scholarly journals Psychiatric Commitment: Sixty Years Under the Scrutiny of the European Court of Human Rights

2021 ◽  
Vol 12 ◽  
Author(s):  
Gérard Niveau ◽  
Camille Jantzi ◽  
Tony Godet

Background and Aims: In the field of mental health, the fundamental right to liberty is a point of tension between the practice of psychiatric commitment on the one hand and the universal concept of human rights on the other. The European Court of Human Rights (ECtHR) is a very specific means of safeguarding human rights because it allows an individual to not only assert their rights but also compel a state to bring its legislation into conformity with the principles of the European Convention on Human Rights. The aim of this study was to gather the case-law of the ECtHR on psychiatric commitment over the last 60 years and to determine how this case-law has affected national legislation and therefore psychiatric practice.Methods: Jurisprudence data were collected from the HUDOC ECtHR database, and the direct effects of the ECtHR judgements on the legislations of the countries concerned were collected from the HUDOC EXEC database of the Council of Europe. The case-law of the Court included 118 judgements and 56 decisions and concerned 31 of the 45 countries that have ratified the Convention.Results: This study therefore showed a direct effect of the Court's case-law on the legislation on psychiatric commitment in the various countries that have ratified the Convention. It was also possible to detect an indirect effect of this case-law through the directives of international institutions such as the directives of the Committee of Ministers of the Council of Europe concerning respect for people with mental disorders.Conclusions: The ECtHR case-law therefore has a major influence on the psychiatric practice in all Council of Europe countries.

Author(s):  
Nadja Braun Binder ◽  
Ardita Driza Maurer

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.


Author(s):  
Lara Redondo Saceda

El presente trabajo pretende analizar el sistema de restricciones al ejercicio de los derechos previsto en los artículos 8 a 11 del Convenio Europeo de Derechos Humanos. Así, el objetivo principal es reflexionar sobre la incidencia de estas cláusulas de restricción, su desarrollo jurisprudencial por parte del Tribunal Europeo de Derechos Humanos y su significado en la construcción del sistema de derechos humanos del Consejo de Europa.This paper is intended to analyse the system of restrictions on the exercise of rights provided by articles 8 to 11 of the European Convention on Human Rights. Thus, the principal aim is reflecting on the impact of these restriction clauses, their case-law development by the European Court of Human Rights and their meaning on the construction of the Council of Europe Human Rights System.


2021 ◽  
Vol 1 ◽  
pp. 25-36
Author(s):  
Sára Kiššová

Whistleblower protection in the European Union is undergoing significant developments. The new Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting breaches of Union law sets a minimum standard for the protection of whistleblowers. It is awaiting implementation in Member States' national law by December 2021. However, a certain level of protection is also guaranteed by the European Court of Human Rights case law principles. Reports of illegal activities provided from close internal sources can strengthen the protection of the EU's financial interests. Adequate protection is needed to prevent retaliation against whistleblowers. As the deadline for transposing this directive approaches, the article aims to analyse the Directive 2019/1973 and compare it with the protection guaranteed by Article 10 of the European Convention on Human Rights.


2020 ◽  
Vol 20 (2) ◽  
pp. 333-360
Author(s):  
Jonathan Collinson

Abstract This article rationalises the case law of the European Court of Human Rights under Article 8 of the European Convention on Human Rights in deportation cases involving children. The Court engages in a balancing exercise between the right to family life of the deportee’s family on the one side, and the public interest in deportation on the other. This article expands on existing case law analysis by suggesting that in deportation cases, the Court considers Article 8 as a form of commonly held right, rather than an individual right held by one member of the family. Furthermore, the balance is argued to be constructed as a relationship between two factors on both sides, rather than of a sole factor on either side as being determinative. This article concludes that the best interests of the child (one of the ‘Üner criteria’) is not adequately reflected in the Court’s deportation decision-making practice.


