scholarly journals The Rise of Hermeneutics in Human Rights Interpretation in the Case-Law of the ECtHR and the Domestic Courts

2021 ◽  
Vol 0 (70) ◽  
pp. 91-118
Author(s):  
Murat Erdoğan
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Domestic Courts

The European Court of Human Rights and Removal of Long-term Migrants

2021 ◽  
pp. 159-174
Author(s):  
Başak Çalı ◽  
Stewart Cunningham
Keyword(s):  
Human Rights ◽  
Migration Policy ◽  
Case Law ◽  
Unique Position ◽  
European Court ◽  
Domestic Courts ◽  
Central Argument ◽  
The Right ◽  
Dual Commitment

This chapter analyses the general interpretative outlook of the European Court of Human Rights (ECtHR) on the rights of long-term migrants facing deportation. It shows that this outlook is strongly marked by recognising the primacy of state discretion in the field of migration policy, while at the same time ensuring that long-term migrants are given access to the protection of the Convention. The chapter then surveys the case law of the ECtHR related to the deportation of long-term migrants, identifying the factors that the Court employs in balancing its dual commitment to states and long-term migrants. The central argument of the chapter is that the Court’s approach to the right to stay of long-term migrants falls short of adequately recognising the unique position of long-term migrants and is unable to differentiate between those who have lived for lengthy periods in host states and any other category of alien in those states. The Court’s recent emphasis on principled deference to domestic courts in balancing the rights of long-term migrants and host states further undercuts any future progressive developments in the field of right to stay for long-term migrants.

scholarly journals State Practice as Element of Customary International Law: A White Knight in International Criminal Law?

2019 ◽  
Vol 20 (5) ◽  
pp. 784-804
Author(s):  
Harmen van der Wilt
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
International Criminal Law ◽  
Customary International Law ◽  
International Criminal Tribunals ◽  
Domestic Courts ◽  
State Practice

Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.

scholarly journals Substantial Violation of Human Rights and Freedoms as a Prerequisite for Inadmissibility of Evidence

Justicia ◽  
2021 ◽  
Vol 26 (39) ◽  
pp. 47-56
Author(s):  
Serhii Yevhenovych Ablamskyi ◽  
Liudmyla Volodymyrivna Havryliuk ◽  
Valentyna Georgievna Drozd ◽  
Olena Volodymyrivna Nenia
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Case Law ◽  
Criminal Proceedings ◽  
Scientific Methods ◽  
Domestic Courts ◽  
General Scientific

Objective: The aim of the article is to analyze the various legal and theoretical provisions related to the determination of legal content of the concept of finding evidence inadmissible due to substantial violation of human rights and freedoms. Method: The authors use general scientific and special methods that enable to obtain scientifically sound conclusions and proposals. In particular, scientific methods, such as dialectical, comparative-legal, system-structural, generalization and logical, are applied. Results: The problematic issues of the procedure for finding evidence inadmissible due to substantial violation of human rights and freedoms in the criminal proceedings of Ukraine are studied. Some essential violations in collecting evidence by the prosecution are under focus. The ECHR’s case-law with regard to procedure for finding evidence inadmissible is analyzed. The implementation of the doctrine of "fruit of the poisonous tree" and specificity of its application to direct and derivative evidence by domestic courts and the case law of the ECHR is considered. Conclusions: The authors argue that the investigator is required to comply with the procedure for investigative actions prescribed by the provisions of the CPC of Ukraine in order to ensure human rights and freedoms. The analysis of the application of provisions of the CPC of Ukraine and the ECHR’s case law regarding the issue raised enables to formulate sound conclusions.

scholarly journals ‘To me, fair friend, you can never be old’, William Shakespeare, ‘Sonnet 104’: ECHR at 70 Rudolf Bernhardt Lecture, 202

2021 ◽  
Vol 81 (4) ◽  
pp. 895-916
Author(s):  
Başak Çalı
Keyword(s):  
Human Rights ◽  
William Shakespeare ◽  
Case Law ◽  
European Convention ◽  
European Court ◽  
Domestic Courts ◽  
The Rich ◽  
Good Proxy ◽  
Mature Part ◽  
Over Time

This article undertakes a survey of the changes in the structure of the interpretive doctrines of the European Court of Human Rights (the Court) over time in an exploration of the aging of the European Convention on Human Rights (ECHR or the Convention) on its 70th anniversary. It argues that the Court’s interpretive doctrines that seek to give due deference to national rights traditions, canons and institutions have become increasingly pervasive in the Court’s procedural and substantive case law in the last two decades. This, in particular, has come at a loss for interpretative doctrines that interpret the Convention as a practical and effective living pan-European instrument. This argument is built in four parts. First it offers a defence of why a study of the interpretive doctrines of the Court over time is a good proxy for studying the ECHR’s ageing process. In the second part, it discusses the rich doctrinal forms of due deference and effective interpretation in the case law of the Court – both young and mature. Part three explains how the judicialisation and expansion of the European human rights system in late 1990 s transitioned to a more heightened and sophisticated focus on due deference doctrines in the Court’s case law. Finally, part four examines whether the recent judicial innovations under the Court’s Article 18 case law and the widely celebrated success of increased ownership of the Convention by domestic courts can act as counter points to the argument that the effective interpretation principle has suffered a loss as the Convention has aged, concluding that none of this may offset the fact that the Convention at 70 is more conservative in spirit than its younger self.

