The Permissibility of Limiting Rights and Freedoms in the European and National Legal System Due to Health Protection

The article concerns the permissibility of limiting human rights and freedoms in European and national systems due to the protection of individual and public health. The author's goal was to analyse the current practice of states in the application of human rights limitation clauses in the European system of human rights protection. This is an important issue because the practice of limitation and margin of appreciation enjoyed by the member states of the Council of Europe is subject to scrutiny by means of complaints addressed to the European Court of Human Rights in Strasbourg, which examines the correct application of individual limitation clauses contained in the 1950 Convention. Human health is one of the main prerequisites for which it is possible to limit other human rights and freedoms. In the context of numerous epidemiological threats and natural disasters of a cross-border nature, assessing rights and freedoms becomes one of the most important issues in the field of public international law, constitutional law and public health law. Against the background of existing solutions in the universal system, the practice of the member states of the European Union and the Council of Europe was examined by comparing it with the views of the doctrine and the results of my research.

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Legal Issues of the Implementation of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 in Ukraine

Access to Justice in Eastern Europe ◽

10.33327/ajee-18-4.1-n000044 ◽

2021 ◽

Vol 4 (1) ◽

pp. 8-22

Keyword(s):

Human Rights ◽

Implementation Process ◽

Legal Issues ◽

Council Of Europe ◽

Member States ◽

Human Rights Protection ◽

European Court ◽

Fundamental Freedoms ◽

Protection Of Human Rights ◽

European Standards

This note is devoted to the study and analysis of legal issues of the implementation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention) in Ukraine. The research states that the Convention is one of the first human rights documents based on the principles of ensuring objective standards and providing protection to individuals against abuse of state power. The note proves that the Convention, which is inherently a new generation treaty, not only establishes rights and obligations for states that are traditional for sources of classical international law but also enshrines the obligations of Member States to its citizens, individuals, and legal entities – all those under its jurisdiction. The research stipulates that with its accession to the Council of Europe in 1995, Ukraine not only showed its recognition of the rule of law but also undertook the commitments to ensure human rights and fundamental freedoms, thereby confirming its European democratic choice. In 1997, with the ratification of the Convention, a new stage began in the development of human rights and fundamental freedoms in Ukraine. The note states that Ukraine takes third place among the 47 Member States of the Council of Europe in terms of the number of appeals to the European Court of Human Rights. A negative tendency to increase the submission of complaints by citizens of Ukraine to the European Court of Human Rights is intensifying every year. This indicates that nowadays, the need to achieve maximum compliance of Ukrainian legislation with European standards in the field of human rights and the prevention of their violations remains urgent. The note concludes that at the present stage, among the most problematic issues of Ukraine’s cooperation with the Council of Europe is the reform of the judiciary – in particular, bringing it in line with European norms in accordance with the recommendations of the Councils of Europe institutions, strengthening the fight against corruption, etc. The authors offer a set of proposals and recommendations on the necessity of achieving maximum compliance of Ukrainian legislation with the European standards of the Council of Europe in the field of human rights and prevention of their violations to reduce the number of appeals of Ukrainian citizens to the European Court of Human Rights. The research emphasises that the construction of a democratic legal state and Ukraine’s accession into the European system of human rights protection should exist in reality, as well as be supported by the relevant internal and external policy of the country in regard to human rights, the harmonised system of legislative acts, and the real mechanisms of guarantees of fundamental freedoms. Keywords: Human Rights, European Values, Fundamental Freedoms, Judicial System, European Vector, Legal Instruments, European Court of Human Rights, Implementation Process.

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Providente Asylum vs. the Council of Europe

Global Perspectives on Human Migration, Asylum, and Security - Advances in Human Services and Public Health ◽

10.4018/978-1-5225-2817-3.ch004 ◽

2017 ◽

pp. 68-96

Author(s):

Zafeiris Tsiftzis ◽

Iliana Kynigopoulou

Keyword(s):

European Union ◽

Human Rights ◽

The European Union ◽

Council Of Europe ◽

Huge Amount ◽

Member States ◽

National Policies ◽

European Court ◽

Dublin Regulation

The existing European legislative frameworks seem to be unable to deal with the huge amount of refugees. Greece failed to fulfil its obligations according to the European Union Dublin Regulation and allowed refugees to move on a country of their choice. Therefore, taking into account the difficulties that the European states have to face regarding the increasing flow of refugees, the present chapter reviews the existing jurisprudence of the European Court of Human Rights regarding the protection of refugees, in order to explain whether the CoE Member States have obligation to protect and promote the rights of refugees. Moreover, it focuses on the contribution of the Council of Europe in the harmonisation of national policies towards the treatment of refugees. Finally, it assesses the Greek policies with regard to the treatment of refugees and suggests improvements in accordance with the Council of Europe's recommendations.

