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.

The Potential of Application of the ECHR in Climate Change Related Cases

2021 ◽  
Vol 23 (2-3) ◽  
pp. 197-208
Author(s):  
Przemysław Siwior
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
Family Life ◽  
Potential Application ◽  
Case Law ◽  
European Convention ◽  
Right To Life ◽  
Adverse Impacts ◽  
European Court

Abstract The purpose of this article is to analyse the existing case-law of the European Court of Human Rights (ECtHR) in environmental cases in order to determine whether the European Convention on Human Rights (ECHR) ensures protection in cases related to climate change and its adverse impacts. Due to the fact that to date the ECtHR has not yet ruled on the issue of climate change, the article analyses environmental cases addressed by the ECtHR based on article 8 (right to respect for private and family life) and article 2 (right to life) of the ECHR taking into account potential application of their conclusions to climate change.

THE COURTS AND THE ECHR: A PRINCIPLED APPROACH TO THE STRASBOURG JURISPRUDENCE

2013 ◽  
Vol 72 (2) ◽  
pp. 289-300 ◽  
Author(s):  
EIRIK BJORGE
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Case Law ◽  
European Convention ◽  
National Courts ◽  
The United Kingdom ◽  
European Court ◽  
Judicial Authority ◽  
The Way

AbstractThe way in which the courts in the United Kingdom have interpreted and applied the Ullah principle has created problems in the national application of the European Convention on Human Rights. As is evident particularly in Ambrose, this is partly because Lord Bingham's approach in Ullah has been misunderstood. The article analyses these issues in relation to the notion of binding precedent, finding that judicial authority belongs to principles. The national courts ought not, though that is what the Ullah–Ambrose approach enjoins, to expend their energies seeking to align the case before them with the least dissimilar of the reported cases. Rather they should stand back from the case law of the European Court, and apply the broad principles upon which the jurisprudence is founded.

scholarly journals INTERNATIONAL CONCEPTIONS OF THE FAMILY

2017 ◽  
Vol 66 (4) ◽  
pp. 833-862 ◽  
Author(s):  
Fareda Banda ◽  
John Eekelaar
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
Structural Components ◽  
The Family ◽  
Adults And Children ◽  
Human Rights Norms ◽  
The Individual

AbstractThis article examines the evolving way the ‘family’ and ‘family life’ have been understood in international and regional human rights instruments, and in the case law of the relevant institutions. It shows how the various structural components which are considered to constitute those concepts operate both between relevant adults and between adults and children. But it also shows that important normative elements, in particular, anti-discrimination norms, operate both to undermine the perception of some structures as constituting ‘family’, and to modify those structures themselves. This raises the question how far human rights norms should be seen as protecting family units in themselves or the individual members that constitute them.

scholarly journals ADMINISTRATION OF JUSTICE DURING THE COVID-19 PANDEMIC AND THE RIGHT TO A FAIR TRIAL

2021 ◽  
Author(s):  
Krešimir Kamber ◽  
Lana Kovačić Markić
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
World Health ◽  
European Convention ◽  
European Court ◽  
Administration Of Justice ◽  
The Right ◽  
The Way

On 11 March 2020 the World Health Organization announced the Covid-19 (coronavirus) to be a pandemic. To combat the pandemic, many countries had to adopt emergency measures and some of these measures have affected the judicial system, especially the functioning of courts. The pandemic has been characterised as far as the judiciary is concerned by complete or partial closure of court buildings for the parties and for the public. It is clear that the functioning of national judicial systems has been severely disrupted. This limited functioning of courts impacted the individuals’ right to a fair trial guaranteed, in particular, under Article 6 of the European Convention on Human Rights. The aim of this article is to examine the manner of the administration of justice during the Covid pandemic and its impact on the due process guarantees. Focus is put on the extent to which different Covid measures, in particular remote access to justice and online hearings have impacted the guarantees of the right to a fair trial and the due process guarantees in general, notably in detention cases. In this connection, the article provides a comparative overview of the functioning of the European legal systems during the pandemic. It also looks into the way in which the two European courts – the European Court of Human Rights and the Court of Justice of the European Union functioned, as well as the way in which the Croatian courts, including the Constitutional Court, organised their work during the pandemic. The article then provides an insight into the issue of online/remote hearings in the case-law of the European Court of Human Rights and in the Croatian Constitutional Court’s case-law. On the basis of this assessment, the article identifies the differences in the use of remote/online hearings between and within jurisdictions. In conclusion, the article points to some critical considerations that should be taken into account when devising the manner in which any Covid pandemic experience with the administration of justice (notably with regard to remote/online hearings) can be taken forward.

scholarly journals papel del artículo 8 CEDH en la construcción del margen de apreciación nacional y la doctrina de las obligaciones positivas del Estado

2020 ◽  
Author(s):  
Lara Redondo Saceda
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
European Convention ◽  
Derechos Humanos ◽  
European Court ◽  
Margin Of Appreciation ◽  
The Right

