Migration and the European Convention on Human Rights

2021 ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Migrant Children ◽  
European Convention ◽  
Council Of Europe ◽  
Systematic Analysis ◽  
Broad Perspective ◽  
Irregular Migrants ◽  
Textual Silence ◽  
The Right

This book investigates where the European Convention on Human Rights (ECHR) as a living instrument stands on migration and rights of migrants. Individual chapters in the volume address how the tension between the textual silence of the Convention concerning migrant rights and the significant number of cases that the ECHR have addressed concerning migration and rights migrants are resolved or left to the discretion of European states. This book offers a comprehensive analysis of cases brought by migrants in different stages of migration covering the right to flee, who is entitled to enter and remain Europe, what treatment is owed to them when they come within the jurisdiction of a Council of Europe member state, not only to those who recently entered Europe, but also to those who have been living in Europe for a longer time. As such, the book evaluates the case law of the ECHR concerning different categories of migrants including asylum seekers, irregular migrants, those who have migrated through domestic lawful routes and those who are currently second- or third-generation migrants in Europe. The broad perspective adopted by the book allows for a systematic analysis of how and to what extent the Convention protects non-refoulement, migrant children, family rights of migrants, status rights of migrants, economic and social rights of migrants, as well as cultural and religious rights of migrants.

Allowing the Right Margin: The European Court of Human Rights and The National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?

2012 ◽  
Vol 14 ◽  
pp. 381-418 ◽  
Author(s):  
Dean Spielmann
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Margin Of Appreciation ◽  
Essential Question ◽  
Domestic Courts ◽  
The Right ◽  
Domestic Law

AbstractThe doctrine of the national margin of appreciation is well established in the case law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute. The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case law. After a brief overview of the doctrine’s origin, the analysis will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree or ‘reverse’ margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No 14, now ratified by all Council of Europe Member States, enshrines in Article 12—at least to some extent—an obligation to apply a margin of appreciation. One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity?

Right to Free Elections: Emerging Guarantees or Two Layers of Protection?

2009 ◽  
Vol 27 (3) ◽  
pp. 361-390 ◽  
Author(s):  
Sergey Golubok
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Soft Law ◽  
The Political ◽  
Council Of Europe ◽  
Venice Commission ◽  
The Right ◽  
Further Development

The article analyses the drafting history and background of the ‘political clause’ of the European Convention on Human Rights – Article 3 of Protocol No. 1 which provides for the right to free elections. It discusses main concepts developed by the Strasbourg Court's jurisprudence concerning that clause. Special attention is devoted to the new trends in the case-law, including gradual emergence of procedural obligations under Article 3, its interplay with other substantive provisions of the Convention, the influence of the ‘soft-law’ instruments emanating from other organs of the Council of Europe, primarily texts of the Venice Commission. In conclusion, two options regarding further development of the Court's case-law on the right to free elections are proposed: the avenue of newly emerging guarantees and the avenue of two (narrower and wider) layers of protection.

scholarly journals Exceptions and Exclusions: The Right to Informed Consent for Medical Treatment of People with Psychosocial Disabilities in Europe

2016 ◽  
Vol 23 (3) ◽  
pp. 279-304 ◽  
Author(s):  
Lisa Waddington ◽  
Bernadette McSherry
Keyword(s):  
Human Rights ◽  
Informed Consent ◽  
Medical Treatment ◽  
Case Law ◽  
European Convention ◽  
Council Of Europe ◽  
Persons With Disabilities ◽  
European Court ◽  
Consent To Treatment ◽  
The Right

This article examines the relevant international law relating to informed consent to treatment for individuals with psychosocial disabilities and reflects on the protection offered in this respect by the European Convention on Human Rights (echr) and the Council of Europe Convention on Human Rights and Biomedicine. The article argues that while the un Convention on the Rights of Persons with Disabilities is beginning to influence case law of the European Court of Human Rights, only ‘weak’ protection has been afforded to people with psychosocial disabilities by the echr and the Court in relation to informed consent for medical treatment.

scholarly journals SOME PROBLEMS OF THE RIGHT TO FAIR TRIAL IN THE DECISIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS

2020 ◽  
Author(s):  
E. Rozhina ◽  
T. Reshetneva
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Public Law ◽  
The Body ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is applicable to any dispute between people in the field of civil law, however, the supervisory bodies of the Council of Europe had to resolve many complex issues arising from the application of this article in the field of public law, when any disciplinary the body was empowered by law to take actions affecting the rights or interests of individuals. To a large extent, the Court's case-law is developed in just such cases.

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 Case of Bistieva and Others v. Poland

2020 ◽  
Vol 8 (2) ◽  
pp. 129-139
Author(s):  
Anna Magdalena Kosińska
Keyword(s):  
Family Life ◽  
European Convention ◽  
The European Union ◽  
Council Of Europe ◽  
Irregular Migrants ◽  
Alternative Measures ◽  
Minor Children ◽  
The Republic ◽  
The Right ◽  
Article 5

The present commentary concerns the claims alleging a violation under Article 5 paragraph 1 (the right to liberty and security of a person) and paragraph 4 (the right to take proceedings to determine the lawfulness of the detention) of the European Convention on Human Rights and Article 8 (the right to respect for private and family life) ECHR by using detention by the Republic of Poland for the period of almost 6 months with regard to a family of third-country nationals. The applicant in the case was a national of Russia, Zita Bistieva and her three minor children. The judgement under discussion is significant from the perspective of strengthening the guarantees for the protection of the rights of irregular migrants in the system of both the Council of Europe and the European Union, on the grounds of the concept of equivalent protection adopted in EU primary law. The ruling in question also refers to the fact that the Member States do not sufficiently resort to alternative measures with regard to the detention of foreign nationals.

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.

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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