scholarly journals Investigations on the Use of Limitations to Freedom of Religion or Belief in Brazil

2020 ◽  
Vol 15 (1-2) ◽  
pp. 77-95
Author(s):  
Thiago Alves Pinto ◽  
Rodrigo Vitorino Souza Alves
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Freedom Of Religion ◽  
Public Officials ◽  
Human Rights Treaties ◽  
Domestic Legislation ◽  
Domestic Courts ◽  
Low Levels ◽  
The Right ◽  
International Instruments

Abstract The present article analyses cases from top Brazilian courts and has received contributions from several scholars, practitioners, and public officials to better understand the use of limitations to freedom of religion or belief in the country. The Brazilian Constitution provides for the right to freedom of religion or belief as a fundamental right, and other domestic legislation regulate the right, including those implementing international human rights treaties that Brazil has ratified. These laws are easily accessible. Nevertheless, domestic courts seldom rely on such international instruments or the case-law of international bodies in their judgments. Therefore, although these instruments are in force in Brazil, domestic courts do not expressly use or refer to the clauses of permissible limitations of the relevant international and regional human rights instruments, creating a scenario with low levels of legal certainty for those seeking the protection of the right to freedom of religion or belief.

scholarly journals The networks of human rights and climate change: The State of the Netherlands v Stichting Urgenda, Supreme Court of the Netherlands, 20 December 2019 (19/00135)

2020 ◽  
Vol 22 (3) ◽  
pp. 227-234
Author(s):  
Ole W. Pedersen
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
The Netherlands ◽  
Supreme Court ◽  
Case Law ◽  
Case Note ◽  
Human Rights Law ◽  
Environmental Rights ◽  
Domestic Courts ◽  
Dutch Supreme

Climate change litigators are increasingly relying on a range of different jurisdictional avenues and legal regimes. The recent Urgenda decision by the Dutch Supreme Court provides a surprisingly rare snapshot of the relevance of human rights law  to climate change litigation. Focusing on the Supreme Court's reliance on the environmental rights case law from the ECHR, this case note argues that climate change and human rights adjudications takes the form of an adjudicatory network. This network creates spaces for domestic courts to develop contingent responses to emerging climate change claims.

Belgian Courts and the Immunity of International Organizations

2014 ◽  
Vol 10 (2) ◽  
pp. 464-504
Author(s):  
Eric De Brabandere
Keyword(s):  
Human Rights ◽  
International Organizations ◽  
Dispute Settlement ◽  
Case Law ◽  
International Organization ◽  
European Convention ◽  
Domestic Courts ◽  
Alternative Means ◽  
The Right ◽  
Right Of Access

The functional underpinning of institutional immunity remains crucial today in order to guarantee the independent fulfilment by the organization of its mandate. Despite this relatively firmly established principle, domestic courts and tribunals have shown in recent cases that they are very critical of the idea of the absolute character of international organization immunity, not the least in relation to the right of access to court, guaranteed inter alia by Article 6 of the European Convention on Human Rights. Belgium is host to between 50 and 100 international organizations or liaison offices of international organizations, most of which are located in Brussels. For that reason, the number of potential disputes involving an international organization in Belgium is important. This paper gives an overview of the official Belgian policy in respect of international organization immunity, and analyses relevant Belgian case-law that considers the rationale behind the grant of privileges and immunities to international organizations. It then considers the source of an international organization’s immunity, the scope of that immunity, and the obligation to provide for alternative means of dispute settlement and the individual’s right of access to court.

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 Searching for a Reference: Using Automated Text Analysis to Study Judicial Compliance

2018 ◽  
Vol 12 (2) ◽  
pp. 131-160
Author(s):  
Katarina Šipulová ◽  
Hubert Smekal ◽  
Jozef Janovský
Keyword(s):  
Human Rights ◽  
Text Analysis ◽  
Single Case ◽  
Case Law ◽  
European Court ◽  
Domestic Courts ◽  
Automated Text Analysis ◽  
Cherry Picking ◽  
Research Questions

The concept of judicial compliance has attracted plenty of attention in the last two decades. Yet, despite the growing scholarly interest, important research questions remain largely unresolved. This is partly due to the persistent use of unsystematic research, built on the cherry picking of cases. The content of only a few well-known judgments has been thoroughly examined, and the rest remains largely ignored by the legal scholarship. The aim of this article is to introduce a sketch of a new three-level approach for improving research on judicial compliance in a multi-level arena. We show how the use of automated text analysis in combination with more traditional legal methods might shed more light on the concept of judicial compliance and judicial dialogues. We explain the procedure of the automated collection of data and their coding and also point out the risks of using automated text analysis when studying judicial compliance. The approach is demonstrated on a single case study of the use of European Court of Human Rights rulings by Czech apex courts. This study assesses how often and in what way the domestic courts engage with the European Court of Human Rights case law.

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