scholarly journals On Inter-State Litigation and Armed Conflict Cases in Strasbourg

2021 ◽  
pp. 1-48
Author(s):  
Philip Leach
Keyword(s):  
Human Rights ◽  
Eastern Europe ◽  
Armed Conflict ◽  
Human Rights Violations ◽  
Council Of Europe ◽  
Regular Feature ◽  
Member States ◽  
Related Individual ◽  
European Court ◽  
Inter State

Abstract The reluctance of Council of Europe member states to challenge each other at the bar of Europe, through the litigation of inter-state cases at the European Court, used to be a regular feature of the Strasbourg system. However, conflicts of different kinds in eastern Europe have led to a surge of such cases in recent years, as well as the introduction of thousands of related individual applications. The serious challenges presented, in particular by conflict-related cases, have led some commentators to question whether they can feasibly remain part of the Strasbourg process. For others, the focus should rather be on how such cases can be more effectively processed and assessed. This article emphasises the significance of both inter-state cases in general, and of cases arising from armed conflict (including individual applications): their political and legal importance; their centrality to the European human rights system; and how vital they are for individual victims of human rights violations. It analyses a number of controversial or challenging aspects of the adjudication of these cases, and puts forward some proposals for reform.

Germany's Dialogue with Strasbourg: Extrapolating theBundesverfassungsgericht'sRelationship with the European Court of Human Rights in the Preventive Detention Decision

2012 ◽  
Vol 13 (6) ◽  
pp. 757-772 ◽  
Author(s):  
Birgit Peters
Keyword(s):  
Human Rights ◽  
National Level ◽  
National Court ◽  
Council Of Europe ◽  
Member States ◽  
Proper Role ◽  
European Court ◽  
New Applications ◽  
The Relationship ◽  
Sheer Number

Within the Council of Europe, the relationship between the ECtHR and the member states is crucial for the survival and effective functioning of the Court. The ECtHR is currently overwhelmed by applications, the bulk of which emanate from a relatively small number of states, notably Russia, Rumania, Turkey, and the Ukraine. The backlog of cases will soon be toppling the vertiginous mark of 160,000, the adjudication of which alone would take the Court more than six years. The sheer number of cases exemplifies the system's urgent need for reform. Lately, discussions have been heavily influenced by considerations of subsidiarity, which the earlier Interlaken Declaration-as well as the recent Brighton Conference-emphasized as the key for the future relationship between the ECtHR and member states. Discussions about the principle's proper role in the relationship between member states and the ECHR, however, are far from over. This is due to questions regarding the principle itself, as well as to the factual realities dominating in the ECtHR-national court relationship. The principle often focuses on a strict separation of competences at two different levels, the national and the international, and many understandings of that principle require that the two levels stand in a more or less hierarchical relationship. This is difficult to assume in the Council of Europe context, where, compared to the EU, neither the doctrine of direct effect nor the principle of primacy in application reigns. Moreover, Strasbourg's emphasis on subsidiarity appears to focus on the responsibility of the member states to remedy human rights violations. In line with that argument, scholars have opined that the ECHR system should focus on an approach in which the ECtHR would be involved only if there are good reasons to depart from interpretation at the national level. Nonetheless, others recently doubted the overall usefulness of such an understanding of subsidiarity, since those member states responsible for the lion's share of new applications to the ECHR often neither possess a functioning judiciary nor functioning judicial or executive institutions, in general.

Expanding Competences by Judicial Lawmaking: The Pilot Judgment Procedure of the European Court of Human Rights

2011 ◽  
Vol 12 (5) ◽  
pp. 1231-1260 ◽  
Author(s):  
Markus Fyrnys
Keyword(s):  
Human Rights ◽  
Eastern Europe ◽  
Central And Eastern Europe ◽  
Institutional Design ◽  
European Convention ◽  
Current Debate ◽  
Council Of Europe ◽  
European Court ◽  
Judicial Lawmaking

The institutional design of the Strasbourg system that has evolved over the last decades is an expression of contemporary debates surrounding the system's very nature and purpose. The current debate primarily bears on the range of choices that the Council of Europe faces in adapting to the changes in Europe, which largely have been caused by its expansion to cover nearly all post-Communist States of Central and Eastern Europe since the 1990s. This expansion, and with it the extension of the scope of the European Convention on Human Rights (the Convention) to now more than 800 million people in forty seven countries, has confronted the European Court of Human Rights (the Court) with a far broader range of human rights problems than had previously existed. By 2010, the number of pending cases had risen to 139,650 but the Court's adjudicative capacity remains limited.

