scholarly journals A Critical Analysis Of The Work Of The European Commission And European Court Of Human Rights In Relation With Non-Compliance Of Interim Measures - Period 1957-2011

2012 ◽  
Vol 7 (2) ◽  
Author(s):  
Clara Burbano Herrera
Keyword(s):  
Human Rights ◽  
European Commission ◽  
Case Law ◽  
Daily Basis ◽  
Member States ◽  
Founding Fathers ◽  
Supervisory System ◽  
European Court ◽  
Negative Effect ◽  
Interim Measures

<p style="text-align: justify;"><strong>Abstract</strong></p><p style="text-align: justify;">Today, interim measures have a key role in many of the cases that are brought before the European Human Rights System. The instrument has been designed to preserve and protect rights and freedoms to persons in a situation of extreme gravity and urgency, together with the interests of the parties in a case before the Court. This legal figure has been applied – nowadays – on a daily basis for more than half a century, first by the former European Commission on Human Rights (European Commission or Commission) and later by the European Court of Human Rights (European Court, Court or ECtHR).</p><p style="text-align: justify;">Despite the fact that interim measures have over time acquired a growing importance in the case law, States when faced with such a measure requiring them to act, sometimes refuse to abide by them. This contribution aims to give an exhaustive overview of the State incompliances. It is argued that the number of non-compliances is steadily growing, as is the number of perpetrators, not only among the ‘new’ Member States, but also among the ‘older’ member States and even the ‘founding fathers’ and that this can have a negative effect on the supervisory system as a whole. Some initiatives can, however, be taken by the European Court and the Committee of Ministers to improve and streamline the procedure with regard to interim measures, whereby all actors in the dispute may benefit.</p>

scholarly journals Staying the Return of Aliens from Europe through Interim Measures: The Case-law of the European Commission and the European Court of Human Rights

2011 ◽  
Vol 13 (1) ◽  
pp. 31-51 ◽  
Author(s):  
Yves Haeck ◽  
Clara Burbano Herrera
Keyword(s):  
Human Rights ◽  
Medical Treatment ◽  
European Commission ◽  
Death Penalty ◽  
Case Law ◽  
Life Imprisonment ◽  
Political Activities ◽  
Clear Tendency ◽  
European Court ◽  
Interim Measures

AbstractThe Strasbourg case-law demonstrates a clear tendency to protect aliens through interim measures in case of imminent deportation. Usually but not uniquely those persons claim(ed) before the supervisory organs to be in a situation of extreme gravity in case of forcible return to their country of origin because they can be subject to the death penalty, life imprisonment, persecution for their political activities, deprived of medicine/adequate medical treatment. This contribution explores which typologies of cases have led the European Commission and Court to apply interim measures in those situations, as well as which rights and freedoms have been protected thereby.

‘A Risk of Irreparable Damage’: Interim Measures in Proceedings before the European Court of Human Rights

2010 ◽  
Vol 12 ◽  
pp. 313-336
Author(s):  
Pamela McCormick
Keyword(s):  
Human Rights ◽  
Essential Feature ◽  
Case Law ◽  
Fundamental Rights ◽  
Judicial System ◽  
European Court ◽  
To Come ◽  
Human Rights Norms ◽  
Interim Measures ◽  
Irreparable Damage

Abstract Interim measures can be indicated by most international decision-making bodies which monitor compliance with human rights norms to the parties involved in the proceedings before them, in order to prevent the commission of any irreversible actions which would either preclude the proper examination of a complaint or render the final judgment meaningless. The availability of interim measures is an essential feature of any effective judicial system, particularly where fundamental rights are at stake. They play a particularly important role in proceedings before the European Court of Human Rights (‘the Court’). The volume of requests for an indication of interim measures received by the Court each year is substantial and increasing. This presents the Court with a number of legal and practical problems. This chapter examines the circumstances in which an indication of interim measures may be made, as well as the consequences of non-compliance with such an indication, although it is acknowledged that the incidence of non-compliance is low. With its recent case law, the Court has brought the existence of interim measures to the attention of a wider audience, which is desirable as only such an awareness will render the protection of Convention rights practical and effective rather than theoretical and illusory, a stated goal of the Court. However, such a wider awareness will in turn increase the volume of requests again, making it likely that the Court will in years to come have to make significant changes to the scope of requests for interim measures, as well as to its practices and procedures for considering such requests.

