scholarly journals An exercise in detachment: the Council of Europe and sexual minority asylum claims

2021 ◽  
Author(s):  
Nuno Ferreira
Keyword(s):  
Human Rights ◽  
Sexual Minority ◽  
European Convention ◽  
Strong Line ◽  
Sexual Diversity ◽  
Council Of Europe ◽  
International Protection ◽  
Law And Policy ◽  
European Court ◽  
Degrading Treatment

This contribution explores how the Council of Europe (CoE) – and the European Court of Human Rights (Strasbourg Court), in particular – have addressed the increasing number and complexity of applications involving sexual minority asylum claims (SMACs). The law and policy produced by the CoE and the jurisprudence of the Strasbourg Court immensely influence how domestic authorities address SMACs, so it is crucial to have a thorough understanding of this framework. Indeed, the CoE has acquired a progressively significant role in the field of asylum. Although it does not have an asylum policy as such, several of its bodies have taken a noteworthy role in this field, such as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The Strasbourg Court, above all, along with the now extinct European Commission of Human Rights, developed a strong line of jurisprudence that applies the European Convention on Human Rights (ECHR) to asylum claimants, despite the ECHR not possessing any norm explicitly related to asylum. More specifically, the Strasbourg Court was the first judicial instance at a European level to decide on cases relating to SMACs. It has so far dealt with at least 23 separate cases of asylum on grounds of sexual orientation. Many of these cases led to contentious and inadequate decisions, such as the 2014 judgment in M.E. v. Sweden, which gave legitimacy to the idea that applicants can be sent back to their countries of origin and asked to be ‘discreet’ about their sexuality. This approach reflects a worrying detachment from the realities of sexual minorities in many countries around the world and from their experiences when claiming international protection in Europe. This contribution thus critiques the CoE policy and Court’s jurisprudence in this field, whilst advancing policy and legal recommendations that can adequately address the socio-cultural and sexual diversity of asylum claimants from a queer intersectional perspective.

scholarly journals THE COUNCIL OF EUROPE AND ITS MECHANISMS FOR PROTECTING AND GUARANTEEING HUMAN RIGHTS

2016 ◽  
Vol 10 (2) ◽  
pp. 42-52
Author(s):  
Tudor Tanasescu
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Social Rights ◽  
Council Of Europe ◽  
Preventive Control ◽  
Intergovernmental Organization ◽  
European Committee ◽  
European Court ◽  
Degrading Treatment ◽  
Efficient Mechanisms

The Council of Europe represents the main regional/European international intergovernmental organization in which the most efficient mechanisms for guaranteeing and protecting human rights have been initiated and developed.The mechanisms implemented by this organization, aiming to protect and guarantee human rights, established through the conventional judicial tools adopted by the Council of Europe are: The European Court for Human Rights (jurisdictional mechanism), established by the European Convention on Human Rights, the conventional non-jurisdictional mechanisms for monitoring, as well as the system of regularly reporting and that of the collective complaints, employed by the European Committee for social rights, created based on the European Social Charter and its two protocols of 1991 and 1995, and the preventive control based on inquiries carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, based on the European Convention of the Prevention of Torture.Added to these some extra-conventional mechanisms are considered, such as The European Commission against racism and intolerance and The Commissioner for Human Rights at the Council of Europe.

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.

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

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.

Bringing People Down

2021 ◽  
Vol 24 (3) ◽  
pp. 433-466
Author(s):  
John Vorhaus
Keyword(s):  
Health Care ◽  
Human Rights ◽  
Corporal Punishment ◽  
European Convention ◽  
Human Beings ◽  
European Court ◽  
The Status ◽  
Relational Concept ◽  
Degrading Treatment ◽  
As If

Under Article 3 of the European Convention on Human Rights, degrading treatment and punishment is absolutely prohibited. This paper examines the nature of and wrong inherent in treatment and punishment of this kind. Cases brought before the European Court of Human Rights (the Court) as amounting to degrading treatment and punishment under Article 3 include instances of interrogation, conditions of confinement, corporal punishment, strip searches, and a failure to provide adequate health care. The Court acknowledges the degradation inherent in imprisonment generally, and does not consider this to be in violation of Article 3, but it also identifies a threshold at which degradation is so severe as to render impermissible punishments that cross this threshold. I offer an account of the Court’s conception of impermissible degradation as a symbolic dignitary harm. The victims are treated as inferior, as if they do not possess the status owed to human beings, neither treated with dignity nor given the respect owed to dignity. Degradation is a relational concept: the victim is brought down in the eyes of others following treatment motivated by the intention to degrade, or treatment which has a degrading effect. This, so I will argue, is the best account of the concept of degradation as deployed by the Court when determining punishments as in violation of Article 3.

scholarly journals The legal meaning of the terms "torture", "inhuman treatment or punishment", "degrading treatment or punishment" and their distinction in the decisions of the European commission of human rights and the European court of human rights

