercise between the right to family life of the deportee’s family on the one side, and the public interest in deportation on the other. This article expands on existing case law analysis by suggesting that in deportation cases, the Court considers Article 8 as a form of commonly held right, rather than an individual right held by one member of the family. Furthermore, the balance is argued to be constructed as a relationship between two factors on both sides, rather than of a sole factor on either side as being determinative. This article concludes that the best interests of the child (one of the ‘Üner criteria’) is not adequately reflected in the Court’s deportation decision-making practice.

Algunas reflexiones en torno a la sentencia Negrepontis-Giannisis contra Grecia y la jurisprudencia reciente del Tribunal Europeo de Derechos Humanos en materia de reconocimiento de decisiones judiciales extranjeras

2014 ◽  
pp. 3027-3042
Author(s):  
Juan M. VELÁZQUEZ GARDETA
Keyword(s):  
Human Rights ◽  
Ad Hoc ◽  
Case Law ◽  
European Convention ◽  
The Public ◽  
Derechos Humanos ◽  
European Court ◽  
Scope Of Application ◽  
The Right ◽  
The Eu

LABURPENA: Giza Eskubideen Europako Auzitegiaren Negrepontis-Giannisis vs. Grezia epaiak atzerriko erabakiak libre zirkulatzeko bidea zabaldu du, prozesu zuzen bat izateko eskubidetik etorria, Giza Eskubideen Europako Hitzarmeneko 6.1 artikuluan aitortua. GEEAren jurisprudentzia-lerro horren eboluzioa abiatzen da Wagner eta J.M.W.L. vs. Luxenburgo eta McDonald vs. Frantzia erabakiekin, baina guk aipatzen duguna aurrerapausoa handia da, eskubidea ez zaiolako lotzen beste zuzenbide substantibo bati, eta berezko eskubidea dela planteatzen da. Gainera, ohar aipagarriak egiten dira atzerriko epai judizialak geldiarazteko ordena publikoko salbuespenari buruz, eta haien eragina leuntzen da. Oso interesgarria da EBko arautegien aplikazio-esparrutik ihes egiten duten erabakietan aplikatzeko, non exequaturra desagertzen den ad hoc prozedura gisa, baina eragindako alderdiak hura ez aitortzeko aukera mantentzen da. Ildo horretan, GEEAk Negrepontis-en erabilitako argudioak garrantzi berezikoak dira, kontuan hartuz GEEHk inspiratzen duela Batasuneko Zuzenbidea eta auzitegiak egiten duen artikuluen interpretazioa. RESUMEN: El Tribunal Europeo de Derechos Humanos abre en su sentencia Negrepontis-Giannisis c. Grecia una vía de ampliación de las posibilidades a la libre circulación de decisiones extranjeras como un derecho derivado del derecho a un proceso equitativo reconocido en el art. 6.1 del Convenio Europeo de Derechos Humanos. La evolución de esta línea jurisprudencial del TEDH arranca con las decisiones Wagner y J.M.W.L. c. Luxemburgo y McDonald c. Francia pero en la que nos ocupa se produce un avance considerable porque no se ata el derecho al reconocimiento a otro derecho sustantivo sino que se plantea como un derecho en sí mismo. Además se establecen notables consideraciones en cuanto a la excepción de orden público como freno a la ejecución de decisiones judiciales extranjeras y se suaviza su efecto. Es especialmente interesante para su aplicación en aquellas decisiones que escapan del ámbito de aplicación de los correspondientes reglamentos de la UE donde desaparece el exequátur como procedimiento ad hoc pero se mantiene la posibilidad de oposición al reconocimiento por la parte afectada. En este sentido, los argumentos utilizados por el TEDH en Negrepontis son de especial relevancia, teniendo en cuenta el carácter inspirador del Derecho de la Unión que tiene el CEDH y por ende de la interpretación que dicho tribunal haga de su articulado. ABSTRACT: The European Court of Human Rights in its judgment Negrepontis-Giannisis v. Greece opens the extension of the possibilities for a free movement of foreign decisions as a right derived from the right to a fair hearing of article 6.1 of the European Convention of Human Rights. The evolution of this case law trend of the ECHR begins with decisions Wagner and J.M.W.L. v. Luxembourg and McDonald v. France but in the judgment we are now analyzing a considerable development is made because the right to the recognizition is not linked to other substantive right but it is considered as a right itself. Besides remarkable considerations are established as far as the exception to the public order is concerned as a brake to the execution of foreign judicial decisions and it softens its effect. It is especially interesting for its application in those decisions that go beyond the scope of application of the corresponding regulations of the EU where the exequatur as an ad hoc procedure is missing but it maintains the possibility of opposition to the recognizition by the affected party. In this sense, the reasoning of the ECHR in Negrepontis is of special relevance, taking into account the inspiring character of the European Law forthe ECHR and hence the interpretation of that Tribunal of its articles.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