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Providente Asylum vs. the Council of Europe

Immigration and the Current Social, Political, and Economic Climate ◽

10.4018/978-1-5225-6918-3.ch033 ◽

2019 ◽

pp. 602-624

Author(s):

Zafeiris Tsiftzis ◽

Iliana Kynigopoulou

Keyword(s):

European Union ◽

Human Rights ◽

The European Union ◽

Council Of Europe ◽

Huge Amount ◽

Member States ◽

National Policies ◽

European Court ◽

Dublin Regulation

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ŽMOGAUS TEISIŲ APSAUGA EUROPOJE IR EUROPOS SĄJUNGOS PRISIJUNGIMAS PRIE ŽMOGAUS TEISIŲ IR PAGRINDINIŲ LAISVIŲ APSAUGOS KONVENCIJOS

Teisė ◽

10.15388/teise.2014..3906 ◽

2015 ◽

Vol 92 ◽

pp. 109-125

Author(s):

Gintarė Pažereckaitė ◽

Jevgenija Vienažindytė

Keyword(s):

European Union ◽

Human Rights ◽

The European Union ◽

Council Of Europe ◽

Human Rights Protection ◽

Rights Protection ◽

Current State ◽

European Court ◽

Fundamental Freedoms ◽

Protection Of Human Rights

Straipsnyje analizuojama žmogaus teisių apsauga Europoje, garantuojama pagal Europos Sąjungos ir Europos Tarybos (konkrečiai – Žmogaus teisių ir pagrindinių laisvių apsaugos konvencijos) teisines sistemas. Nagrinėjama dviejų regioninių teismo institucijų (Europos Žmogaus Teisių Teismo ir Europos Sąjungos Teisingumo Teismo) praktika ir kai kurios žmogaus teisių apsaugos užtikrinimo Europoje problemos. Straipsnyje vertinamas galimas Europos Sąjungos prisijungimo prie Žmogaus teisių ir pagrindinių laisvių apsaugos konvencijos poveikis žmogaus teisių apsaugai Europoje. Analizuojamos Prisijungimo sutarties projekte siūlomos procesinės taisyklės ir galimi jų trūkumai. Galiausiai pateikiamos įžvalgos dėl šiuo metu esamo žmogaus teisių apsaugos lygio Europoje pakankamumo, kurios iš dalies galėtų būti pagrindas vertinti Europos Sąjungos prisijungimo prie Žmogaus teisių ir pagrindinių laisvių apsaugos konvencijos poreikį. The article analyses human rights protection in Europe guaranteed in the legal systems of the European Union and the Council of Europe (i.e. the Convention for the Protection of Human Rights and Fundamental Freedoms). It examines case law of two regional judicial institutions (European Court of Human Rights and Court of Justice of the European Union) and certain problems of human rights protection in Europe. The article also assesses what impact the European Union accession to the Convention for the Protection of Human Rights and Fundamental Freedoms could have on the human rights protection in Europe; and analyses rules and procedures proposed in the draft Accession agreement, and their possible flaws. Finally, views on the current state of human rights protection in Europe are presented, which in a way gives a basis to question the need for the European Union to accede to the Convention.

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Castaño avoids a clash between the ECtHR and the CJEU, but erodes Soering. Thinking human rights transnationally

New Journal of European Criminal Law ◽

10.1177/2032284420979746 ◽

2020 ◽

pp. 203228442097974

Author(s):

Sibel Top ◽

Paul De Hert

Keyword(s):

European Union ◽

Human Rights ◽

Union Member ◽

The European Union ◽

Member States ◽

Court Of Justice ◽

European Court ◽

Criminal Matters ◽

European Union Member States

This article examines the changing balance established by the European Court of Human Rights (ECtHR) between human rights filters to extradition and the obligation to cooperate and how this shift of rationale brought the Court closer to the position of the Court of Justice of the European Union (CJEU) in that respect. The article argues that the ECtHR initially adopted a position whereby it prioritised human rights concerns over extraditions, but that it later nuanced that approach by establishing, in some cases, an obligation to cooperate to ensure proper respect of human rights. This refinement of its position brought the ECtHR closer to the approach adopted by the CJEU that traditionally put the obligation to cooperate above human rights concerns. In recent years, however, the CJEU also backtracked to some extent from its uncompromising attitude on the obligation to cooperate, which enabled a convergence of the rationales of the two Courts. Although this alignment of the Courts was necessary to mitigate the conflicting obligations of European Union Member States towards both Courts, this article warns against the danger of making too many human rights concessions to cooperation in criminal matters.

