Arguable but Superfluous? – Judicial Policies of the European Court of Human Rights in Relation to the Right to an Effective Remedy before a National Authority under Article 13 ECHR

2021 ◽  
pp. 83-133
Keyword(s):  
Human Rights ◽  
National Authority ◽  
European Court ◽  
Effective Remedy ◽  
The Right

Stichting Mothers of Srebrenica v. Netherlands

2013 ◽  
Vol 107 (4) ◽  
pp. 884-890 ◽  
Author(s):  
Jacob Katz Cogan
Keyword(s):  
Human Rights ◽  
United Nations ◽  
European Convention ◽  
National Authority ◽  
European Court ◽  
The United Nations ◽  
Effective Remedy ◽  
The Right ◽  
Republika Srpska ◽  
Right Of Access

On June 11, 2013, in Stichting Mothers of Srebrenica, a chamber of the European Court of Human Rights found that the Dutch courts’ grant of immunity to the United Nations in a case brought by and on behalf of relatives of individuals killed by the Army of the Republika Srpska in and around Srebrenica in July 1995 did not run afoul of Articles 6 and 13 of the European Convention on Human Rights (Convention). Those provisions guarantee, respectively and among other things, the right of access to a court and the right to “an effective remedy before a national authority” if any Convention right is violated. Having found that the challenged decisions accorded with Dutch obligations under the Convention, the chamber declared the application before the Court inadmissible as “manifestly ill-founded” and “rejected” it pursuant to Article 35(3)(a) and 4. The chamber’s decision was unanimous.

O’Keeffe v. Ireland: overview and analysis

2017 ◽  
Author(s):  
James Gallen
Keyword(s):  
Human Rights ◽  
Sexual Abuse ◽  
Tort Law ◽  
European Convention ◽  
Human Right ◽  
Vicarious Liability ◽  
European Court ◽  
Effective Remedy ◽  
The Right ◽  
The Impact

James Gallen’s chapter reviews the case and the contributions of Adrian Hardiman and Conor O’Mahony to this book. Gallen argues that their discussion reveals the tension between the principle of subsidiarity and the right to effective protection and an effective remedy in the European Convention on Human Rights. The chapter argues that the case of O’Keeffe v Ireland also raises concerns about the European Court of Human Right methodology for the historical application of the Convention and about the interaction of Article 3 positive obligations with vicarious liability in tort. A further section examines the impact of the decision for victims of child sexual abuse and identifies that the decision provides the potential for an alternative remedy to the challenging use of vicarious liability in Irish tort law.

Hirsi Jamaa v. Italy. Application No. 27765/09

2013 ◽  
Vol 107 (2) ◽  
pp. 417-423 ◽  
Author(s):  
Irini Papanicolopulu
Keyword(s):  
Human Rights ◽  
European Convention ◽  
International Convention ◽  
European Court ◽  
The Status ◽  
Protection Of Human Rights ◽  
Grand Chamber ◽  
Effective Remedy ◽  
Maritime Search And Rescue ◽  
The Right

In a unanimous judgment in the case Hirsi Jamaa v. Italy, the Grand Chamber of the European Court of Human Rights (Court) held that Italy’s “push back” operations interdicting intending migrants and refugees at sea and returning them to Libya amounted to a violation of the prohibition of torture and other inhuman or degrading treatment under Article 3 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR or Convention), the prohibition of collective expulsions under Article 4 of Protocol 4 to the Convention, and the right to an effective remedy under Article 13 of the Convention. Hirsi Jamaa is the Court’s first judgment on the interception of migrants at sea and it addresses issues concerning the 1982 United Nations Convention on the Law of the Sea and the 1979 International Convention on Maritime Search and Rescue, as well as the 1951 Convention Relating to the Status of Refugees.

scholarly journals Exhaustion of domestic remedies as a condition of lodging a complaint before the European Court of Human Rights

2017 ◽  
Vol 1 (3) ◽  
pp. 168-173
Author(s):  
Tamara Gerasimenko
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Scientific Methods ◽  
European Court ◽  
International Court ◽  
Scope Of Application ◽  
The Subject ◽  
Effective Remedy ◽  
The Right