El artículo 8 del Convenio Europeo de Derechos Humanos –que protege los derechos al respeto la vida privada y familiar, el domicilio y la correspondencia– se ha configurado en estos setenta años de Convenio como uno de los escenarios habituales del desarrollo del margen de apreciación nacional y la doctrina de las obligaciones positivas del Estado. Esto parece justificarse en el contenido y estructura de este artículo y en las restricciones y limitaciones al ejercicio de estos derechos establecidas por su párrafo segundo. En este marco, el objetivo de este artículo es analizar cuál ha sido el papel del artículo 8 CEDH en el desarrollo de estos estándares interpretativos y cómo ha influido en la jurisprudencia del Tribunal Europeo de Derechos Humanos. Article 8 of the European Convention on Human Rights –which protects the right to respect for private and family life, home and correspondence– has been configured as a traditional place for the development of the margin of appreciation and the doctrine of State’s positive obligations. The scope and structure of this article and its limitation clause in the second paragraph seem to justify these developments. In this context, the objective of this article is to analyse the role of Article 8 ECHR in the development of these interpretative standards and its influence in the European Court of Human Rights case-law.

scholarly journals The concept of ‘internal judicial independence’ in the case law of the European Court of Human Rights

2019 ◽  
Vol 15 (1) ◽  
pp. 104-133 ◽  
Author(s):  
Joost Sillen
Keyword(s):  
Human Rights ◽  
Judicial Independence ◽  
Case Law ◽  
European Convention ◽  
Council Of Europe ◽  
Member States ◽  
European Court ◽  
The Individual ◽  
Communist Countries

Internal judicial independence as a new element of the case law of the Strasbourg Court on Article 6 of the European Convention on Human Rights – The Court has only found violations of internal judicial independence in cases against former communist countries – Relevance of the case law for other member states of the Council of Europe – Internal judicial independence as part of the requirement of an impartial tribunal? – Importance of the independence of the individual judge

scholarly journals Respect of the Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the recent case law of the European Court of Human Rights

2020 ◽  
Vol 54 (4) ◽  
pp. 1533-1560
Author(s):  
Jovana Vojvodić
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Human Life ◽  
Case Law ◽  
Private Life ◽  
Recent Case ◽  
European Convention ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

Private life, family life, home and correspondence represent some of the most intimate and significant aspects of human life. The focus of this paper is an analysis of the right to respect for private life, family life, home and correspondence, as the elements of the protection of the Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The analysis was primarily conducted through research and interpretation of the European Court of Human Rights recent case law, whereby, some of the cases of the highest importance as well as the case of the Republic of Serbia as a respondent state, were specially observed.

scholarly journals The scope of the margin of appreciation in the jurisprudence of the European Court of Human Rights

2021 ◽  
Author(s):  
K. O. Trykhlib
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
European Consensus ◽  
European Court ◽  
Margin Of Appreciation ◽  
Protection Of Human Rights ◽  
The Individual ◽  
Restrictive Measures ◽  
Discretionary Powers

The article analyzes the essence and features of the application of the doctrine of margin of appreciation in the jurisprudence of the European Court of Human Rights. It has been established that the margin of appreciation can be wide or narrow. The factors influencing the scope of the state’s margin of appreciation while effectively ensuring and protecting the rights guaranteed by the European Convention on Human Rights have been identified and examined. The core criteria and principles of law, which are applied and developed in its case-law by the European Court of Human Rights when granting a certain scope of discretionary powers, have been studied. It is concluded that the key task of the European Court of Human Rights is to exercise effective review over the ensuring and protection of human rights and freedoms enshrined by the European Convention on Human Rights. When defining and granting the margin of appreciation, the European Court of Human Rights is guided by the principles of subsidiarity and proportionality. The scope of the state’s discretion always depends on the circumstances of each particular case, the type and specifics of the violated and/or limited right, its significance for the individual, the characteristics of competing interests, the background and context of the interference, the presence or absence of the European consensus on the issue at stake, the purpose of the interference, the degree of its intensity and the duration, the nature of restrictive measures and their results, as well as the proportionality of the restriction of human rights and freedoms.

THE RIGHT TO RESPECT FOR CORRESPONDENCE IN UNDERSTANDING THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2017 ◽  
Author(s):  
Yevhen Bilousov ◽  
◽  
Nataliia Kordii ◽  
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
Private Life ◽  
Scientific Article ◽  
Professional Activities ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Individual ◽  
The Right

Article 8 of the Convention for the Protection of Human Rights is called "the right to respect for private and family life", thus establishing at the international level the legal basis for the exercise of the right to privacy. From the content of this article it follows that this right has four components: private and family life, correspondence and housing. The scientific article is devoted to the study of the right to respect for correspondence under Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. From the literal interpretation of the convention provisions and as evidenced by the case law of the European Court of Human Rights, the implementation of the studied law goes beyond the private life of the individual and acquires special features of its implementation in other spheres of life, such as professional activities. The author analyzes the case law of the European Court in order to identify, generalize and structure the components (content) of the concept of "correspondence", given the possibility of practical use of such information due to the fact that when considering a particular application, the Court assesses whether and types of applied means of communication. This scientific article examines the implementation of the right to correspondence in civil and criminal law, which indicates the gradual expansion of the relevant regulations to different types of legal relations. In examining this issue on the basis of convention provisions and analysis of the case law of the Court, the author has studied and presented in a generalized form the grounds for lawful interference with the right to respect for correspondence.

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