Chapter 7 Rights Beyond the State. The European Union and the European Court of Human Rights

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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Ferreira, Nuno and Venturi, Denise (2017) Tell me what you see and I’ll tell you if you’re gay: analysing the advocate general’s opinion in case C-473/16, F v Bevándorlási és Állampolgársági Hivatal.

10.31235/osf.io/rtzgu ◽

2018 ◽

Cited By ~ 1

Author(s):

Nuno Ferreira ◽

Denise Venturi

Keyword(s):

European Union ◽

Human Rights ◽

Public Knowledge ◽

Right Wing ◽

The European Union ◽

European Institutions ◽

Court Of Justice ◽

Hungarian Society ◽

European Court ◽

Poor Treatment

Hungary has been in the spotlight for all the wrong reasons for quite a while. From legislation targeting ‘foreign-operating universities’ to border walls to keep refugees from entering Hungarian territory, the populist right-wing government of Viktor Orban has been sparking outrage in many sectors of Hungarian society, and the European institutions. The most recent reason for alarm again relates to migration and refugees, an area of widespread criticism of Hungarian authorities. Building on extremely hostile policies towards refugees that have been admonished by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), Hungarian authorities now intend to resort to highly dubious means to assess the applications of individuals claiming asylum on grounds related to their sexual orientation. It was already public knowledge that this category of claimants was subjected to poor treatment by the Hungarian authorities, but recent events suggest that the authorities have reached a new low.

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Refl ections on the Principle of Equal Treatment in EU Law and the Jurisprudence of the Court of Justice of the European Union and the European Convention on Human Rights

Acta Universitatis Sapientiae Legal Studies ◽

10.47745/ausleg.2020.9.1.01 ◽

2020 ◽

Vol 9 (1) ◽

pp. 5-23

Author(s):

Marija Daka

Keyword(s):

European Union ◽

Human Rights ◽

Equal Treatment ◽

European Convention ◽

Eu Law ◽

The European Union ◽

European Union Law ◽

Court Of Justice ◽

European Court ◽

Complex Approach

The paper presents some of the most relevant aspects of European nondiscrimination law established th rough European Union law and the European Convention on Human Rights, looking also at the evolution of the norms and milestones of case-law on equal treatment within the two systems. The paper gives an overview of the non-discrimination concept as interpreted by the Court of Justice of the European Union and by the European Court of Human Rights. We examine the similar elements but also give insight into conceptual differences between the two human rights regimes when dealing with equal treatment. The differences mainly stem from the more complex approach taken by EU law although, based on analysed norms, cases, and provisions, the aspects of equal treatment in EU law are largely consistent with the practice of the ECtHR. Lastly, the paper briefl y places the European non-discrimination law within the multi-layered human rights system, giving some food for thought for the future potential this concept brings.

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Fundamental Rights Protection between Strasbourg and Luxembourg

Preventing and Resolving Conflicts of Jurisdiction in Eu Criminal Law: A European Law Institute Instrument ◽

10.1093/oso/9780198829119.003.0009 ◽

2018 ◽

Author(s):

Katalin Ligeti

Keyword(s):

European Union ◽

Human Rights ◽

Fundamental Rights ◽

Individual Rights ◽

Eu Law ◽

The European Union ◽

Rights Protection ◽

European Court ◽

Charter Of Fundamental Rights ◽

Grand Chamber

Since long before the entry into force of the Charter of Fundamental Rights of the European Union (CFREU), the two highest courts in Europe, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have sought to develop their respective jurisprudence in such a way as to ensure a strong protection of individual rights, whilst avoiding clashes between the decisions taken in Luxembourg and Strasbourg. An important statement in this regard is provided by the Bosphorus judgment, in which the Grand Chamber of the ECtHR recognised the existence of a presumption of equivalent protection of fundamental rights under EU law. The presumption is rebuttable, but expresses the trustful attitude (and a certain degree of deference) of Strasbourg towards the ability of EU law (and of the CJEU) to protect Convention rights.

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6. Finding cases

10.1093/he/9780192893642.003.0006 ◽

2021 ◽

pp. 114-136

Author(s):

Emily Finch ◽

Stefan Fafinski

Keyword(s):

European Union ◽

Human Rights ◽

The European Union ◽

Court Of Justice ◽

European Court

This chapter presents the skills needed to find cases. It first explains the meanings of case citations before moving on to discuss how to locate domestic cases. It then describes how to find decisions of the Court of Justice of the European Union, the General Court, and the European Court of Human Rights.

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5. Finding cases

Legal Skills ◽

10.1093/he/9780198784715.003.0005 ◽

2017 ◽

Author(s):

Emily Finch ◽

Stefan Fafinski

Keyword(s):

European Union ◽

Human Rights ◽

The European Union ◽

Court Of Justice ◽

European Court

This chapter presents the skills needed to find cases. It first explains the meanings of case citations before moving on to discuss how to locate domestic cases. It then describes how to find decisions of the Court of Justice of the European Union, the General Court, and the European Court of Human Rights.