The subject. The article is devoted to the subject of the exhaustion of domestic remediesbefore filing a complaint to the European Court of Human Rights.The purpose. The purpose of this article is to show and reveal the characteristics of suchimportant condition of lodging a complaint before the European Court of Human Rights asthe exhaustion of domestic remedies.The methodology. The following scientific methods have been used to write this article:analysis, comparing and making conclusions.Results, scope of application. The right of individual petition is rightly considered to be thehallmark and the greatest achievement of the European Convention on Human Rights. Individualswho consider that their human rights have been violated have the possibility oflodging a complaint before the European Court of Human Rights. However, there are importantadmissibility requirements set out in the Convention that must be satisfied beforea case be examined. Applicants are expected to have exhausted their domestic remediesand have brought their complaints within a period of six months from the date of the finaldomestic decision. The obligation to exhaust domestic remedies forms part of customaryinternational law, recognized as such in the case – law of the International Court of Justice.The rationale for the exhaustion rule is to give the national authorities, primarily the courts,the opportunity to prevent or put right the alleged violation of the Convention. The domesticlegal order should provide an effective remedy for violations of Convention rights.Conclusions. The rule of exhaustion of domestic remedies is an important part of the functioningof the protection system under the Convention and its basic principle. 

The echr Grand Chamber Judgment in the case of Mugemangango v. Belgium

2021 ◽  
Vol 1 (1) ◽  
pp. 147-153
Author(s):  
Pieter Dirck G. Caboor
Keyword(s):  
Human Rights ◽  
European Court ◽  
Grand Chamber ◽  
Effective Remedy ◽  
The Right

Abstract The reviewed Judgment concerns a post-election dispute relating to the Walloon Parliament elections held on 25 May 2014. The European Court of Human Rights sitting as a Grand Chamber held unanimously on 10 July 2020 that the Kingdom of Belgium had violated the right to free elections and the right to an effective remedy at the occasion of the 2014 elections for the Walloon Regional Parliament.

The European Court of Human Rights: Nada v. Switzerland

2013 ◽  
Vol 52 (1) ◽  
pp. 268-322 ◽  
Author(s):  
Miša Zgonec-Rožej
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Security Council ◽  
Family Life ◽  
United Nations Security Council ◽  
European Convention ◽  
European Court ◽  
Grand Chamber ◽  
Effective Remedy ◽  
The Right

On September 12, 2012, the Grand Chamber of the European Court of Human Rights (the Court) ruled in Nada v. Switzerland that the implementation by Switzerland of the United Nations Security Council Al-Qaida Sanctions Regime violated the right to private and family life under Article 8, and the right to an effective remedy under Article 13 of the European Convention on Human Rights (ECHR).

Child Protection and the echr

2019 ◽  
Vol 27 (4) ◽  
pp. 660-693
Author(s):  
Conor O’Mahony
Keyword(s):  
Human Rights ◽  
Child Protection ◽  
Case Law ◽  
Comprehensive Treatment ◽  
European Court ◽  
Key Points ◽  
Effective Remedy ◽  
The Right ◽  
Private Actors ◽  
Coherent Body

The European Court of Human Rights has generated a significant volume of case law that imposes demanding standards on States Parties to prevent, investigate and remedy ill-treatment of children at the hands of private actors. However, confusion and inconsistency is evident on a number of key points. Similar cases are decided on different grounds; and the approach to whether the right to an effective remedy under Article 13 has been violated is erratic. This creates uncertainty as to what is required of States to implement judgments, and makes it more difficult for similarly situated victims to vindicate their rights without bringing repetitive applications to Strasbourg. This article provides the first comprehensive treatment of Convention obligations to protect children from ill-treatment. It identifies problematic aspects of the case law, and proffers a more coherent body of principles that would provide greater clarity regarding what the echr requires of States Parties in the sphere of child protection, and regarding the measures of implementation required of States in cases where violations are found.

scholarly journals Effective Remedy for Excessive Length of Proceedings: A Macedonian Perspective

2021 ◽  
Vol 4 (1) ◽  
pp. 61-78
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Effective Length ◽  
European Convention ◽  
Current Status ◽  
Reasonable Time ◽  
Legal Remedy ◽  
European Court ◽  
Effective Remedy ◽  
The Right

