5 Judgments and Efficacy

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
Foreign Relations ◽  
The Other ◽  
European Convention ◽  
Human Rights Violations ◽  
Council Of Europe ◽  
Daily News ◽  
European Court ◽  
General Rules ◽  
The One

This chapter evaluates the efficacy of the European Court of Human Rights (ECtHR). On the one hand, the European Convention on Human Rights (ECHR) system has had an amazing success in building up a constitutional order in Europe defining common values. Significant changes in the laws of all Member States were made; individual human rights violations were effectively remedied. On the other hand, Europe is far from being a human rights paradise. Even an average observer of daily news cannot avoid having the impression that in some States even the most basic human rights are not effectively guaranteed and that some so-called ‘democracies’ hide their disdain for individual rights behind lip services and promises to abide by the Convention, but in reality use membership in the Council of Europe only as a tool in foreign relations. The chapter then identifies the roles played by the Committee of Ministers, NGOs, and the Court in executing judgments on human rights violations. Article 46 para 1 ECHR obliges the parties to abide by the final judgment of the Court in any case to which they are parties. In line with the general rules of State responsibility, the Court interprets the obligations arising out of Convention violations as threefold: ‘to cease the breach, to make reparation for it and ensure non-repetition of similar violations in the future’.

Divergent Trends in Legal Recognition of Religious Entities in Europe: The Cases of Slovenia and Hungary

2015 ◽  
Vol 8 (2) ◽  
pp. 286-304
Author(s):  
Miran Lavrič ◽  
Sergej Flere
Keyword(s):  
Human Rights ◽  
Religious Pluralism ◽  
The Other ◽  
European Countries ◽  
European Convention ◽  
The Political ◽  
Council Of Europe ◽  
Legal Recognition ◽  
Political Situation ◽  
European Court

AbstractReligious dynamics in Europe, especially regarding religious pluralism, are largely affected by the characteristics of legal recognition of religious entities in individual countries. The implementation of the European Convention of Human Rights by the European Court of Human Rights clearly points to democratic pluralism as the essential principle in treating religious entities by the state. On the other hand, the situation in European countries is very complex and certain tendencies opposite to the European Convention of Human Rights directions, particularly in terms of privileging of traditional entities, are still deeply entrenched. Recent changes in Slovenia, where two essentially parody religions have been registered, and in Hungary, where registration and recognition of previously registered churches have been annulled, are considered. It is argued that the implementation of the liberal course set by the Council of Europe is (still) largely dependent on the political situation in individual countries.

scholarly journals Procedure for applying to the European Court of Human Rights

2021 ◽  
pp. 37-45
Author(s):  
Alexandru Sosna ◽  
◽  
Vadim Colceanov ◽  
Keyword(s):  
Human Rights ◽  
The Other ◽  
European Convention ◽  
Reasonable Time ◽  
Human Rights Protection ◽  
Republic Of Moldova ◽  
Rights Protection ◽  
European Court ◽  
The Republic ◽  
The One

In this article, the authors explore the theoretical and practical aspects of the procedure for addressing the European Court of Human Rights. Many citizens of the Republic of Moldova apply to the European Court of Human Rights for the protection of violated rights. For several years and as a result of various factors, the Court has been overwhelmed by the number of individual applications. However, the vast majority of these applications (over 95%) are rejected, without being examined on the merits, because they did not meet one of the admissibility criteria provided by the European Convention on Human Rights. This situation creates a double frustration. On the one hand, having the obligation to respond to each request, the Court does not have the opportunity to focus, within a reasonable time, on cases that require a substantive examination, and this is of no real use to litigants. On the other hand, the actions of tens of thousands of applicants are rejected without appeal, often after years of waiting. The proposals of the authors, who must increase the guarantees of human rights protection, are very important.

scholarly journals Gender Equality Principle: Application in ECtHR’s Practice

2021 ◽  
Vol 9 (1) ◽  
pp. 83-95
Author(s):  
Svitlana Karvatska ◽  
Ivan Toronchuk ◽  
Alyona Manyk
Keyword(s):  
Human Rights ◽  
Gender Equality ◽  
Gender Discrimination ◽  
European Convention ◽  
Council Of Europe ◽  
Distinctive Features ◽  
Judicial Practice ◽  
European Court ◽  
Margin Of Appreciation ◽  
The One

