scholarly journals Gender Equality Principle: Application in ECtHR’s Practice

2021 ◽  
Vol 9 (1) ◽  
pp. 83-95
Author(s):  
Svitlana Karvatska ◽  
Ivan Toronchuk ◽  
Alyona Manyk
Keyword(s):  
Human Rights ◽  
Gender Equality ◽  
Gender Discrimination ◽  
European Convention ◽  
Council Of Europe ◽  
Distinctive Features ◽  
Judicial Practice ◽  
European Court ◽  
Margin Of Appreciation ◽  
The One

The article is devoted to analyzing the decisions of the European Court of Human Rights (ECtHR), which concerned the issue of gender equality, distinctive features of the application of a gender equality principle by the ECtHR. Based on a study of ECtHR's rulings, it is noted that the concept of gender equality as one of the objectives of the Council of Europe has been applied by the ECtHR since the early 1990s. The ECtHR's approaches to dealing with gender equality cases are characterized both through the prism of non-discrimination (applying Article 14 of the European Convention on Human Rights in combination with other articles) and through complaints about violations of rights guaranteed by other ECHR articles. The analysis shows that, on the one hand, ECtHR emphasizes that gender equality is considered as one of the critical principles of the ECHR. However, on the other hand, significant difficulty in gender discrimination cases is the Court's possibility to refuse to analyze the case in the context of Article 14th content of the Convention. The possibility of giving the Court to states a vast margin of appreciation in determining domestic policies on gender equality is ambiguously manifested in judicial practice. The conclusion states that the need to ensure gender equality can be considered by the ECtHR as a legitimate aim and can serve as an appropriate basis for interfering with the exercise of certain rights and freedoms enshrined in the Convention.

Muslim Reformists, Female Citizenship, and the Public Accommodation of Islam in Liberal Democracy

2012 ◽  
Vol 5 (1) ◽  
pp. 2-35 ◽  
Author(s):  
Mohammad Fadel
Keyword(s):  
Human Rights ◽  
Gender Equality ◽  
Islamic Law ◽  
European Convention ◽  
Political Equality ◽  
The Public ◽  
European Court ◽  
Margin Of Appreciation ◽  
Gender Hierarchy ◽  
Normative Justification

AbstractThe European Court of Human Rights (ECHR), in a trilogy of cases involving Muslim claimants, has granted state parties to the European Convention on Human Rights a wide margin of appreciation with respect to the regulation of public manifestations of Islam. The ECHR has justified its decisions in these cases on the grounds that Islamic symbols, such as the ḥijāb, or Muslim commitments to the shari‘a — Islamic law — are inconsistent with the democratic order of Europe. This article raises the question of what kinds of commitments to gender equality and democratic decision-making are sufficient for a democratic order, and whether modernist Islamic teachings manifest a satisfactory normative commitment in this regard. It uses the arguments of two modern Muslim reformist scholars — Yūsuf al-Qaraḍāwī and ‘Abd al-Ḥalīm Abū Shuqqa — as evidence to argue that if the relevant degree of commitment to gender equality is understood from the perspective of political rather than comprehensive liberalism, doctrines such as those elaborated by these two religious scholars evidence sufficient commitment to the value of political equality between men and women. This makes less plausible the ECHR's arguments justifying a different treatment of Muslims on account of alleged Islamic commitments to gender hierarchy. It also argues that in light of Muslim modernist conceptions of the shari‘a, there is no normative justification to conclude that faithfulness to the shari‘a entails a categorical rejection of democracy as the ECHR suggested.

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’.

Allowing the Right Margin: The European Court of Human Rights and The National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?

2012 ◽  
Vol 14 ◽  
pp. 381-418 ◽  
Author(s):  
Dean Spielmann
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Margin Of Appreciation ◽  
Essential Question ◽  
Domestic Courts ◽  
The Right ◽  
Domestic Law

AbstractThe doctrine of the national margin of appreciation is well established in the case law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute. The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case law. After a brief overview of the doctrine’s origin, the analysis will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree or ‘reverse’ margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No 14, now ratified by all Council of Europe Member States, enshrines in Article 12—at least to some extent—an obligation to apply a margin of appreciation. One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity?

scholarly journals Influence of the European Court of Human Rights Practice on the Implementation of the Principle of Gender Equality in Ukraine

2021 ◽  
pp. 17-30
Author(s):  
Yurii Voloshyn ◽  
Nataliia Mushak
Keyword(s):  
Human Rights ◽  
Gender Equality ◽  
Gender Discrimination ◽  
Equal Rights ◽  
Council Of Europe ◽  
European Court ◽  
Participation Of Women ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
And Gender