Author(s):  
Nussberger Angelika

This chapter evaluates the efficacy of the European Court of Human Rights (ECtHR). On the one hand, the European Convention on Human Rights (ECHR) system has had an amazing success in building up a constitutional order in Europe defining common values. Significant changes in the laws of all Member States were made; individual human rights violations were effectively remedied. On the other hand, Europe is far from being a human rights paradise. Even an average observer of daily news cannot avoid having the impression that in some States even the most basic human rights are not effectively guaranteed and that some so-called ‘democracies’ hide their disdain for individual rights behind lip services and promises to abide by the Convention, but in reality use membership in the Council of Europe only as a tool in foreign relations. The chapter then identifies the roles played by the Committee of Ministers, NGOs, and the Court in executing judgments on human rights violations. Article 46 para 1 ECHR obliges the parties to abide by the final judgment of the Court in any case to which they are parties. In line with the general rules of State responsibility, the Court interprets the obligations arising out of Convention violations as threefold: ‘to cease the breach, to make reparation for it and ensure non-repetition of similar violations in the future’.


2012 ◽  
Vol 14 ◽  
pp. 381-418 ◽  
Author(s):  
Dean Spielmann

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?


2016 ◽  
Vol 24 ◽  
pp. 14 ◽  
Author(s):  
Kerttu Mäger

The paper was written to analyse the enforceability of the judgements of the European Court of Human Rights in Russia, particularly in light of recent amendments to the Law on the Constitutional Court and relevant case law of the Constitutional Court of Russia. Article 46 of the European Convention on Human Rights, obliging member states to execute the judgements of the European Court of Human Rights, does not leave room for ‘cherry-picking’ in enforcing the judgements. However, the Constitutional Court has suggested that Russian authorities should indeed engage in cherry-picking and may refuse to enforce judgements that are not in accordance with the Russian Constitution as interpreted by the Constitutional Court. In December 2015, the Russian parliament amended the Law on the Constitutional Court so as to empower said court to declare judgements of the European Court of Human Rights unenforceable when implementation would be in conflict with the Constitution of Russia. The paper discusses the background of these developments and alternatives for overcoming the conflict between domestic legislation and the instruments of the Council of Europe.


2021 ◽  
Vol 13 (4) ◽  
pp. 33-51
Author(s):  
Agno Andrijauskaito

The principle of legality permeates the entire legal system based on the rule of law. It is especially well-pronounced in criminal law. However, what are its content, scope and implications when it comes to prescribing and punishing for offences which are supposedly less reprehensible, namely – administrative offences? How precisely should they or the sanctions that they stipulate be defined in legal provisions? Furthermore, is there any room for interpretation while imposing sanctions by public bodies? This article seeks to delve into these vexed questions by examining the relationship between the principle of legality and administrative punishment within the framework of the Council of Europe ('CoE') and the implications stemming therefrom. This will be done by dissecting the rationale and notion of this principle in the normative sources of the CoE with a special emphasis on Article 7 of the European Convention on Human Rights and its (autonomous) application in the case law of the European Court of Human Rights as well as by identifying the shortcomings of the current perception of the legality principle in the context of administrative punishment.


Author(s):  
Ulrich Stelkens ◽  
Agnė Andrijauskaitė

This chapter examines the sources of the pan-European principles of good administration developed by the Council of Europe (CoE). It maps the degree of concretization these principles have reached, and how far they have spread concerning the classical and modern topics of administrative law. It scrutinizes the Statute of the CoE, the European Convention on Human Rights, and the (relevant) case law of the European Court of Human Rights, other CoE conventions (such as the CoE Convention on Data Protection, the Convention on Access to Official Documents, and the European Charter of Local Self Government), and the recommendations and other soft law on good administration of the Committee of Ministers and other institutions of the CoE. The chapter concludes that the principles deriving from these sources should not be considered as a loose bundle of various rules in administrative matters but instead form a ‘coherent whole’.


2019 ◽  
Vol 15 (1) ◽  
pp. 104-133 ◽  
Author(s):  
Joost Sillen

Internal judicial independence as a new element of the case law of the Strasbourg Court on Article 6 of the European Convention on Human Rights – The Court has only found violations of internal judicial independence in cases against former communist countries – Relevance of the case law for other member states of the Council of Europe – Internal judicial independence as part of the requirement of an impartial tribunal? – Importance of the independence of the individual judge


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