The borders that disadvantage migrant women in enjoying human rights

2018 ◽  
Vol 36 (2) ◽  
pp. 93-110
Author(s):  
Lourdes Peroni
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Human Rights Violations ◽  
Migrant Women ◽  
Intersectionality Theory ◽  
European Court

This article launches a frame to investigate the inequalities underlying the human rights violations migrant women may experience. Drawing on intersectionality theory and on Ratna Kapur’s concept of ‘normative boundaries of belonging’, the article puts forward the notion of ‘intersecting borders of inequality’. The notion interrogates three types of borders that may construe migrant women as outsiders or lesser members in society: formal, normative and practical borders. The article demonstrates that scrutinising the ways in which these borders intersect illuminates some of the structures disadvantaging migrant women and invites imagining wider responses to tackle these disadvantages. To illustrate these arguments, the article uses examples of the European Court of Human Rights’ case law.

Functions of compensation for human rights violation in international and national judicial decisions

2021 ◽  
Vol 11 (1) ◽  
pp. 81-101
Author(s):  
Dmitry Kuznetsov
Keyword(s):  
Human Rights ◽  
Effective Means ◽  
National Court ◽  
Case Law ◽  
The State ◽  
Customary Law ◽  
Human Rights Violations ◽  
Complex Nature ◽  
European Court ◽  
International Responsibility

When establishing human rights violations committed by the state, should it be violation of internationally protected rights or constitutional rights, the violator is obliged to compensate for the harm caused. In the meantime, neither international sources, nor national legal acts and case law answer the question whether the obligation to compensate is exhausted by the compensation awarded in accordance with a decision of an international judicial body or such a payment has punitive nature, and the state keeps the obligation to compensate the damage within the frameworks of national proceedings. Following the first part of opening remarks the second part of the article studies universal international law approach towards the state obligation to compensate for human rights violations, it reviews positions of the International Court of Justice, the model established in international customary law of international responsibility. The third part discusses the compensation mechanism of the European Court of Human Rights and a number of cases where the Russian Federation was the respondent state. The forth part considers national regulation of the Council of Europe states and case law thereof. The author argues that the established international case law in respect of awarding compensations for human rights violations is too restrictive – it does not take into account a complex nature of this phenomenon which includes both correction of the individual applicant situation (restitution of the pre-existed situation) and prevention of similar situations in the future. It is concluded that awarding the compensation by an international body primarily constitutes a measure of international responsibility whereas consideration by a national court is a more effective means of restitution of the applicants rights and that the national court shall not deny consideration of applicants claims due to the fact that they have already been awarded compensation by the international judicial body including the European Court of Human Rights.

scholarly journals Non-pecuniary damages before the European Court of Human Rights: Forget the victim; it’s all about the state

2020 ◽  
Vol 33 (2) ◽  
pp. 335-369
Author(s):  
Veronika Fikfak
Keyword(s):  
Human Rights ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
Human Rights Violations ◽  
International Treaty ◽  
European Court ◽  
International Court ◽  
Degrading Treatment ◽  
Individual Justice

AbstractThis article studies how the European Court of Human Rights (ECtHR, the Court) adjusts damages for human rights violations. The article empirically analyses 13 years of ECtHR’s case law in relation to Articles 2 (right to life), 3 (torture, inhuman and degrading treatment), and 5 (arbitrary detention) of the European Convention on Human Rights (ECHR, the Convention). The goal is to understand whether the statements made by the Court about the aims pursued through just satisfaction are confirmed in practice. Through an empirical quantitative study relating to non-pecuniary damages, the article analyses the practice of the Court in awarding non-pecuniary damages for human rights violations and compares it to the competing visions of the ECtHR’s function. In particular, I am interested in determining whether just satisfaction is aimed at redressing the suffering of the victim, her circumstances and vulnerability, or whether the focus is more on the respondent state, its conduct and its past human rights record. The answers to these questions will contribute to the debate whether the ECtHR’s role is one of delivering ‘individual justice’ or whether the Court is – as an international court enforcing an international treaty – focused on the ‘state’.