In the spirit of Latin maxim Ubi jus, ibi remedium, it is claimed that the right to an effective remedy permeates the entire European Convention human rights system, giving it a real and effective dimension. An argument is also made for a right to a trial within a reasonable time, meaning that an excessive length of proceedings can be remedied as well. As the principle of subsidiarity lies at the heart of the jurisdiction of the European Court of Human Rights, the establishment of an effective remedy before the national bodies/authorities is required. In the light of these general considerations, while celebrating the 70th anniversary of the European Convention of Human Rights, the underlying idea of this article is to highlight the fundamental standards of assessing the effectiveness of the remedies with regard to the length of proceedings established in European Court of Human Rights case-law. The focus is placed on the development, current status and functioning of the remedy for excessive length of proceedings in North Macedonia as a Member State of the Council of Europe. The article attempts to answer the question of whether the legal remedy for excessive length of proceedings that exists in Northern Macedonia can be considered effective within the meaning of the European Convention of Human Rights and the European Court of Human Rights case-law. Keywords: a right to a trial within a reasonable time; excessive length of proceedings; undue delays; an effective remedy; an effective length-of-proceedings remedy; ECtHR case-law; jurisprudence of the Supreme Court of North Macedonia.

Some National Security Issues under the European Convention on Human Rightscase-Law

2020 ◽  
Vol 26 (2) ◽  
pp. 157-161
Author(s):  
Gergana Georgieva ◽  
Yavor Simov ◽  
Reneta Nikolova
Keyword(s):  
Human Rights ◽  
National Security ◽  
Private Life ◽  
European Convention ◽  
Security Issues ◽  
The Right To Privacy ◽  
First Case ◽  
European Court ◽  
Effective Remedy ◽  
The Right

AbstractThis article explores some national security issues within the European Convention on Human Rights (ECHR) case-law. At this juncture, there have been numerous challenges facing national security, especially whether it should contradict or guarantee individual rights. The paper mainly scrutinizes Article 6 and 8 ECHR focusing on two significant cases of the European Court of Human Rights: Rotaru v. Romania and Leander v. Sweden. The first case deals with the violation of the right to a fair trial and an effective remedy as well as breaching the right to privacy. The second case concerns the storage of data regarding the private life of an individual and if this collection might be used for employment research aims for grounds of national security. The study shows that states have a wide margin of discretion when choosing the manners in which they make decisions to protect their national security. The few indications identified in the jurisprudence of a number of states in connection with the right to privateness covered by the paper feasibly fail to meet the criteria of legal certainty necessary to guarantee the proper functioning of the rule of law.

scholarly journals USE OF THE EUROPEAN COURT OF HUMAN RIGHTS PRACTICE AS A MECHANISM FOR PROTECTION OF THE RIGHTS OF CONVICTS

2019 ◽  
pp. 145-149
Author(s):  
O. V. Ilina
Keyword(s):  
Human Rights ◽  
Legal Status ◽  
Freedom Of Expression ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Forced Labour ◽  
European Standards ◽  
Effective Remedy ◽  
The Right

The research paper discusses the use of the practice of the European Court of Human Rights as a mechanism for ensuring the rights of convicts. Today, the practice of the ECHR has become increasingly important not only in the fight against crime, but also in the protection of the rights and freedoms of convicts. This is evidenced by the adoption in 2014 of the Law of Ukraine “On Amendments to the Criminal Executive Code of Ukraine on the Adaptation of the Legal Status of a Convict to European Standards”, which is aimed at eliminating the shortcomings of the Criminal Executive Code of Ukraine in respect of compliance with constitutional requirements and European standards regarding the regime of serving the sentences by convicts and so on. Adoption of the said law entailed the implementation of various directions of ensuring the rights of convicts, which became the subject of this study. As part of the research, Article 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms is analyzed, which states that States – Parties to the Convention undertake to ensure that everyone under their jurisdiction has the rights and freedoms set forth in the Convention for the Protection of Human Rights and Fundamental Freedoms. In view of the above, we believe that ensuring of rights and freedoms should also apply to convicts. Today, the practice of the ECHR is actively used in national law enforcement practice in the aspect of ensuring the rights of convicts. Such a statement is based on the own analysis of relevant judgments. The study leads to the conclusion that there are different ways of ensuring the rights of convicts, in particular, ensuring the right to a fair trial, the prevention of torture, inhuman or degrading treatment, etc. These directions of activity constitute a mechanism for ensuring the rights of convicts. In addition, we can say with certainty that convicts must be guaranteed all the rights enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms, which is possible taking into account the stay of persons in penitentiary institutions, in particular the right to life, prohibition of slavery and forced labour; freedom of thought, conscience and religion; freedom of expression; the right to an effective remedy; prohibition of discrimination, etc.

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