Partnering with Strasbourg: Constitutionalization of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments

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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In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽

10.1515/icl-2019-0040 ◽

2020 ◽

Vol 14 (1) ◽

pp. 43-69

Author(s):

Eszter Polgári

Keyword(s):

Human Rights ◽

Rule Of Law ◽

Case Law ◽

Council Of Europe ◽

The Rule Of Law ◽

Working Definition ◽

European Court ◽

Structured Analysis ◽

Definition Of ◽

Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

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Protecting Medical and Genetic Data

European Journal of Health Law ◽

10.1163/15718099720522192 ◽

1997 ◽

Vol 4 (4) ◽

pp. 361-388 ◽

Cited By ~ 3

Author(s):

Keyword(s):

Human Rights ◽

Data Protection ◽

Western Europe ◽

Modern Society ◽

Genetic Data ◽

Human Rights Law ◽

Council Of Europe ◽

Basic Principles ◽

East European ◽

Separate Treatment

AbstractData protection was introduced in Western Europe in the early 1970s and now also extends to Central and East European countries. It is a remarkable example of the response given by Human Rights law to the challenges of modern society. The applications of science and technology in the fields of informatics and biomedicine have produced results unforeseen by any legislator. Regulation has been developed under the leadership of the Council of Europe. It aims at laying down basic principles of data protection but without blocking the future. The author presents a historical survey of the Council of Europe's two main treaties relevant to protection of medical and genetic data, those of 1981 (data protection) and 1997 (bioethics) and of several other texts. He concludes that the European Human Rights Convention should be reinforced with specific provisions on 'medical human rights' and on data protection. He also comes out in favour of separate treatment of traditional medical files and genetic data.

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Domestic Investigation and Prosecution of Atrocities Committed during Military Operations: The Impact of Judgments of the European Court of Human Rights

Israel Law Review ◽

10.1017/s0021223713000186 ◽

2013 ◽

Vol 46 (3) ◽

pp. 369-404

Author(s):

Silvia Borelli

Keyword(s):

Human Rights ◽

European Convention ◽

Full Potential ◽

Remedial Measures ◽

Legal Systems ◽

Military Operations ◽

Council Of Europe ◽

Proactive Approach ◽

European Court ◽

The Impact

The undeniable impact of the European Convention on Human Rights on the legal systems – and the wider society – of Member States of the Council of Europe would not have been possible without its unique monitoring system, centred around the European Court of Human Rights and the Committee of Ministers of the Council of Europe. The present article assesses the extent to which the European Court's judgments that have found violations of the procedural obligations under Articles 2 and 3 of the Convention to investigate unlawful killings, disappearances, acts of torture or other ill-treatment have, in fact, led to an improvement in the capability of the domestic legal systems of states parties to ensure accountability for such abuses. On the basis of four case studies, it is concluded that the European Court's judgments, coupled with the supervisory powers of the Committee of Ministers, have the potential to make a very great impact on the capability of domestic legal systems to deal with gross violations of fundamental human rights, and have led to clear and positive changes within the domestic legal systems of respondent states. Nevertheless, this is by no means always the case, and it is suggested that, in order for the Convention system to achieve its full potential in the most politically charged cases, the European Court should adopt a more proactive approach to its remedial powers by ordering specific remedial measures, to include in particular the opening or reopening of investigations.

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Democracy and the Preservation of Minority Identity: Fragmentation within the European Human Rights Framework

International Journal on Minority and Group Rights ◽

10.1163/15718115-02403005 ◽

2017 ◽

Vol 24 (3) ◽

pp. 205-228

Author(s):

Stephanie E. Berry

Keyword(s):

Human Rights ◽

Minority Rights ◽

Council Of Europe ◽

International Human Rights ◽

Minority Identity ◽

European Court ◽

International Human ◽

Different Origins ◽

Historical Origins ◽

Institutional Fragmentation

The international human rights (ihr) and international minority rights (imr) regimes have very different origins. However, the two regimes converged in the 20th century, and imr are now understood to be a sub-regime of ihr. This article argues that the different historical origins of the two regimes impact how actors within each regime interpret their mission, and have resulted in institutional fragmentation within the Council of Europe. The mission of the European Court of Human Rights is the promotion and protection of democracy, whereas the Advisory Committee to the Framework Convention for the Protection of National Minority’s mission is the preservation of minority identity. In practice, this has led to conflicting interpretations of multi-sourced equivalent norms. It is suggested that inter-institutional dialogue provides an avenue through which these conflicting interpretations can be mediated.