2021 ◽  
pp. 26-33
Author(s):  
Khrystyna YAMELSKA
Keyword(s):  
Human Rights ◽  
European Commission ◽  
Criminal Code ◽  
European Convention ◽  
European Court ◽  
Convention Against Torture ◽  
Degrading Treatment ◽  
The Individual ◽  
Jus Cogens ◽  
Legal Meaning

The paper reveals the legal meaning of the terms "torture", "inhuman treatment or punishment", "treatment or punishment that degrades human dignity". A distinction between these concepts is made on the examples of court decisions of European courts, taking into account the individual circumstances of each case. The genesis of the origin of the above concepts is investigated through a prism of the decisions of the European Commission of Human Rights and the European Court of Human Rights. The paper reveals the absolute nature of the "jus cogens" norm of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The author proposes to modernize the Ukrainian criminal legislation on the reception of the position of the European Court of Human Rights on the delimitation of these concepts. In contrast to the European convention regulation of ill-treatment, torture, inhuman or degrading treatment or punishment, the author notes that the Ukrainian legislation regulates this issue quite succinctly. The Article 127 of the Criminal Code of Ukraine provides a definition only of torture, which in essence coincides with the definition of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the position of the European Court of Human Rights. The paper notes that the practice of Ukrainian courts shows that a distinction (similar to that provided by the European Court of Human Rights) is not implemented.

I respingimenti in mare di migranti alla luce della Convenzione europea dei diritti umani

2009 ◽  
pp. 591-607
Author(s):  
Alfredo Terrasi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
North African ◽  
European Court ◽  
Degrading Treatment ◽  
Migration Flows ◽  
High Seas

- Italian authorities have recently undertaken a new policy to face migration flows from north african coasts. Since May, 6th 2009 Italian coastguard and financial police vessels have intercepted a large number of boats carrying migrants and returned them to Libya, in force of a readmission agreement between Italy and Libya. These operations, even if they take place on the high seas, have to comply with the European Convention for Human Rights, considering that the migrants fall under jurisdiction of Italian authorities within the meaning of art. 1 of the Convention. In particular, on the basis of the European Court of Human Rights case law, it can be argued that returning migrants to Libya, as long as they can be exposed to torture or inhuman and degrading treatment, is prohibited by art. 3. Moreover, art. 4 or the Fourth Protocol prohibits the collective expulsions of aliens. Notwithstanding, it's uncertain whether forcible return of aliens is consistent with the latter provision considering that the European Court requires that aliens ‘leave the country' in order to apply art. 4. In the end the praxis of Italian authorities is inconsistent with the Convention non-refoulement obligation deriving from art. 3.

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

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.

22. Europe

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.

The ECHR, the EU and the Weakness of Social Rights Protection at the European Level

2011 ◽  
Vol 12 (10) ◽  
pp. 1833-1861 ◽  
Author(s):  
Roderic O'Gorman
Keyword(s):  
Human Rights ◽  
Legal Status ◽  
European Convention ◽  
Social Rights ◽  
Political Rights ◽  
Council Of Europe ◽  
Rights Protection ◽  
European Court ◽  
Reporting Mechanism ◽  
The Eu

Ever since the conceptual division of rights into three separate categories; civil, political and social, the legal status of social rights has been controversial. This divergence in views is illustrated by the decision of the Council of Europe in 1950 to protect civil and political rights through a judicial format where adherence to the European Convention on Human Rights (ECHR) was ensured by the European Court of Human Rights, whereas social rights were addressed separately through the European Social Charter (“Social Charter”), with merely a reporting mechanism to the European Committee of Social Rights.

Expanding Competences by Judicial Lawmaking: The Pilot Judgment Procedure of the European Court of Human Rights

2011 ◽  
Vol 12 (5) ◽  
pp. 1231-1260 ◽  
Author(s):  
Markus Fyrnys
Keyword(s):  
Human Rights ◽  
Eastern Europe ◽  
Central And Eastern Europe ◽  
Institutional Design ◽  
European Convention ◽  
Current Debate ◽  
Council Of Europe ◽  
European Court ◽  
Judicial Lawmaking

The institutional design of the Strasbourg system that has evolved over the last decades is an expression of contemporary debates surrounding the system's very nature and purpose. The current debate primarily bears on the range of choices that the Council of Europe faces in adapting to the changes in Europe, which largely have been caused by its expansion to cover nearly all post-Communist States of Central and Eastern Europe since the 1990s. This expansion, and with it the extension of the scope of the European Convention on Human Rights (the Convention) to now more than 800 million people in forty seven countries, has confronted the European Court of Human Rights (the Court) with a far broader range of human rights problems than had previously existed. By 2010, the number of pending cases had risen to 139,650 but the Court's adjudicative capacity remains limited.

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