scholarly journals The right to peaceful enjoyment of property and the security measure of the forfeiture of cash in the jurisprudence of the Serbian Constitutional Court: Certain uncertainty

Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 620-644
Author(s):  
Tamás Korhecz
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Public Interest ◽  
Cash Transfer ◽  
Constitutional Court ◽  
The Public ◽  
Cross Border ◽  
Security Measure ◽  
European Court ◽  
The Right

The right to peaceful enjoyment of property is a first-generation human right, protected by the international and domestic law of the highest rank. This is not an absolute right - the European standards of protecting property rights allow possible interferences prescribed by law. The interferences can be made in the public interest but only under the assumption that the proportionality between the public interest and property rights of individuals at stake is established. Forfeiture of undeclared cash the individuals are transferring across state borders, together with imposing fines for a misdemeanor, represent an interference with individuals' property rights. The EU Member States do not share an identical system of sanctions for this petty offense, but there is a tendency of unification related to the monitoring, registering, and sanctioning of undeclared, cross-border, individual cash transfer. The case-law of the European Court of Human Rights has established rather precise criteria for distinguishing permitted from unpermitted interferences in cases of undeclared cross-border cash transfers. The Serbian Constitutional Court has been faced with several constitutional complaints regarding alleged unconstitutionally of the imposed security measure amounting to the forfeiture of undeclared cash physically transferred across the state borders. The Constitutional Court has ruled inconsistently on the matter. Although it has regularly referred to the European Court of Human Rights' relevant decisions, it fails to be consistent in following the Strasbourg Court's rulings. In this article, the author has suggested that the legal certainty principle requires the Constitutional Court to consistently interpret the constitutional rights and be systematic in following Strasbourg. Only in this way, the Constitutional Court can help regular courts effectively to harmonize the interpretation and application of laws with the constitutional and international human rights standards regarding property rights.

Risk and the European Convention on Human Rights: Towards a New Approach

2009 ◽  
Vol 11 ◽  
pp. 353-375 ◽  
Author(s):  
Christopher Hilson
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Nuclear Radiation ◽  
European Convention ◽  
Access To Justice ◽  
Public Concern ◽  
Initial Attempt ◽  
Liberal Conception ◽  
European Court ◽  
The Right

Abstract The aim of this chapter is to provide an initial attempt at analysis of the place of risk within the case law of the European Court of Human Rights (ECtHR) and, where appropriate, the Commission, focusing on the related issues of public concern and perception of risk and how the ECHR dispute bodies have addressed these. It will argue that, for quite some time, the Court has tended to adopt a particular, liberal conception of risk in which it stresses the right of applicants to be provided with information on risk to enable them to make effective choices. Historically, where public concerns in relation to particular risks are greater than those of scientific experts—nuclear radiation being the prime example in the case law—the Court has adopted a particularly restrictive approach, stressing the need for risk to be ‘imminent’ in order to engage the relevant Convention protections. However, more recently, there have been emerging but as yet still rather undeveloped signs of the Court adopting a more sensitive approach to risk. One possible explanation for this lies in the Court’s growing awareness of and reference to the Aarhus Convention. What we have yet to see—because there has not yet been a recent, post-Aarhus example involving such facts—is a case where no imminent risk is evident. Nevertheless, the chapter concludes that the Court’s old-style approach to public concern in such cases, in which it rode roughshod over rights to judicial review, is out of line with the third, access to justice limb of Aarhus.

