scholarly journals O “ESVERDEAMENTO” DA CONVENÇÃO EUROPEIA DE DIREITOS HUMANOS: VÍCIOS E VIRTUDES / THE “GREENING” OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS: VICES AND VIRTUES

2017 ◽  
Vol 22 (3) ◽  
pp. 169
Author(s):  
José Adércio Leite Sampaio
Keyword(s):  
Human Rights ◽  
Environmental Protection ◽  
Family Life ◽  
European Convention ◽  
European Court ◽  
The Right

Não há uma previsão expressa do direito ao meio ambiente equilibrado na Convenção Europeia de Direitos Humanos (CEDH). Sem embargo, há diversas normas e políticas destinadas a promover em toda Europa uma proteção ambiental. A Corte Europeia de Direitos Humanos, embora não o reconheça como um direito implícito na CEDH, tem-se valido dos direitos expressamente nela previstos, sobretudo do direito ao respeito à vida privada e familiar, para afirmar-lhe, de modo reflexo, a proteção. É o que tem sido chamado de “ecologização” ou “esverdeamento” da Convenção Europeia. Embora esse entendimento apresente seus problemas, tem sido um instrumento que, progressivamente, amplia a proteção daquele direito, tanto em seu aspecto substantivo, quanto em sua dimensão processual. There is no express right to a balanced environment in the European Convention on Human Rights (ECHR). Nevertheless, there are several rules and policies to promote the environmental protection throughout Europe. Although not recognizing it as an implicit right in the ECHR, the European Court of Human Rights has been making use of the rights provided therein, particularly the right to respect for private and family life, to affirm it reflexively. It is what has been called “greening” of the European Convention. This understanding presents its problems, but it has been an instrument that progressively extends the protection of that right, both in its substantive aspect, and in its procedural dimension.

Family Matters: European Court of Human Rights Finds German Parenting Rights Decisions to be in Violation of Article 8 of the Convention

2002 ◽  
Vol 3 (4) ◽  
Author(s):  
Cristina Hoss
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Fourth Section ◽  
Natural Family ◽  
Parents And Children ◽  
European Court ◽  
The Right

The fourth section of the, European Court of Human Rights (ECHR) in Strasbourg, in a judgment from 26 February 2002, held that the German authorities, in a case involving the revocation of parenting rights, violated Article 8 of the European Convention on Human Rights. The circumstances of the case are compelling: the painful separation of parents and children ordered by the German authorities in the interests of the children, followed by several years of hard-fought litigation as the parents struggled to reestablish their parenting rights over their children and to restore their natural family. The Court concluded that the interference in the right of private and family life was not proportionate to the legitimate aim pursued by the German authorities.

Marriage, Family, Discrimination & Contradiction: An Evaluation of the Legacy and Future of the European Court of Human Rights' Jurisprudence on LGBT Rights

2011 ◽  
Vol 12 (10) ◽  
pp. 1746-1763 ◽  
Author(s):  
Sarah Lucy Cooper
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Same Sex ◽  
Registration System ◽  
Same Sex Couples ◽  
European Court ◽  
Opposite Sex ◽  
Grand Chamber ◽  
The Right

The European Court of Human Rights (ECtHR) has been considering whether same-sex couples should have the rights to marry and to be recognized as a family under the European Convention of Human Rights (ECHR) for over thirty years. In the 1980s the European Commission of Human Rights (the Commission) and the ECtHR respectively rejected the notion that same-sex relationships constituted a “family life” under Article 8 of the ECHR, and that post-operative transgendered persons had the right to marry under Article 12. However, throughout the 1990s and the first decade of the new millennium, the ECtHR handed down a body of judgments that incrementally liberalized these rights (albeit not always smoothly) in favor of LGBT persons. This evolution culminated in part on 24 June 2010, when the ECtHR passed judgment inSchalk and Kopf v. Austria.In that case the First Section of the ECtHR made a number of major, but seemingly contradictory rulings. For the first time in its history, the ECtHR ruled that same-sex relationships expressly constitute a “family life” under Article 8, and that the right to marry under Article 12 was not confined to opposite-sex couples in “all circumstances.” However, the ECtHR simultaneously ruled that Member States are under no obligation to protect that “family life,” by providing same-sex couples with access to marriage under Article 12, or an alternative registration system under Articles 8 and 14. The Grand Chamber denied the applicants' subsequent request for a referral.