The article is devoted to analyzing the decisions of the European Court of Human Rights (ECtHR), which concerned the issue of gender equality, distinctive features of the application of a gender equality principle by the ECtHR. Based on a study of ECtHR's rulings, it is noted that the concept of gender equality as one of the objectives of the Council of Europe has been applied by the ECtHR since the early 1990s. The ECtHR's approaches to dealing with gender equality cases are characterized both through the prism of non-discrimination (applying Article 14 of the European Convention on Human Rights in combination with other articles) and through complaints about violations of rights guaranteed by other ECHR articles. The analysis shows that, on the one hand, ECtHR emphasizes that gender equality is considered as one of the critical principles of the ECHR. However, on the other hand, significant difficulty in gender discrimination cases is the Court's possibility to refuse to analyze the case in the context of Article 14th content of the Convention. The possibility of giving the Court to states a vast margin of appreciation in determining domestic policies on gender equality is ambiguously manifested in judicial practice. The conclusion states that the need to ensure gender equality can be considered by the ECtHR as a legitimate aim and can serve as an appropriate basis for interfering with the exercise of certain rights and freedoms enshrined in the Convention.

Rectitude Rights and Legitimacy: Reassessing and Reforming the Privilege against Self-Incrimination in English Law

1997 ◽  
Vol 31 (1-3) ◽  
pp. 24-73
Author(s):  
Ian H. Dennis
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
The Other ◽  
European Convention ◽  
European Court ◽  
Formal Restriction ◽  
Critical Phase ◽  
English Law ◽  
The One ◽  
The Right

The privilege against self-incrimination has always attracted controversy. Legal historians continue to disagree over its origins, and its justification has been keenly debated ever since Bentham's famous attack on it as a misguided concession to the guilty. This debate has recently entered a new and critical phase as the result of diametrically opposed developments by, on the one hand, the courts and legislature in England and, on the other, by the institutions of the European Convention of Human Rights. These developments can be summarised by saying that whereas the trend in England has been towards attrition and formal restriction of the privilege, the European Court of Human Rights has been reconstituting the privilege as an implicit element of the right to a fair trial under article 6.1 of the European Convention. The European decisions have the potential for significant expansion of the privilege, and they call into question the validity of several of the English developments.

scholarly journals Psychiatric Commitment: Sixty Years Under the Scrutiny of the European Court of Human Rights

2021 ◽  
Vol 12 ◽  
Author(s):  
Gérard Niveau ◽  
Camille Jantzi ◽  
Tony Godet
Keyword(s):  
Human Rights ◽  
International Institutions ◽  
Case Law ◽  
Psychiatric Practice ◽  
European Convention ◽  
Major Influence ◽  
Direct Effects ◽  
Council Of Europe ◽  
European Court ◽  
The One

Background and Aims: In the field of mental health, the fundamental right to liberty is a point of tension between the practice of psychiatric commitment on the one hand and the universal concept of human rights on the other. The European Court of Human Rights (ECtHR) is a very specific means of safeguarding human rights because it allows an individual to not only assert their rights but also compel a state to bring its legislation into conformity with the principles of the European Convention on Human Rights. The aim of this study was to gather the case-law of the ECtHR on psychiatric commitment over the last 60 years and to determine how this case-law has affected national legislation and therefore psychiatric practice.Methods: Jurisprudence data were collected from the HUDOC ECtHR database, and the direct effects of the ECtHR judgements on the legislations of the countries concerned were collected from the HUDOC EXEC database of the Council of Europe. The case-law of the Court included 118 judgements and 56 decisions and concerned 31 of the 45 countries that have ratified the Convention.Results: This study therefore showed a direct effect of the Court's case-law on the legislation on psychiatric commitment in the various countries that have ratified the Convention. It was also possible to detect an indirect effect of this case-law through the directives of international institutions such as the directives of the Committee of Ministers of the Council of Europe concerning respect for people with mental disorders.Conclusions: The ECtHR case-law therefore has a major influence on the psychiatric practice in all Council of Europe countries.

To Discriminate in Order to Fight Discrimination

2017 ◽  
Author(s):  
Dolores Morondo Taramundi
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
The Other ◽  
The United Kingdom ◽  
European Court ◽  
Main Technique ◽  
Antidiscrimination Law ◽  
The One ◽  
Paradoxical Results ◽  
Conflicts Of Rights

This chapter analyses arguments regarding conflicts of rights in the field of antidiscrimination law, which is a troublesome and less studied area of the growing literature on conflicts of rights. Through discussion of Ladele and McFarlane v. The United Kingdom, a case before the European Court of Human Rights, the chapter examines how the construction of this kind of controversy in terms of ‘competing rights’ or ‘conflicts of rights’ seems to produce paradoxical results. Assessment of these apparent difficulties leads the discussion in two different directions. On the one hand, some troubles come to light regarding the use of the conflict of rights frame itself in the field of antidiscrimination law, particularly in relation to the main technique (‘balancing of rights’) to solve them. On the other hand, some serious consequences of the conflict of rights frame on the development of the antidiscrimination theory of the ECtHR are unearthed.