Passive Proselytism

2021 ◽  
Vol 9 (2-3) ◽  
pp. 244-269
Author(s):  
Christine Carpenter
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Freedom Of Religion ◽  
Article 9 ◽  
European Court ◽  
The Right

Abstract Article 9 of the European Convention on Human Rights protects the right to freedom of religion and conscience. The language of Article 9(1) has been interpreted by the European Court of Human Rights as including protections for acts of proselytism, when properly committed and respectful of the rights and freedoms of others. This was the view taken in the foundational Article 9 case of the Court, Kokkinakis v. Greece. In the decades since Kokkinakis, however, the view of the Court on proselytism appears to have shifted, in particular in Article 9 cases involving religious garments. This article seeks to determine whether the Court is consistent in its views on proselytism between these religious garment cases and earlier examples of Article 9 case law.

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.

scholarly journals The United Kingdom’s Coronavirus Act, deprivations of liberty, and the right to liberty and security of the person

2020 ◽  
Vol 7 (1) ◽  
Author(s):  
Jonathan Pugh
Keyword(s):  
Public Health ◽  
Human Rights ◽  
European Convention ◽  
Human Rights Law ◽  
Legal Certainty ◽  
The Public ◽  
European Court ◽  
The Uk ◽  
The Right ◽  
Article 5

Abstract In response to the SARS-CoV-2 coronavirus pandemic the UK government has passed the Coronavirus Act 2020 (CA). Among other things, this act extends existing statutory powers to impose restrictions of liberty for public health purposes. The extension of such powers naturally raises concerns about whether their use will be compatible with human rights law. In particular, it is unclear whether their use will fall within the public heath exception to the Article 5 right to liberty and security of the person in the European Convention of Human Rights. In this paper, I outline key features of the CA, and briefly consider how the European Court of Human Rights has interpreted the public health exception to Article 5 rights. This analysis suggests two grounds on which restrictions of liberty enforced some under the CA might be vulnerable to claims of Article 5 rights violations. First, the absence of specified time limits on certain restrictions of liberty means that they may fail the requirement of legal certainty championed by the European Court in its interpretation of the public health exception. Second, the Coronavirus Act’s extension of powers to individuals lacking public health expertise may undermine the extent to which the act will ensure that deprivations of liberty are necessary and proportionate.

scholarly journals (In)formal Migrant Settlements and Right to Respect for a Home

2017 ◽  
Vol 19 (4) ◽  
pp. 335-369
Author(s):  
Lieneke Slingenberg ◽  
Louise Bonneau
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
European Cities ◽  
European Court ◽  
The Right ◽  
Domestic Case

Abstract Across European cities, migrants without access to state facilities, resort to living in ‘makeshift camps’ or squats. These settlements are usually evacuated and demolished by state authorities. Instead of discussing the state’s positive obligation to provide decent housing, this article focusses solely on the state’s negative obligations under the right to respect for a home as laid down in Article 8 of the European Convention of Human Rights (echr). Drawing upon the cases of Calais and Amsterdam, this article scrutinizes domestic case law about evictions from (in)formal migrant settlements and compares that to case law of the European Court of Human Rights (ECtHR). We argue that the ECtHR case law provides a relevant framework that should be used to evaluate the legitimacy of evictions and destructions of (in)formal migrants’ settlements. Despite the fact that applying this framework would not entail a complete ban on evictions, it would provide some welcome (procedural and substantive) protection for migrants.

scholarly journals Unilateral Option Arbitration clauses: An unequivocal choice for arbitration under the ECHR?

2018 ◽  
Vol 25 (1) ◽  
pp. 77-86
Author(s):  
Bas van Zelst
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
European Court ◽  
The Right

Unilateral option arbitration clauses (UAC) are clauses under which the parties bound by it are restricted to bringing proceedings in a particular jurisdiction, while at the same time providing one or more parties the option to elect that a dispute be referred to arbitration. The latter right is unilateral in that it may only be invoked by the beneficiary party or parties that are designated in the UAC. This article submits that the concept of a UAC is compliant with the European Convention on Human Rights (ECHR). More particularly it argues that UACs meet the requirements – developed through the case law of the European Court of Human Rights (ECtHR) – that the waiver of the right to access to an impartial and independent court established by law is agreed upon freely and unequivocally. It is concluded that there is nothing in the ECtHR’s case law to suggest that a UAC conferring the choice for arbitration or litigation only to the beneficiary of the UAC would be contrary to these requirements.

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