An Emerging Right to a “Gay” Family Life? The CaseOliari v. Italyin a Comparative Perspective

2016 ◽  
Vol 17 (3) ◽  
pp. 451-485 ◽  
Author(s):  
Sabrina Ragone ◽  
Valentina Volpe
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Same Sex Couples ◽  
European Court ◽  
National Perspective ◽  
The Right

This Article analyses, through the lens of comparative law, theOliari and others v. Italyjudgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. TheOliaricase is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrateOliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of theOliarijudgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.

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.

The European Court of Human Rights: Nada v. Switzerland

2013 ◽  
Vol 52 (1) ◽  
pp. 268-322 ◽  
Author(s):  
Miša Zgonec-Rožej
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Security Council ◽  
Family Life ◽  
United Nations Security Council ◽  
European Convention ◽  
European Court ◽  
Grand Chamber ◽  
Effective Remedy ◽  
The Right

On September 12, 2012, the Grand Chamber of the European Court of Human Rights (the Court) ruled in Nada v. Switzerland that the implementation by Switzerland of the United Nations Security Council Al-Qaida Sanctions Regime violated the right to private and family life under Article 8, and the right to an effective remedy under Article 13 of the European Convention on Human Rights (ECHR).

scholarly journals MARRIAGE AND FAMILY LIFE IN THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2014 ◽  
Vol 8 (4) ◽  
pp. 58-63
Author(s):  
Oana Ghiţă
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Private Life ◽  
European Convention ◽  
Public Authorities ◽  
Marriage And Family ◽  
National Courts ◽  
Constitutional Principle ◽  
European Court ◽  
The Right

The article 8 and 12 – European Convention of Human Rights regulate the right to family and private life and, respectively, the right to marriage. These rights have been transposed into the national legislation of the States-members of European Union. The two rights that we are speaking of, which can be found as a constitutional principle and as an ordinary law, tries to reduce the public authorities interference into the private and personal family field. The reality proves that the right to marriage has been broken by the impossibility of the spouses to marry because they can not be divorced. This is the reason why we have two different rights in European Convention: the right to private, family life and the right to marriage. Many European states still have a limited regulation of the reasons for getting the dissolution of marriage. The European Convention has nothing to do with such cases because does not regulates the right to divorce and it would be an interference into the national law. How can a person be married again if he/she doesn’t have the possibility to divorce? In these conditions, can we take the European Convention into consideration as a real instrument of protection for the right to marriage? The first precedent of ECHR jurisprudences limits the infringement of the right to marriage made by the national Courts because of the lack of regulations or a bad interpretation of it.

scholarly journals The Peculiarities of Private and Family Life Protection: The Experience of the European Court of Human Rights

2021 ◽  
Vol 7 (2) ◽  
pp. 39-45
Author(s):  
Oksana MELENKO ◽  
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Private Life ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Essential Questions ◽  
The Public Sphere ◽  
The Uk ◽  
The Right