Cyberlibel Cases before the European Court of Human Rights: Estimating Possible Outcomes

2001 ◽  
Vol 19 (1) ◽  
pp. 5-20
Author(s):  
Dragos Cucereanu
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Council Of Europe ◽  
Member States ◽  
European Court ◽  
The Law ◽  
Defamation Law ◽  
The Way

Internet defamation, or cyberlibel, has become an increasingly widespread and alarming side of online expression. This has lead to controversies concerning the way of responding to this new challenge in defamation law. Such controversies persist, as law makers and courts in the Council of Europe Member States vary in their solutions. The author searches for uniformity in regulating cyberlibel in Europe, by estimating how the European Court of Human Rights could decide such cases, based on analogy with its previous case law, as well as the law and practice of those States that have addressed the issue. It concludes that the Court may take into consideration the specificity of Internet, while mostly in line with its previous case law, by further developing it. The article proposes a list of criteria that might help deciding cyberlibel cases, and analyses specific ways of determining their applicability and effect.

Do the Challenges of LGBTQ Asylum Applicants Under Dublin Register With the European Court of Human Rights?

2020 ◽  
pp. 096466392094636
Author(s):  
Raoul Wieland ◽  
Edward J Alessi
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
Human Rights Violations ◽  
Member States ◽  
Eu Member States ◽  
European Court ◽  
Dublin Regulation

Evidence suggests that Europe’s Dublin Regulation is increasing the precarity of lesbian, gay, bisexual, transgender, and queer (LGBTQ) asylum applicants. Dublin allocates responsibility for examining asylum claims between EU Member States. The European Court of Human Rights (ECtHR) guides the obligations of States under Dublin. Increasingly, the ECtHR draws on the concept of vulnerability to frame the experiences of asylum seekers. Vulnerability purportedly functions for the ECtHR as a lens through which the harm experienced by asylum applicants is magnified, enabling it to better recognize human rights violations. Nevertheless, the ECtHR’s vulnerability lens may be distorted by hetero- and cisgender normativity. We explore some implications of the ECtHR’s assumptions for how the vulnerabilities of LGBTQ asylum seekers in Europe under Dublin register with the ECtHR. We suggest that the combined frameworks of intersectional invisibility and layers of vulnerability can improve the ECtHR’s capacity to understand how LGBTQ asylum applicants may be particularly vulnerable under Dublin.

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’.

scholarly journals The Permissibility of Limiting Rights and Freedoms in the European and National Legal System Due to Health Protection

2020 ◽  
Vol 42 (3) ◽  
pp. 51-89
Author(s):  
Robert Krzysztof Tabaszewski
Keyword(s):  
Public Health ◽  
Human Rights ◽  
The European Union ◽  
Council Of Europe ◽  
Member States ◽  
Universal System ◽  
Human Rights Protection ◽  
European Court ◽  
Margin Of Appreciation ◽  
Correct Application

The article concerns the permissibility of limiting human rights and freedoms in European and national systems due to the protection of individual and public health. The author's goal was to analyse the current practice of states in the application of human rights limitation clauses in the European system of human rights protection. This is an important issue because the practice of limitation and margin of appreciation enjoyed by the member states of the Council of Europe is subject to scrutiny by means of complaints addressed to the European Court of Human Rights in Strasbourg, which examines the correct application of individual limitation clauses contained in the 1950 Convention. Human health is one of the main prerequisites for which it is possible to limit other human rights and freedoms. In the context of numerous epidemiological threats and natural disasters of a cross-border nature, assessing rights and freedoms becomes one of the most important issues in the field of public international law, constitutional law and public health law. Against the background of existing solutions in the universal system, the practice of the member states of the European Union and the Council of Europe was examined by comparing it with the views of the doctrine and the results of my research.

scholarly journals Pilot Judgments Delivered by the European Court of Human Rights against Romania

2020 ◽  
Vol 6 (2) ◽  
pp. 38-46
Author(s):  
Crina Mihaela Verga ◽  
◽  
◽  
◽  
◽  
...  
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Council Of Europe ◽  
Member States ◽  
European Court ◽  
The Subject

The article defines first the concept of pilot decision. Then it details the procedure employed in case of systemic or systematic violations of any right provided by the European Convention on Human Rights. Some relevant pilot judgments against certain member states of the Council of Europe are highlighted. Next, two pilot judgments delivered against Romania (Maria Atanasiu and Others v. Romania and Rezmives and Others v. Romania) are thoroughly examined. Finally, some relevant opinions on the subject are expressed. The issue is very topical for the Romanian state and the specialists in the field, precisely because of the consequences determined by the two analyzed pilot judgments.