scholarly journals A Critical Analysis Of The Work Of The European Commission And European Court Of Human Rights In Relation With Non-Compliance Of Interim Measures - Period 1957-2011

2012 ◽  
Vol 7 (2) ◽  
Author(s):  
Clara Burbano Herrera
Keyword(s):  
Human Rights ◽  
European Commission ◽  
Critical Analysis ◽  
European Court ◽  
Interim Measures

A Critical Analysis Of The Work Of The European Commission And European Court Of Human Rights In Relation With Non-Compliance Of Interim Measures - Period 1957-2011

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.

Ždanoka v. Latvia – European Court of Human Rights

2007 ◽  
Vol 3 (2) ◽  
pp. 307-323 ◽  
Author(s):  
H.G. Hoogers
Keyword(s):  
Human Rights ◽  
20Th Century ◽  
Case Law ◽  
Member States ◽  
European Court ◽  
The Republic ◽  
To Come ◽  
Grand Chamber ◽  
The Right

On March 16, 2006, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its final judgment in the case of Tatjana Ždanoka against the Republic of Latvia. Although not the first decision under Article 3 of the first Protocol, the Ždanoka v. Latvia case was important, because it allowed the Court to come to a decision on an aspect of Article 3, first Protocol, which in earlier case law had not extensively been dealt with by the ECtHR: the right to be elected. Moreover, the case allowed the Court to make some statements of principle on another question with which numerous member states of the Council have been dealing throughout the 20th century: how far may a democracy go in protecting itself from (allegedly) undemocratic parties, groups or individuals?

EU values reflection in ECtHR case law

2021 ◽  
pp. 23-29
Author(s):  
Dmytro Boichuk ◽  
Kateryna Torhashova
Keyword(s):  
European Union ◽  
Human Rights ◽  
Legal System ◽  
Case Law ◽  
Practical Implementation ◽  
The European Union ◽  
Member States ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The article focuses on the importance of the European Union's values in the development of the legal system of the member states of the Convention for the Protection of Human Rights and Fundamental Freedoms, and for the functioning of the European Union, further integration processes and their reflection in the case law of the European Court of Human Rights. The ideological interpretation and practical implementation of these decisions are reflected.

The European Court of Human Rights in Search of Lost Time: an evolutionary interpretation

2021 ◽  
Vol 11 (3) ◽  
pp. 75-104
Author(s):  
Tigran Oganesian
Keyword(s):  
Human Rights ◽  
Case Law ◽  
First Century ◽  
Common Denominator ◽  
Member States ◽  
Textual Interpretation ◽  
European Court ◽  
Subjective Factor ◽  
Lost Time ◽  
Evolutionary Interpretation

