An Exercise in Defragmentation

2019 ◽  
pp. 179-197
Author(s):  
Andreas von Arnauld
Keyword(s):  
Human Rights ◽  
Rigorous Analysis ◽  
European Court ◽  
The Future ◽  
Main Driver ◽  
Unified Command ◽  
Grand Chamber ◽  
The Way

The chapter deals with the Grand Chamber judgment in Hassan v UK. With this judgment, which focused on the multinational forces operating in Iraq under unified command in 2003, the European Court of Human Rights has presented a landmark decision with flaws. While eventually unconvincing in its approach to derogations from Convention obligations under Article 15 ECHR, the Court has boldly freed itself of the constraints of the overly abstract and largely unworkable lex specialis standard and—as far as Europe is concerned—has paved the way to consolidate its role as the main driver of further substantive convergence. The author presents a rigorous analysis of the Hassan case and on this basis shows whether and how the Grand Chamber’s findings will influence the global debate regarding the interplay of IHRL and LOAC in the future.

3. The European Court of Human Rights: organization, practice, and procedure

2018 ◽  
Author(s):  
David Harris ◽  
Michael O’Boyle ◽  
Ed Bates ◽  
Carla Buckley ◽  
Krešimir Kamber
Keyword(s):  
Human Rights ◽  
European Court ◽  
The Future ◽  
Grand Chamber

This chapter discusses the organization and functions of the European Court of Human Rights. Topics covered include the composition of the Court; the election of judges; the roles of the Court Chambers and the Grand Chamber; pilot judgments; reform of the Court; and the future of the Court.

scholarly journals A Vinter retreat in Europe

2017 ◽  
Vol 8 (2) ◽  
pp. 128-138 ◽  
Author(s):  
Mark Pettigrew
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
European Convention ◽  
Domestic Court ◽  
England And Wales ◽  
European Court ◽  
The Future ◽  
Grand Chamber ◽  
The Uk ◽  
Court Of Appeal

In Vinter and Others v. United Kingdom, the Grand Chamber of the European Court of Human Rights held that domestic procedures for reviewing whole life prison sentences in England and Wales were in breach of Article 3 of the European Convention on Human Rights. In response, the domestic Court of Appeal declined to revise those procedures, or the material relating to them, and held that the Grand Chamber was incorrect in its finding; the law did in fact give prisoners hope for future release. Rather than reasserting the reasoning and findings of Vinter, the Grand Chamber has been appeased by the clarification offered by the UK court. The contradictions in that retreat from the Vinter judgement are analysed here and the future standing of the court is prophesized in relation to that decision.

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.

Is the assessment under Article 8 ECHR for migrants justifiable?

2021 ◽  
pp. 1023263X2110614
Author(s):  
Jennie Edlund ◽  
Václav Stehlík
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
European Convention ◽  
Individual Rights ◽  
Foreign Nationals ◽  
European Court ◽  
The Family ◽  
The Individual ◽  
The Way

The paper analyses the protection granted under Article 8 of the European Convention of Human Rights for different immigration cases. The way the European Court of Human Rights determines compliance with Article 8 for settled migrants differs from the way the Court determines compliance for foreign nationals seeking entry or requesting to regularize their irregular migration status. The paper argues that the European Court of Human Rights application of different principles when determining a States’ positive and negative obligations is contradicting its own case law. It also argues that the absence of justification grounds for the refusal of foreign nationals who are seeking entry lacks legitimacy. By treating all immigration cases under Article 8(2) the paper suggests that the differentiation between cases should be based on how a refusal of entry or an expulsion would impact on the family life. The paper also suggests that more consideration should be given towards the insiders interests when balancing the individual rights against the state's interests. These changes would lead to a more consistent and fair case law and generate a more convergent practice by the states which will increase the precedent value of the Court's judgements.

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.

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.

The Strasbourg Court on the Dayton Constitution: Judgment in the case of Sejdić and Finci v. Bosnia and Herzegovina, 22 December 2009

2010 ◽  
Vol 6 (2) ◽  
pp. 309-333 ◽  
Author(s):  
Samo Bardutzky
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Grand Chamber

On 22 December 2009, the Grand Chamber of the European Court of Human Rights (hereafter: the Court) issued a judgment on the applications filed by two citizens of Bosnia and Herzegovina, Mr Dervo Sejdić and Mr Jakob Finci. It found a violation of their rights under the Convention for the Protection of Human Rights and Fundamental Freedoms and under the Protocols to the Convention. Bosnia and Herzegovina had violated the applicants' rights under Article 14 of the Convention in conjunction with Article 3 of Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms and under Article 1 of Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

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