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La spinta verso una legislazione europea comune sul diritto di conoscere le proprie origini genetiche / The push towards common European legislation with respect to the right to know one’s genetic origins

Medicina e Morale ◽

10.4081/mem.2017.518 ◽

2018 ◽

Vol 66 (6) ◽

pp. 747-761

Author(s):

Gianluca Montanari Vergallo ◽

Natale Mario Di Luca

Keyword(s):

European Union ◽

Human Rights ◽

Right To Know ◽

The European Union ◽

European Legislation ◽

Anonymous Birth ◽

European Court ◽

The Right To Know ◽

Genetic Origins ◽

The Right

A venti anni dalla sua approvazione, la Convenzione di Oviedo necessita di un aggiornamento. Infatti, non affronta la questione del diritto dei bambini nati da fecondazione eterologa di conoscere l’identità dei donatori di gameti. La Corte europea dei diritti dell’uomo ha recentemente stabilito che: a) il diritto di conoscere le proprie origini biologiche è tutelato dall’art. 8 della Convenzione dei diritti dell’uomo; b) tale diritto deve essere bilanciato con quello della madre biologica di rimanere anonima (c.d. parto anonimo). Al fine di trovare tale bilanciamento, una possibile soluzione consiste nel richiedere ai giudici di convocare la madre per chiederle se intende revocare l’anonimato. Se la madre ribadisce la propria originaria intenzione di rimanere sconosciuta, il Tribunale non può consentire al figlio di conoscere la sua identità. Gli autori analizzano anche altre due questioni non prese in considerazione dalla Corte europea: a) l’equilibrio tra il diritto di conoscere le proprie origini e quello dei donator di gamete all’anonimato; b) se tale diritto dei bambini nati da fecondazione eterologa vincoli i genitori legali a rivelargli le modalità del concepimento. Tali problemi e l’importanza degli interessi in gioco inducono gli autori a sostenere che la scelta di usare il citato art. 8 come criterio di giudizio non è affatto ottimale. Appare preferibile affrontare queste questioni attraverso un aggiornamento della Convenzione di Oviedo o comunque con modalità tali da arrivare ad una regolamentazione che sia uniforme all’interno dell’Unione europea. ---------- Twenty years since it was opened for signature, the Oviedo Convention needs updating. It does not deal with the issue of the donor-conceived children’s right to know the identity of the gamete donors. The European Court of Human Rights has recently stated that: a) the right to know one’s biological background is protected by article 8 of the Convention on Human Rights; b) such a right must be balanced with the biological mother’s right to anonymity (anonymous birth). In order to find such balancing, a possible solution might be to require judges to summon mothers to ask them whether they would like to reverse their decision to be anonymous. If the mother reaffirms her intention to remain unknown, the court may not allow the child to learn of her identity and contact her. The authors also analyze two other issues not taken into account by the European Court: a) the balancing between the right to know one’s origins and the gamete donors’ right to anonymity; b) whether the donor-conceived children’s right to know would make it mandatory for legal parents to disclose conception procedures. These problems and the importance of the interests at stake induce the authors to argue that the choice to keep using the above mentioned article 8 as yardstick is far from ideal. It appears to be far preferable to deal with these issues while updating the Oviedo Convention or in such a way as to incentivize the enactment of legislation that would be uniform throughout the European Union.

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Between Informal Dialogue and Official Criticism

International Community Law Review ◽

10.1163/18719732-12341410 ◽

2019 ◽

Vol 21 (5) ◽

pp. 409-420

Author(s):

Anna Podolska

Keyword(s):

European Union ◽

Human Rights ◽

Mutual Recognition ◽

Case Law ◽

Fundamental Rights ◽

The European Union ◽

Court Of Justice ◽

European Court ◽

Protection Of Human Rights ◽

Judicial Proceedings

Abstract There are various forms of jurisdictional dialogue. In addition to drawing from the case law of another court or seeking direct assistance of such another court in passing the judgment, we can notice in practice situations when by issuing a verdict the courts are communicating with each other. The rulings of the Bundesverfassungsgericht, the Court of Justice of the European Union, and the European Court of Human Rights regarding the free movement of judgments in the European Union and protection of fundamental rights are the example of such activities. Each of these bodies was interpreting separately the extent to which the mechanisms of recognising and executing the judgments may interfere with the level of protection of fundamental rights. A common conclusion concerns assigning the priority to protection of fundamental rights, while individual bodies were determining differently the standards of such protection. The analysed judgments can be construed as a communication between these bodies. Although no direct discussion takes place between these courts, this is still a form of interaction which affects the development of the case law and understanding of the boundaries of mutual recognition of judgments and protection of human rights within judicial proceedings.

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BETWEEN EXCLUSION AND FAMILIARITY: AN ETHNOGRAPHY OF THE MEDITERRANEAN MISSING PROJECT1

Practicing Anthropology ◽

10.17730/0888-4552.40.2.28 ◽

2018 ◽

Vol 40 (2) ◽

pp. 28-31

Author(s):

Giorgia Mirto

Keyword(s):

European Union ◽

Human Rights ◽

Data Collection ◽

The State ◽

Post Mortem ◽

The European Union ◽

Human Rights Law ◽

The Mediterranean ◽

Ethnographic Analysis ◽

Future Work

Abstract For decades, migrants have continued to die or go missing in the Mediterranean, while the European Union and Italy continue to exhibit a policy vacuum around the issue of the missing, despite the duties on states imposed by human rights law. The investigation of deaths is inadequate, the Italian judicial authorities demonstrate disinterest to proceed with investigations in the identification of deceased migrants, and the inefficient post-mortem data collection seriously compromise every effort to restore names and dignity to the dead. This attitude seems to confirm the theory of “necropolitics,” which views the state as a racist and excluding sovereign entity. But ethnographic analysis of the work of some of the involved actors reveals recognition of the deceased and missing migrants based on a sense of familiarity and closeness. Here, the experience of the Mediterranean Missing Project is discussed, with an emphasis on future work prospects for both academia and practitioners.

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