Time is central to the case law of the European Court of Human Rights. By monitoring the effectiveness of the Convention’s system, the European Court of Human Rights (ECHR) tries to maintain relevancy and respond to new challenges. The author notes that the evolutionary interpretation is a method that provides the ECHR with the necessary degree of flexibility to ensure that the implementation of the rights is guaranteed by the Convention. Throughout this comparative analysis, the author emphasises that due to the peculiarities and differences in the legal culture of the respondent States, it is can be extremely difficult for the Court to promote a progressive interpretation of the Convention’s rules, even if it is consistent with the objectives of the Convention. In this regard, the Court’s decision in the Tyrer case is the embodiment of the philosophy of the living instrument. However, the Court presented a model of evolutionary interpretation and failed to immediately demonstrate how it works and will work in the future, which gave rise to a significant part of the criticism. As part of the critical views’ analysis on the application of the ECHR’s evolutionary interpretation, the author highlights that one way to overcome the subjective factor in evolutionary interpretation is the European consensus. This allows the Court to base its decisions on the “common denominator”, that is, not on the judges’ personal preferences, but on the existing consensus among the member States on any given issue. Considering this from a dialogical approach, the author proposes to consider consensus as a form of dialogue that flows from Member States to the Court on the question of what they believe should be the proper settlement of convention rights. The analysis of the application of the evolutionary method’s interpretation by other international courts is carried out, thus proving that the evolutionary interpretation is not merely a figment of the Strasbourg Court’s imagination and nor is it the result of judicial activism, but instead it is the consequence of today’s necessity. The author emphasises that a static understanding of rights and freedoms cannot guarantee the effectiveness of any system of international justice. The textual interpretation of the Convention is blind to contemporary developments and unjustifiably ignores the changed nature of human rights in the twenty-first century. On a practical level, it is likely that politically sensitive decisions will continue to provoke internal criticism. In the final part of the article, the author draws an analogy with Proust’s In Search of Lost Time, noting that the evolutionary interpretation is a kind of formula for the search for time, which simultaneously combines both the past and the present, and is a necessary formula for maintaining the effectiveness and relevance of the conventional system.

The Margin of Appreciation Doctrine in the Jurisprudence of Article 8 of the European Convention on Human Rights

1998 ◽  
Vol 16 (1) ◽  
pp. 41-61 ◽  
Author(s):  
Yutaka Arai
Keyword(s):  
Human Rights ◽  
European Commission ◽  
Case Law ◽  
The Other ◽  
European Convention ◽  
National Sovereignty ◽  
Member States ◽  
Uniform Approach ◽  
Margin Of Appreciation ◽  
Socioeconomic Diversity

The margin of appreciation is a measure of discretion allowed to the Member States in the manner that they implement the standards of the European Convention on Human Rights, taking into account their national particular circumstances. Both the European Commission and Court of Human Rights are entrusted with the balancing between the Europe-wide ‘uniform’ approach on one hand and the need to defer to the national sovereignty and to various local values deriving from cultural, religious, and socioeconomic diversity on the other. By analysing the interplay between strictness of scrutiny and the width of the margin of appreciation in the case-law of Article 8, the author attempts to identify the underlying policy grounds for the margin of appreciation under Article 8. He argues that there are certain policies which affect the judicial self-restraint and those which uphold the active review in the jurisprudence of Article 8.

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

‘A Risk of Irreparable Damage’: Interim Measures in Proceedings before the European Court of Human Rights

2010 ◽  
Vol 12 ◽  
pp. 313-336
Author(s):  
Pamela McCormick
Keyword(s):  
Human Rights ◽  
Essential Feature ◽  
Case Law ◽  
Fundamental Rights ◽  
Judicial System ◽  
European Court ◽  
To Come ◽  
Human Rights Norms ◽  
Interim Measures ◽  
Irreparable Damage

AbstractInterim measures can be indicated by most international decision-making bodies which monitor compliance with human rights norms to the parties involved in the proceedings before them, in order to prevent the commission of any irreversible actions which would either preclude the proper examination of a complaint or render the final judgment meaningless. The availability of interim measures is an essential feature of any effective judicial system, particularly where fundamental rights are at stake. They play a particularly important role in proceedings before the European Court of Human Rights (‘the Court’). The volume of requests for an indication of interim measures received by the Court each year is substantial and increasing. This presents the Court with a number of legal and practical problems. This chapter examines the circumstances in which an indication of interim measures may be made, as well as the consequences of non-compliance with such an indication, although it is acknowledged that the incidence of non-compliance is low. With its recent case law, the Court has brought the existence of interim measures to the attention of a wider audience, which is desirable as only such an awareness will render the protection of Convention rights practical and effective rather than theoretical and illusory, a stated goal of the Court. However, such a wider awareness will in turn increase the volume of requests again, making it likely that the Court will in years to come have to make significant changes to the scope of requests for interim measures, as well as to its practices and procedures for considering such requests.

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