One of the most vulnerable spheres of life of any individual is his / her private and family life. Therefore, this issue could not slip the attention of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (hereinafter - the Convention) (Council of Europe, 1950). In fact, there have always been some prejudices within this issue, as it is not a secret that accusations of violating an individual’s right to privacy often provoke discussion in the public sphere. For example, when the UK Special Forces eliminated three terrorists (who were no longer resisting) on the territory of Gibraltar (Case of McCann and Others v. the United Kingdom, 1995), the media did not particularly intend to protect the right to life of these criminals. On the other hand, quite a few liberal media sources have resonantly responded to the interference with private life, when a group of stockbrokers and bankers were prosecuted for sadomasochism in a private residence. A similar behavior of the press was observed when discussing the mandatory use of seat belts. However, when considering the issues related to the violation of Article 8 of the Convention (Council of Europe, 1950), it is important to find answers to a few rather essential questions: Has there been an interference with private life under Article 8 § 1 of the Convention (Council of Europe, 1950)? If so, then – Is this interference sufficiently justified in the light of Article 8 § 2 of the Convention (Council of Europe, 1950), namely: Was the interference lawful? If yes, then – Did the interference have a lawful purpose? If yes, then – Was the interference necessary for a democratic society (can it be regarded as an adequate response to socially urgent necessity)? In case there arises a question concerning state’s positive obligations, it will no longer belong to the jurisdiction of paragraph 2, but will touch upon the analysis of the issue whether state’s positive obligation exists at all.

scholarly journals The environmental right in the system of the Convention for the Protection of Human Rights and Fundamental Freedoms – selected aspects

2020 ◽  
Vol 31 (4) ◽  
pp. 1-7
Author(s):  
Anna Dąbrowska
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Council Of Europe ◽  
Environmental Rights ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
A Charge ◽  
The Right

Abstract This paper aims to discuss the place of environmental right in the system of the 1950 European Convention – a fundamental Council of Europe treaty on protection of human rights. Interestingly, it does not explicitly guarantee the environmental right, it needs to be determined; therefore, if individuals can cite violations of this right in their complaints to the European Court of Human Rights – the authority guarding obedience to the European Convention. Analysis of the Strasbourg decisions implies the environmental right can be applied to highly diverse situations. In practice, complainants cite its infringements in connection with violations of the right to private and family life as incorporated in Article 8 of the European Convention. This does not mean, however, every time a complainant cites Article 8 of the European Convention to accuse a state of breaching their environmental rights, the European Court is going to accept such a charge.

Reversibility, Proportionality, and Conflicting Rights

2017 ◽  
Author(s):  
Ian Leigh
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Critical Analysis ◽  
Ad Hoc ◽  
European Convention ◽  
European Court ◽  
Grand Chamber ◽  
The Right

This chapter develops a test (the ‘reversibility test’) for resolving clashing rights cases where limitations of Convention rights for the protection of the ‘rights and freedoms of others’ are at stake. It demonstrates how the reversibility test operates in the context of the conflict between religious autonomy and the right to respect for private and family life under Articles 9 and 8 of the European Convention on Human Rights and why it is preferable to either definitional or ad hoc balancing between these rights. A critical analysis of the European Court of Human Rights’ Grand Chamber decision in Fernández Martinez v. Spain substantiates the utility and strengths of the test and shows how it vindicates the reasoning in the Court’s minority judgment.

scholarly journals The environmental right in the system of the Convention for the Protection of Human Rights and Fundamental Freedoms – selected aspects

2020 ◽  
Vol 31 (4) ◽  
pp. 1-7
Author(s):  
Anna Dąbrowska
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Council Of Europe ◽  
Environmental Rights ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
A Charge ◽  
The Right

Abstract This paper aims to discuss the place of environmental right in the system of the 1950 European Convention – a fundamental Council of Europe treaty on protection of human rights. Interestingly, it does not explicitly guarantee the environmental right, it needs to be determined; therefore, if individuals can cite violations of this right in their complaints to the European Court of Human Rights – the authority guarding obedience to the European Convention. Analysis of the Strasbourg decisions implies the environmental right can be applied to highly diverse situations. In practice, complainants cite its infringements in connection with violations of the right to private and family life as incorporated in Article 8 of the European Convention. This does not mean, however, every time a complainant cites Article 8 of the European Convention to accuse a state of breaching their environmental rights, the European Court is going to accept such a charge.

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