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The Former Secretary General of the Council of Europe Confronting Russia’s Annexation of the Crimea and Turkey’s State of Emergency

European Convention on Human Rights Law Review ◽

10.1163/26663236-bja10026 ◽

2021 ◽

pp. 1-33

Author(s):

Esra Demir-Gürsel

Keyword(s):

Human Rights ◽

Secretary General ◽

Policy Preferences ◽

Council Of Europe ◽

State Of Emergency ◽

The Core ◽

European Court ◽

Political Expediency ◽

The Crimea ◽

The Postponement

Abstract This article investigates the influence of the former Secretary General of the Council of Europe (CoE), Thorbjørn Jagland, on the responses of other CoE bodies to the systemic breaches of the core principles of other CoE bodies to the systemic breaches of the core principles of the CoE in the context of two critical events: Russia’s annexation of the Crimea in 2014 and Turkey’s state of emergency that followed the attempted coup in 2016. Specifically, it examines the influence of the Secretary General’s policy preferences on the Parliamentary Assembly of the CoE and the European Court of Human Rights. The article argues that Jagland’s policy preferences in the context of these two events prioritised political expediency to the detriment of the CoE’s normative mission. The article finds that the Secretary General played a crucial role in facilitating the reversal of the sanctions imposed by the Assembly against Russia and the postponement of the processing of Turkey’s post-coup cases by the Court.

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The Impact of the Pan-European General Principles of Good Administration on Swiss Law

Good Administration and the Council of Europe ◽

10.1093/oso/9780198861539.003.0014 ◽

2020 ◽

pp. 353-374

Author(s):

Nadja Braun Binder ◽

Ardita Driza Maurer

Keyword(s):

Human Rights ◽

Case Law ◽

Administrative Law ◽

European Convention ◽

Council Of Europe ◽

European Court ◽

Swiss Law ◽

Written Law ◽

The Impact

This chapter is dedicated to exploring the impact on Swiss administrative law of the pan-European general principles of good administration developed within the framework of the Council of Europe (CoE). The chapter claims that the standards stemming from the European Convention on Human Rights and the case law of the European Court of Human Rights have been adopted in an exemplary way by Swiss authorities. The influence was especially strong in the 1980s and 1990s. The same cannot be said regarding other documents of the CoE, whose impact remains disparate because many aspects of the pan-European general principles of good administration were already part of the national written law. The chapter concludes that despite the exemplary integration of CoE instruments heated debates on the content of these instruments are not excluded from Switzerland.

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22. Europe

International Human Rights Law ◽

10.1093/he/9780198767237.003.0022 ◽

2017 ◽

Author(s):

Greer Steven

Keyword(s):

Human Rights ◽

Historical Development ◽

Fundamental Rights ◽

European Convention ◽

The European Union ◽

Council Of Europe ◽

European Court ◽

Key Characteristics ◽

Charter Of Fundamental Rights ◽

State Organizations

This chapter examines the origins, historical development, and key characteristics of the various inter-state organizations engaged in human rights activities in Europe. Having briefly described the Organization for Security and Cooperation in Europe, it examines the Council of Europe and the European Union, including the European Convention on Human Rights, the European Court of Human Rights and the EU Charter of Fundamental Rights.

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Germany's Dialogue with Strasbourg: Extrapolating theBundesverfassungsgericht'sRelationship with the European Court of Human Rights in the Preventive Detention Decision

German Law Journal ◽

10.1017/s2071832200020721 ◽

2012 ◽

Vol 13 (6) ◽

pp. 757-772 ◽

Cited By ~ 1

Author(s):

Birgit Peters

Keyword(s):

Human Rights ◽

National Level ◽

National Court ◽

Council Of Europe ◽

Member States ◽

Proper Role ◽

European Court ◽

New Applications ◽

The Relationship ◽

Sheer Number

Within the Council of Europe, the relationship between the ECtHR and the member states is crucial for the survival and effective functioning of the Court. The ECtHR is currently overwhelmed by applications, the bulk of which emanate from a relatively small number of states, notably Russia, Rumania, Turkey, and the Ukraine. The backlog of cases will soon be toppling the vertiginous mark of 160,000, the adjudication of which alone would take the Court more than six years. The sheer number of cases exemplifies the system's urgent need for reform. Lately, discussions have been heavily influenced by considerations of subsidiarity, which the earlier Interlaken Declaration-as well as the recent Brighton Conference-emphasized as the key for the future relationship between the ECtHR and member states. Discussions about the principle's proper role in the relationship between member states and the ECHR, however, are far from over. This is due to questions regarding the principle itself, as well as to the factual realities dominating in the ECtHR-national court relationship. The principle often focuses on a strict separation of competences at two different levels, the national and the international, and many understandings of that principle require that the two levels stand in a more or less hierarchical relationship. This is difficult to assume in the Council of Europe context, where, compared to the EU, neither the doctrine of direct effect nor the principle of primacy in application reigns. Moreover, Strasbourg's emphasis on subsidiarity appears to focus on the responsibility of the member states to remedy human rights violations. In line with that argument, scholars have opined that the ECHR system should focus on an approach in which the ECtHR would be involved only if there are good reasons to depart from interpretation at the national level. Nonetheless, others recently doubted the overall usefulness of such an understanding of subsidiarity, since those member states responsible for the lion's share of new applications to the ECHR often neither possess a functioning judiciary nor functioning judicial or executive institutions, in general.

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