The article analyses the modern court decisions of the European Court of Human Rights on the formation and implementation of the principle of gender equality in Ukraine. The research defines that the importance of ensuring equal rights and opportunities for women and men for Ukraine was because Ukraine is a member of all major international and European regional agreements in the field of human rights. The authors state that this is due both to Ukraine's general commitments to promoting respect for human rights and fundamental freedoms and their adherence, as well as the fact that its participation in European integration processes is important for Ukraine. The research stipulates that gender equality provides equal rights for women and men, as well as their same significance, opportunities, responsibilities and participation in all spheres of public and private life. The authors prove that the pioneering work of the Council of Europe in the field of human rights and gender equality contributed to the development of a comprehensive legal framework. Gender equality is one of the organization's priority areas of activity, and the Council of Europe continues to actively address current and emerging challenges and address barriers to achieving real and complete gender equality. The research investigates the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Protocol No12 in terms of prohibition of discrimination and ensuring gender equality. It also determines that the conceptual principles of these documents are the protection of human rights, support for democracy and ensuring the principle of the rule of law. The article states that, in particular, the modern legal instrument in the field of gender equality is the Council of Europe's Gender Equality Strategy 2018–2023. The document provides for the achievement of the main six goals. These include combating gender stereotypes and gender discrimination; preventing and combating violence against women; ensuring equal access of women to justice; ensuring equal participation of women and men in political and public decision-making; implementation of the strategy for achieving gender equality in politics and all activities; protection of the rights of migrants, refugees, women and girls seeking asylum. The authors prove that the establishment of the European value of gender equality should be ensured both in society as a whole and in its various institutions, in particular. This is primarily to prevent gender discrimination, ensure equal participation of women and men in making socially important decisions, ensuring equal opportunities for women and men to combine professional and family responsibilities, prevent gender violence, etc. Keywords: Gender Equality, European Standards, Legal Mechanism, European Court of Human Rights, Discrimination, Equal Rights.

International Obstacles to Russian Gender Discrimination Cases at the European Court of Human Rights

2019 ◽  
pp. 135-174
Author(s):  
Lisa McIntosh Sundstrom ◽  
Valerie Sperling ◽  
Melike Sayoglu
Keyword(s):  
Human Rights ◽  
Women's Rights ◽  
Gender Discrimination ◽  
European Convention ◽  
Women’S Rights ◽  
Council Of Europe ◽  
Case Record ◽  
The Past ◽  
European Court ◽  
Very High

Chapter 5 takes up the international obstacles to successful gender discrimination claims at the European Court of Human Rights (ECtHR), both across the Council of Europe, and from Russia specifically. The reluctance of the Court until recently to find violations of Article 14 alongside violations of other articles of the European Convention on Human Rights (ECHR), the limited set of circumstances in which discrimination falls under the Convention’s jurisdiction, and the very high bar of evidence required to prove discrimination, all play a large part in explaining the Court’s miniscule case record on gender discrimination. Yet we also document how the Court has become more open in the past several years to finding sex-based discrimination violations, in part due to the diffusion of successful logics of argument among women’s rights lawyers, as well as the emergence of standards in other international women’s rights conventions that the ECtHR has begun to acknowledge, such as the Convention on Eliminating All Forms of Discrimination Against Women (CEDAW). The chapter discusses a variety of landmark cases at the ECtHR in this area, such as Opuz v. Turkey and Konstantin Markin v. Russia.

scholarly journals The Siren’s Call? Exploring the Implications of an Additional Protocol to the European Convention on Human Rights on National Minorities

2016 ◽  
Vol 23 (1) ◽  
pp. 1-38 ◽  
Author(s):  
Stephanie E. Berry
Keyword(s):  
Human Rights ◽  
Advisory Committee ◽  
European Convention ◽  
Council Of Europe ◽  
Wide Margin ◽  
Additional Protocol ◽  
National Minorities ◽  
European Court ◽  
Margin Of Appreciation

Calls for the adoption of an Additional Protocol to the European Convention on Human Rights (echr) on National Minorities have persisted within the Council of Europe despite the adoption of the Framework Convention for the Protection of National Minorities (fcnm). This article explores the potential implications of the adoption of an Additional Protocol on National Minorities to the echr for the fcnm. The European Court of Human Rights (ECtHR) already has several tools that would allow it to extend protection to persons belonging to national minorities. However, as the ECtHR tends to allow States a wide margin of appreciation in cases concerning persons belonging to minorities, it is argued that the adoption of an Additional Protocol on National Minorities may not be desirable, as it has the potential to undermine the progress made by the Framework Convention Advisory Committee.