scholarly journals The International Legal Nature of the Interaction between the Judicial Authorities of the Member States of the Council of Europe and the European Court of Human Rights

2021 ◽  
pp. 155-164
Author(s):  
Anna PRYSIAZHNA
Keyword(s):  
Human Rights ◽  
Legal Regulation ◽  
Council Of Europe ◽  
Judicial Cooperation ◽  
Theoretical Understanding ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Legal Nature

The current stage of development of international relations and international law is characterized by the active growth of interstate cooperation and the emergence of new more integrated forms of such cooperation. A special manifestation of this modern phenomenon is observed in the field of judicial cooperation. Moreover, the emergence in the modern world of international universal and regional courts and the gradual increase in their number, has become one of the prerequisites for a new form of international judicial cooperation — the interaction of national courts with international regional courts. In this regard, the greatest interest for the theoretical analysis of international legal regulation of judicial interaction is the study of the experience of such interaction in the European space, which operates the «oldest» international regional courts — the Court of Justice of the European Union, which was established in 1952 and was called the Court of Justice of t he European Coal and Steel Community and the European Court of Human Rights, established in 1959. The legal nature and forms of interaction of national courts of European states with the named international regional courts are of special interest for scientific analysis, which is explained both by considerable experience of judicial cooperation accumulated by them and novelty of legal forms and mechanisms of cooperation requiring theoretical understanding. Without exaggeration, the reopening of proceedings based on judgments of the European Court of Human Rights is one of the most effective, and often the only, measures to restore violated individual rights and improve the practice of national courts and ensure full and effective enforcement of ECHR judgments. The basis of cooperation between the courts of the member states of the Council of Europe and the ECHR is the provisions of the Convention, which makes the decision of the ECHR binding. The judicial authorities of the member states of the Council of Europe are obliged to apply the convention law of the Council of Europe, as well as the case law of the ECHR, which is the only source of cooperation between the courts of the member states of the Council of Europe and the European Court of Human Rights.

scholarly journals Protection against violence and discrimination: The case of Roma victims in member states of the council of Europe

Temida ◽  
2016 ◽  
Vol 19 (1) ◽  
pp. 5-24 ◽  
Author(s):  
Axelle Reiter
Keyword(s):  
Human Rights ◽  
Minority Groups ◽  
National Level ◽  
Council Of Europe ◽  
Protective Measures ◽  
Member States ◽  
Structural Problems ◽  
European Court ◽  
International Monitoring

This article focuses on the key role and contribution of the European Court of Human Rights (ECHR) in protecting the rights of Roma against systemic patterns of violence and discrimination. It investigates the suitability of individual applications in front of international monitoring organs as a litigation strategy to address structural problems emerging at the national level, such as widespread attacks against members of vulnerable minority groups, and puts forward that this strategy has demonstrated to be successful in the case of Roma. The analysis shows that complaints introduced before the ECHR have at the same time helped in providing redress to individual victims, uncovering patterns of systemic abuses, offering solutions to prevent their resurgence, effectively encouraging the adoption of protective measures domestically, and developing the competences of international supervisory mechanisms. As such, it constitutes the most effective avenue so far to right those societal wrongs.

scholarly journals Human Rights and Protection against Eviction in Anti-social Behaviour Cases in the Netherlands and Germany

2015 ◽  
Vol 2 (2) ◽  
pp. 156-181 ◽  
Author(s):  
Michel Vols ◽  
Marvin Kiehl ◽  
Julian Sidoli del Ceno
Keyword(s):  
Human Rights ◽  
Comparative Analysis ◽  
The Netherlands ◽  
Social Behaviour ◽  
Minimum Level ◽  
Council Of Europe ◽  
Member States ◽  
European Court

The European Court of Human Rights requires that any person at the risk of losing their home should be able to have the proportionality of the eviction determined by an independent tribunal in the light of the relevant principles under Article 8 echr. Consequently, member states of the Council of Europe are obliged to implement a minimum level of protection against the loss of the home. This paper analyses how the requirements are implemented in Dutch and German tenancy law with a focus on eviction cases concerning anti-social behaviour. With the help of a comparative analysis several methods of implementing the European requirements are identified. The Netherlands and Germany seem to comply technically with the requirements because of national built-in proportionality checks. However, it is questionable whether the European requirements really improve the position of tenants or whether they should be characterised primarily as a procedural hurdle that courts have to meet.

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