The control of the Inter-American Court of Human Rights over amnesty laws and other exemption measures: Legitimacy assessment

2020 ◽  
Vol 33 (3) ◽  
pp. 667-687
Author(s):  
Juan Pablo Perez-Leon-Acevedo
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Democratic Legitimacy ◽  
Human Rights Violations ◽  
Sovereign State ◽  
National Legislation ◽  
European Court ◽  
Global Constitutionalism ◽  
Domestic Practices ◽  
Judicial Authority

AbstractIn 2001, the Inter-American Court of Human Rights (IACtHR) seminally found self-amnesty laws on serious human rights violations to be null and void. However, later national reactions showed that this supranational control has faced challenges. Such supranational judicial authority has been exercised where amnesty laws and other exemption measures blocked judicial cases, democratic referendums upheld legislation, and peace-making processes existed.This article seeks to determine whether the traditionally interventionist jurisprudence of the IACtHR on amnesty laws/exemption measures has been legitimate under global constitutionalism standards. The standards considered are: human rights, namely, rights of victims of mass atrocities; consistency or coherence of this jurisprudence with international, regional and national practices; and democratic legitimacy and/or accountability considerations.Victim rights have underlain the IACtHR’s jurisprudence on amnesty laws and similar measures. Importantly, developments on victim rights are not exclusive to the IACtHR as case law of other supranational human rights bodies evidences. Among human rights courts and bodies, the IACtHR has exercised the highest level of control over amnesty laws/exemption measures, even nullifying national legislation. However, the IACtHR’s case law shares common principles with UN/regional jurisprudential developments and domestic practices in terms of inadmissibility of amnesties and other exemption measures in cases of serious abuses. Unlike the European Court of Human Rights (ECtHR), the IACtHR has not deferred to sovereign state appreciation (conventionality control doctrine). Nevertheless, the IACtHR has arguably begun to move towards more ‘moderated’ approaches. This is advisable under democratic legitimacy considerations.

The right to appeal to the European Court of Human Rights

2020 ◽  
Author(s):  
Yuliya Samovich
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Regulation ◽  
The European Union ◽  
Educational Organizations ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Procedure ◽  
The Right ◽  
Judicial Protection

The manual is devoted to making individual complaints to the European Court of human rights: peculiarities of realization of the right to appeal, conditions of admissibility and the judicial procedure of the European Court of Human Rights. The author analyses some “autonomous concepts” used in the court's case law and touches upon the possibility of limiting the right to judicial protection. The article deals with the formation and development of the individual's rights to international judicial protection, as well as the protection of human rights in universal quasi-judicial international bodies and regional judicial institutions of the European Union and the Organization of American States. This publication includes a material containing an analysis of recent changes in the legal regulation of the Institute of individual complaints. The manual is recommended for students of educational organizations of higher education, studying in the areas of bachelor's and master's degree “Jurisprudence”.

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.

Rola uzasadnienia sądowego w realizacji prawa do rzetelnego procesu sądowoadministracyjnego– standard strasburski

2014 ◽  
pp. 13-31
Author(s):  
Katarzyna Grzelak-Bach
Keyword(s):  
Human Rights ◽  
Legal Reasoning ◽  
Case Law ◽  
Legal Order ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings ◽  
Court Proceedings ◽  
Basic Level

Following a brief introduction of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the author begins by analyzing case law from the European Court of Human Rights regarding the legal reasoning in judicial proceedings. The main premise of this paper is to present a formula for preparing legal reasoning in administrative court proceedings. The author draws attention to the role of judges who, in the process of adjudication, should apply creative interpretation of the rules of law, when they see errors or omissions in legislative provisions, or blatant violations of the European legal order. The conclusion of those deliberations finds, that the process of tailoring the approach to meet Strasbourg’s requirements should, on a basic level, be at the discretion of judges rather than the legislators.

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