Religious and Linguistic Minorities and the European Court of Human Rights: Between Restrictive Measures and Concerted Solutions

The author analyses the concept of abuse of procedural rights with reference to the case-law of the European Court of Human Rights (ECtHR). In their applications to the ECtHR the applicants often claim that the violations the European Convention on Human Rights (the ECHR) were accompanied by various abuses by the domestic authorities. Such abuses may be of procedural nature and those matters are examined by the ECtHR quite often because the Convention is primarily aimed at protecting an individual from State arbitrariness. At the same time, the problem of abuse of procedural rights may arise before the ECtHR, when such acts were committed by an applicant. This aspect of the problem is being examined in the present article. In this regard the issue of abuse of procedural rights appears in the case-law of the ECtHR in the context of the complaints concerning the alleged violations of rights under the ECHR. This may happen when the State measures to address such a negative phenomenon (for example, penalty for the abuse of procedural right) may at the same time affect the fundamental rights under the Convention. Apart from that, this issue may arise in the context of the application of restrictive measures by the ECtHR itself due to applicants’ abuse of their right of individual petition to the ECtHR. The main features of the abuse of procedural rights arising from the case-law of the ECtHR are the following: (1) using the procedural right contrary to its purpose (in view of multiple purposes of human conduct, this condition implies the need to establish a dominant purpose in the procedural conduct of the person); (2) the presence of damage resulting from such procedural conduct; (3) the exceptional nature of such procedural conduct (implying the necessity to focus on the explicit and obvious facts of procedural abuses). The combination of these features should be used cumulatively in order to determine correctly the limits of applicability of this concept and distinguish it from other related concepts, such as legitimate use of procedural right, refusal to use the procedural right, good-faith mistake in procedural conduct. In addition, the lack of legislative regulation of this institution in the law on criminal procedure of Ukraine calls for the development of judicial practice under Article 185-3 of the Code of Administrative Offenses of Ukraine as regards the administrative liability for contempt of court. It is argued that the provisions of Article 185-3 of that Code, if given appropriate judicial interpretation, can cover a wide range of procedural abuses. Keywords: abuse of procedural right, realisation of subjective right, contempt of court.

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Part III Security Governance Tools, Ch.38 National Security, Surveillance, and Human Rights

The Oxford Handbook of the International Law of Global Security ◽

10.1093/law/9780198827276.003.0039 ◽

2021 ◽

Author(s):

Christakis Théodore ◽

Bouslimani Katia

Keyword(s):

Human Rights ◽

National Security ◽

European Convention ◽

International Human Rights Law ◽

Social Functions ◽

European Court ◽

Governance Tools ◽

Restrictive Measures ◽

Security Surveillance ◽

The Relationship

This chapter reflects on the relationship between national security, surveillance, and human rights. The possibility to adopt restrictive measures in case of threats to national security is an essential component of the international legal system and one of those ‘adjustment variables’ that allow international human rights law to accommodate and ascertain its social functions. The abuse of these mechanisms, however, is also a major threat to the legal order, judicial security, and the rule of law. Domestic rulers and security agencies have often used ‘national security’ as a pretext to violate human rights and fundamental freedoms; to monitor political opponents; to conceal embarrassing or illegal behaviour; to bypass investigation by independent and democratic bodies; or to suppress political and social unrest. In a democracy, surveillance must be balanced with public liberties, and especially with privacy. The chapter looks at the case law of the European Court of Human Rights on national surveillance. It presents the three main criteria used by the Court to assess the compatibility of surveillance laws with the European Convention of Human Rights.

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

Problems of Legality ◽

10.21564/2414-990x.154.239125 ◽

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.

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