Council of Europe

2018 ◽  
Author(s):  
Oliver Lewis
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Social Rights ◽  
Council Of Europe ◽  
Persons With Disabilities ◽  
European Committee ◽  
European Court ◽  
Human Rights Treaties ◽  
Fundamental Freedoms ◽  
Two Bodies

This chapter presents an overview of the adjudicative bodies of the Council of Europe—namely, the European Court of Human Rights (established by the European Convention on Human Rights and Fundamental Freedoms (ECHR)) and the European Committee of Social Rights—and outlines their mandates with regard to integrating UN human rights treaties. It analyses how these two bodies have cited the Convention on the Rights of Persons with Disabilities (CRPD). The dataset was forty-five cases dealt with by the Court and two collective complaints decided by the Committee that cite the CRPD up to 2016. Notwithstanding the relatively small size of the dataset, the conclusions are that the Council of Europe system has yet to engage seriously in the CRPD’s jurisprudential opportunities. The reasons for this cannot be ascertained from a desk-based methodology, and further research is required.

Domestic Investigation and Prosecution of Atrocities Committed during Military Operations: The Impact of Judgments of the European Court of Human Rights

2013 ◽  
Vol 46 (3) ◽  
pp. 369-404
Author(s):  
Silvia Borelli
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Full Potential ◽  
Remedial Measures ◽  
Legal Systems ◽  
Military Operations ◽  
Council Of Europe ◽  
Proactive Approach ◽  
European Court ◽  
The Impact

The undeniable impact of the European Convention on Human Rights on the legal systems – and the wider society – of Member States of the Council of Europe would not have been possible without its unique monitoring system, centred around the European Court of Human Rights and the Committee of Ministers of the Council of Europe. The present article assesses the extent to which the European Court's judgments that have found violations of the procedural obligations under Articles 2 and 3 of the Convention to investigate unlawful killings, disappearances, acts of torture or other ill-treatment have, in fact, led to an improvement in the capability of the domestic legal systems of states parties to ensure accountability for such abuses. On the basis of four case studies, it is concluded that the European Court's judgments, coupled with the supervisory powers of the Committee of Ministers, have the potential to make a very great impact on the capability of domestic legal systems to deal with gross violations of fundamental human rights, and have led to clear and positive changes within the domestic legal systems of respondent states. Nevertheless, this is by no means always the case, and it is suggested that, in order for the Convention system to achieve its full potential in the most politically charged cases, the European Court should adopt a more proactive approach to its remedial powers by ordering specific remedial measures, to include in particular the opening or reopening of investigations.

scholarly journals 4 The Court and Domestic and International Legal Systems

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Vienna Convention ◽  
Legal Systems ◽  
Member States ◽  
Supreme Courts ◽  
European Court ◽  
Set Up ◽  
The One ◽  
The Relationship

This chapter assesses the relationship between the European Court of Human Rights (ECtHR) and domestic and international legal systems. With the ratification of the European Convention on Human Rights (ECHR), the Member States accept to be bound by final judgments of the Court and to implement them in their domestic legal systems. The Convention system does not make any difference as to the set-up of the national legal system or to the hierarchical position accorded to the Convention in national law. This is in line with a purist international law perspective, summarized in Article 27 of the Vienna Convention of the Law on Treaties: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ However, from the constitutional law perspective of the Member States, the situation is much more multi-faceted and complex. While it is generally accepted that the Court's judgments are binding and have to be implemented, the relationship between the Convention and the national constitutions as well as between their respective guardians, the Court on the one hand and national constitutional or supreme courts on the other hand, is not seen as one-way and hierarchical, but nuanced and differentiated. Implementation of judgments is accepted to be a duty, but not necessarily without exceptions. The chapter then considers the relationship between the ECtHR and the European Court of Justice (ECJ).

The Impact of the Pan-European General Principles of Good Administration on Swiss Law

2020 ◽  
pp. 353-374
Author(s):  
Nadja Braun Binder ◽  
Ardita Driza Maurer
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Administrative Law ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Swiss Law ◽  
Written Law ◽  
The Impact

This chapter is dedicated to exploring the impact on Swiss administrative law of the pan-European general principles of good administration developed within the framework of the Council of Europe (CoE). The chapter claims that the standards stemming from the European Convention on Human Rights and the case law of the European Court of Human Rights have been adopted in an exemplary way by Swiss authorities. The influence was especially strong in the 1980s and 1990s. The same cannot be said regarding other documents of the CoE, whose impact remains disparate because many aspects of the pan-European general principles of good administration were already part of the national written law. The chapter concludes that despite the exemplary integration of CoE instruments heated debates on the content of these instruments are not excluded from Switzerland.

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