The Exclusiveness of Inclusion: On the Boundaries of Human Rights in Protecting Transnational and Second Generation Migrants

2009 ◽  
Vol 11 (3) ◽  
pp. 253-269 ◽  
Author(s):  
Anuscheh Farahat
Keyword(s):  
Human Rights ◽  
Institutional Arrangement ◽  
European Convention ◽  
Political Preference ◽  
Core Content ◽  
European Court ◽  
Margin Of Appreciation ◽  
Domestic Legislation ◽  
Transnational Migrants ◽  
The One

AbstractThis article analyses the treatment of so-called transnational migrants in expulsion cases reviewed under Article 8 of the European Convention on Human Rights before the European Court of Human Rights (hereinafter: the Court). By regularly crossing national borders and maintaining cultural and social ties to more than one country these migrants are in fact not effectively protected by the Court. This disadvantaging treatment can be explained as being the result of the Court's doctrine of margin of appreciation which allows domestic political preference in immigration policy to dominate the balancing process before the Court. The margin of appreciation doctrine is interpreted as the Court's way of dealing with the more general tension it faces in acting as a guardian on the one hand and respecting domestic legislation on the other. This tension is strengthened by the institutional arrangement under which the Court is acting. Against this background, this article submits two possible amendments on the doctrinal and procedural level, suggesting that the Court should follow a more inclusive reasoning and should replace the margin of appreciation doctrine by the concept of core content.

scholarly journals MARGINS OF APPRECIATION: CULTURAL RELATIVITY AND THE EUROPEAN COURT OF HUMAN RIGHTS IN THE POST-COLD WAR ERA

2005 ◽  
Vol 54 (2) ◽  
pp. 459-474 ◽  
Author(s):  
James A Sweeney
Keyword(s):  
Human Rights ◽  
Cold War ◽  
European Convention ◽  
Council Of Europe ◽  
Post Cold War ◽  
Cultural Relativity ◽  
European Court ◽  
Margin Of Appreciation ◽  
Protection Of Human Rights ◽  
The Cold War

The number of states participating in the Council of Europe's system for the protection of human rights has grown rapidly over recent years. Established in 1949 with an initial membership of 10 states, the Council has now grown to a membership of 46,2dwarfing the EU in its geographical reach. The most significant period of enlargement has been since the end of the Cold War as the formerly Communist states from central and eastern Europe flocked to the Council of Europe seeking assistance with the process of democratisation. The Council's most prominent human rights treaty, the European Convention on Human Rights, has entered into force for all but one of the 46 member states.3This paper questions whether the European Court of Human Rights' recognition of a national ‘margin of appreciation’ has allowed these new Contracting Parties too much leeway in the way they choose to protect, or more specifically, to limit, the exercise of human rights.

scholarly journals Psychiatric Commitment: Sixty Years Under the Scrutiny of the European Court of Human Rights

2021 ◽  
Vol 12 ◽  
Author(s):  
Gérard Niveau ◽  
Camille Jantzi ◽  
Tony Godet
Keyword(s):  
Human Rights ◽  
International Institutions ◽  
Case Law ◽  
Psychiatric Practice ◽  
European Convention ◽  
Major Influence ◽  
Direct Effects ◽  
Council Of Europe ◽  
European Court ◽  
The One

Background and Aims: In the field of mental health, the fundamental right to liberty is a point of tension between the practice of psychiatric commitment on the one hand and the universal concept of human rights on the other. The European Court of Human Rights (ECtHR) is a very specific means of safeguarding human rights because it allows an individual to not only assert their rights but also compel a state to bring its legislation into conformity with the principles of the European Convention on Human Rights. The aim of this study was to gather the case-law of the ECtHR on psychiatric commitment over the last 60 years and to determine how this case-law has affected national legislation and therefore psychiatric practice.Methods: Jurisprudence data were collected from the HUDOC ECtHR database, and the direct effects of the ECtHR judgements on the legislations of the countries concerned were collected from the HUDOC EXEC database of the Council of Europe. The case-law of the Court included 118 judgements and 56 decisions and concerned 31 of the 45 countries that have ratified the Convention.Results: This study therefore showed a direct effect of the Court's case-law on the legislation on psychiatric commitment in the various countries that have ratified the Convention. It was also possible to detect an indirect effect of this case-law through the directives of international institutions such as the directives of the Committee of Ministers of the Council of Europe concerning respect for people with mental disorders.Conclusions: The ECtHR case-law therefore has a major influence on the psychiatric practice in all Council of Europe countries.

Council of Europe

2018 ◽  
Author(s):  
Oliver Lewis
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Social Rights ◽  
Council Of Europe ◽  
Persons With Disabilities ◽  
European Committee ◽  
European Court ◽  
Human Rights Treaties ◽  
Fundamental Freedoms ◽  
Two Bodies

This chapter presents an overview of the adjudicative bodies of the Council of Europe—namely, the European Court of Human Rights (established by the European Convention on Human Rights and Fundamental Freedoms (ECHR)) and the European Committee of Social Rights—and outlines their mandates with regard to integrating UN human rights treaties. It analyses how these two bodies have cited the Convention on the Rights of Persons with Disabilities (CRPD). The dataset was forty-five cases dealt with by the Court and two collective complaints decided by the Committee that cite the CRPD up to 2016. Notwithstanding the relatively small size of the dataset, the conclusions are that the Council of Europe system has yet to engage seriously in the CRPD’s jurisprudential opportunities. The reasons for this cannot be ascertained from a desk-based methodology, and further research is required.

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