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Abortion for Foetal Abnormalities in Ireland; The Limited Scope of the Irish Government’s Response to the A, B and C Judgment

European Journal of Health Law ◽

10.1163/15718093-12341260 ◽

2013 ◽

Vol 20 (2) ◽

pp. 117-143 ◽

Cited By ~ 2

Author(s):

Stephen Donoghue ◽

Claire-Michelle Smyth

Keyword(s):

Human Rights ◽

European Convention ◽

Legal Abortion ◽

Member States ◽

Non Invasive ◽

European Court ◽

Margin Of Appreciation ◽

Controversial Topic ◽

The Government ◽

Limited Scope

Abstract Abortion has been a controversial topic in Irish law and one which the Government has been forced to address following the decision of the European Court of Human Rights in A, B and C v. Ireland. The Working Group established to make recommendations have specifically been instructed to deal only with the issues raised in the A, B and C judgment and legislate on the basic of the ‘X case’. This restricted approach calls for legalisation of abortion only where the life of the mother is at risk, a position unique only to Ireland and Andorra within Europe. The vast majority of member states to the European Convention on Human Rights allow for legal abortion on the basis of foetal abnormality and with this emerging consensus the margin of appreciation hitherto afforded by the European Court to member states is diminishing. The advancement and availability of non-invasive genetic tests that can determine foetal abnormalities together with the ruling in R. R. v. Poland leaves Ireland in a precarious position for omitting any reference to foetal abnormalities in any proposed legislation.

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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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1 The Court Over Sixty Years

The European Court of Human Rights ◽

10.1093/law/9780198849643.003.0001 ◽

2020 ◽

Author(s):

Nussberger Angelika

Keyword(s):

Human Rights ◽

European Convention ◽

Peace Treaty ◽

Member States ◽

Human Rights Protection ◽

Rights Protection ◽

European Court ◽

Definition Of ◽

The Individual ◽

Violent Conflicts

This introductory chapter provides a background of the European Convention on Human Rights (ECHR), a multilateral treaty based on humanism and rule of law. Similar to the—albeit non-binding—Universal Declaration of Human Rights (UDHR), the ECHR is a document that marks a change in philosophy and gives a new definition of the responsibility of the State towards the individual. It fixes basic values in times of change and paves the way towards reconciliation in Europe. Unlike in a peace treaty, not all wartime enemies participate in its elaboration, but, one by one, all the European States accede to it, signalling their consent to the values fixed by a small community of States in the early 1950s. Seven decades later, forty-seven European States have ratified the Convention. Admittedly, the new start based on common values could not prevent the outbreak of violent conflicts between Member States. At the same time, the resurgence of anti-democratic tendencies could not be successfully banned in all Member States, but such tendencies could be stigmatized as grave human rights violations in binding judgments of the European Court of Human Rights (ECtHR). Thus, it is not surprising that the European model of human rights protection has been attractive and inspirational for other parts of the world. Nevertheless, there was and is a debate in some Member States to withdraw from the Convention as the Court’s jurisprudence is seen to be too intrusive on national sovereignty.

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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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Contradictions in Frontex Operations: the Push-back

Magyar Rendészet ◽

10.32577/mr.2020.4.5 ◽

2020 ◽

Vol 20 (4) ◽

pp. 85-92

Author(s):

Gábor Kemény ◽

Michal Vít

Keyword(s):

European Union ◽

Human Rights ◽

Influencing Factors ◽

Fundamental Rights ◽

Organisational Structure ◽

The European Union ◽

Council Of Europe ◽

Member States ◽

Eu Member States ◽

The Eu

The aim of the paper is to introduce the legal misfits between the standards of human rights as stated by the European Union and the Council of Europe and practical day to day experience related to EU member states. For this purpose, the article focuses on political and legal assessment of the so-called pushbacks at the Greek-Turkish external border and introduces the influencing factors, such as the various interpretation of the legislation, differences in the organisational structure and values. Authors concluded that these factors are endangering the fulfilment of the fundamental rights and the efficiency of the border protection thus the security of the EU and its member states.

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