Proportionality and the Human Rights of Companies Under the ECHR – Whose Interests are at Stake?

2020 ◽  
Vol 89 (3-4) ◽  
pp. 327-342
Author(s):  
Eduardo Gill-Pedro
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Free Expression ◽  
Human Beings ◽  
European Court ◽  
A Company ◽  
Do So

Abstract This article considers whose interests may be at stake when a company claims its human rights under the European Convention on Human Rights (echr). In order to do that, the article will first investigate whether it makes sense to conceive of companies as persons capable of having their own interests. It finds that it is possible to do so. The article proceeds to analyse the case law of the European Court of Human Rights (ECtHR) in respect of claims regarding their companies’ right to property, free expression and respect for home, considering whether, when the Court assesses the proportionality of the alleged interference, it is the interests of the company claiming the rights that are at stake. The article concludes it is possible to understand the case law of the court as not necessarily placing the interests of the company in the balance when assessing the proportionality of interferences with the Convention rights of companies. The article suggests that such an understanding is normatively desirable if we consider human rights as instruments for the protection of human beings.

Human Rights Law and National Sovereignty in Collusion: The Plight of Quasi-Nationals at Strasbourg

2003 ◽  
Vol 21 (1) ◽  
pp. 63-98 ◽  
Author(s):  
Marie-Benedicte Dembour
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Legal Analysis ◽  
Human Beings ◽  
Political Climate ◽  
European Court ◽  
Global Age ◽  
The Common ◽  
Nationality Law

This article offers a review of the cases where the European Court of Human Rights has been called upon to decide whether or not the expulsion of a ‘quasi-national’ following criminal conviction violated the European Convention on Human Rights. The Court has adopted various findings since its first ruling in 1991. The first part of this article argues that neither the facts of the cases, nor the composition of the relevant judicial panels, nor an evolution in the overall political climate explain in themselves the inconsistency in the case law, qualified as arbitrariness by one of the judges. The second part of the article moves beyond a close socio-legal analysis to discuss the significance of the common rule (once inadmissibility decisions are taken into consideration), according to which quasi-nationals are deportable. Nationality law, at the core of the case law, is revealed as a fiction that creates privilege at the same time as it obscures the discriminatory basis of this privilege under the guise of operating a neutral categorisation of human beings. The article notes in conclusion the continuing grip of the nation State in the global age and deplores the legitimation, at the highest judicial level, of exclusion on the basis of unquestioned national privilege.

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.

The Debate about Soviet Genocide in Lithuania in the Case Law of The European Court of Human Rights

2020 ◽  
pp. 1-16
Author(s):  
Dovilė Sagatienė
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Genocide Convention ◽  
Legal Regulations ◽  
Legal Instrument ◽  
Soviet Occupation ◽  
European Court

Abstract Since 1990 Lithuania has been claiming that what happened there during Soviet occupation is genocide, as per the 1948 Genocide Convention, which embodies universal justice for suppressed nations and other groups. Due to Soviet actions in Lithuania throughout the periods of 1940-1941 and 1944-1990, the country lost almost one fifth of its population. The application of Lithuanian national legal regulations regarding this issue has been recently discussed in the framework of another postwar international legal instrument – the European Convention of Human Rights (1950). The goal of this article is to examine the main debates, which were revealed by the European Court of Human Rights in the cases of Vasiliauskas v. Lithuania (2015) and Drėlingas v. Lithuania (2019), regarding the killings of Lithuanian partisans, including the recognition of the significance of partisans for the Lithuanian nation, the foreseeability of genocide “in part,” as well as the punishment for complicity in killing Lithuanian partisans.

The European Convention on Human Rights and International Law

2007 ◽  
Vol 56 (2) ◽  
pp. 217-231 ◽  
Author(s):  
Luzius Wildhaber
Keyword(s):  
Human Rights ◽  
International Law ◽  
Comparative Law ◽  
Case Law ◽  
European Convention ◽  
Mutual Relationship ◽  
Public International Law ◽  
European Court ◽  
Special Character ◽  
British Institute

AbstractThis article is an expanded and footnoted version of the lectur given at the British Institute of International and Comparative Law on Tuesday 21 March 2006, entitled ‘International Law in the European Court of Human Rights’.The article begins with some comparative comments on the application of the European Convention on Human Rights in monistic and dualistic systems It then discusses in detail the European Court's case law which confirms that the Convention, despite its special character as a human rights treaty, is indeed part of public international law. It concludes that the Convention and international law find themselves in a kind of interactive mutual relationship. checking and buildine on each other.

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.

Bringing People Down

2021 ◽  
Vol 24 (3) ◽  
pp. 433-466
Author(s):  
John Vorhaus
Keyword(s):  
Health Care ◽  
Human Rights ◽  
Corporal Punishment ◽  
European Convention ◽  
Human Beings ◽  
European Court ◽  
The Status ◽  
Relational Concept ◽  
Degrading Treatment ◽  
As If

Under Article 3 of the European Convention on Human Rights, degrading treatment and punishment is absolutely prohibited. This paper examines the nature of and wrong inherent in treatment and punishment of this kind. Cases brought before the European Court of Human Rights (the Court) as amounting to degrading treatment and punishment under Article 3 include instances of interrogation, conditions of confinement, corporal punishment, strip searches, and a failure to provide adequate health care. The Court acknowledges the degradation inherent in imprisonment generally, and does not consider this to be in violation of Article 3, but it also identifies a threshold at which degradation is so severe as to render impermissible punishments that cross this threshold. I offer an account of the Court’s conception of impermissible degradation as a symbolic dignitary harm. The victims are treated as inferior, as if they do not possess the status owed to human beings, neither treated with dignity nor given the respect owed to dignity. Degradation is a relational concept: the victim is brought down in the eyes of others following treatment motivated by the intention to degrade, or treatment which has a degrading effect. This, so I will argue, is the best account of the concept of degradation as deployed by the Court when determining punishments as in violation of Article 3.

Fragmentation of International Law Revisited: Insights, Good Practices, and Lessons to be Learned from the Case Law of the European Court of Human Rights

2015 ◽  
Vol 28 (4) ◽  
pp. 863-885 ◽  
Author(s):  
ADAMANTIA RACHOVITSA
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
European Convention ◽  
Vienna Convention ◽  
International Courts ◽  
Good Practices ◽  
European Court ◽  
Interpretation Process ◽  
Fragmentation Of International Law

AbstractThis article discusses the contribution of the European Court of Human Rights to mitigating difficulties arising from the fragmentation of international law. It argues that the Court's case law provides insights and good practices to be followed. First, the article furnishes evidence that the Court has developed an autonomous and distinct interpretative principle to construe the European Convention on Human Rights by taking other norms of international law into account. Second, it offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. It analyses the Court's approach to subtle contextual differences between similar or identical international norms and its position towards the requirements of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It concludes that international courts are developing innovative interpretative practices, which may not be strictly based on the letter of the VCLT.

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.

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