The European Court of Human Rights and its ever-growing caseload: Preserving the mission of the Court while ensuring the viability of the individual petition system

2013 ◽  
pp. 18-26 ◽  
Author(s):  
Paul Mahoney
Keyword(s):  
Human Rights ◽  
European Court ◽  
The Individual ◽  
Individual Petition

Environmental Displacement in European Asylum Law

2009 ◽  
Vol 11 (4) ◽  
pp. 313-326 ◽  
Author(s):  
Finn Myrstad ◽  
Vikram Kolmannskog
Keyword(s):  
Human Rights ◽  
Work Force ◽  
Displaced Persons ◽  
Temporary Protection ◽  
European Court ◽  
Asylum Law ◽  
The Individual ◽  
International Border ◽  
The Eu ◽  
Environmental Displacement

AbstractEnvironmentally displaced persons can be included in several existing categories of protected persons under international law, but there may be a normative protection gap for many of those who cross an international border. This article looks at protection possibilities within the EU framework and national European legislations. Environmental displacement can arguably trigger temporary protection according to the EU Temporary Protection Directive. There may also be environmentally displaced persons who require longer-term or permanent protection. Drawing on the EU Qualification Directive and case-law from the European Court of Human Rights, one can argue that subsidiary protection should be granted in certain cases of extreme natural disaster or degradation. In less extreme cases, humanitarian asylum could be granted. Human rights principles such as non-refoulement could also be used to extend at least basic protection. In addition, legal labour migration could supply a work force, assist distressed countries and enhance protection of the individual. A strategy to meet the challenge of environmental displacement must also include climate change mitigation and external measures such as adaptation. Most of the displaced persons in the world today and in the near future do not arrive at the EU borders.

Is the assessment under Article 8 ECHR for migrants justifiable?

2021 ◽  
pp. 1023263X2110614
Author(s):  
Jennie Edlund ◽  
Václav Stehlík
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
European Convention ◽  
Individual Rights ◽  
Foreign Nationals ◽  
European Court ◽  
The Family ◽  
The Individual ◽  
The Way

The paper analyses the protection granted under Article 8 of the European Convention of Human Rights for different immigration cases. The way the European Court of Human Rights determines compliance with Article 8 for settled migrants differs from the way the Court determines compliance for foreign nationals seeking entry or requesting to regularize their irregular migration status. The paper argues that the European Court of Human Rights application of different principles when determining a States’ positive and negative obligations is contradicting its own case law. It also argues that the absence of justification grounds for the refusal of foreign nationals who are seeking entry lacks legitimacy. By treating all immigration cases under Article 8(2) the paper suggests that the differentiation between cases should be based on how a refusal of entry or an expulsion would impact on the family life. The paper also suggests that more consideration should be given towards the insiders interests when balancing the individual rights against the state's interests. These changes would lead to a more consistent and fair case law and generate a more convergent practice by the states which will increase the precedent value of the Court's judgements.

scholarly journals Khlaifia and Others v. Italy

2018 ◽  
Vol 112 (2) ◽  
pp. 274-280
Author(s):  
Jill I. Goldenziel
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
European Convention ◽  
Individual Rights ◽  
Detention Centers ◽  
European Court ◽  
Grand Chamber ◽  
The Individual ◽  
The Arab Spring ◽  
Domestic Law

In Khlaifia and Others v. Italy, the Grand Chamber of the European Court of Human Rights (Grand Chamber or Court) released a landmark opinion with broad implications for how states must respect the individual rights of migrants. In the judgment, issued on December 15, 2016, the Court held that Italy's treatment of migrants after the Arab Spring violated the requirement of the European Convention on Human Rights (ECHR) that migrants receive procedural guarantees that enable them to challenge their detention and expulsion. The Court also held that Italy's treatment of migrants in detention centers did not violate the ECHR's prohibition on cruel and inhuman treatment, in part due to the emergency circumstances involved. The Court further held that Italy's return of migrants to Tunisia did not violate the prohibition on collective expulsion in Article 4 of Protocol 4 of the ECHR. Enforcement of the judgment would require many European states to provide a clear basis in domestic law for the detention of migrants and asylum-seekers. Given the global diffusion of state practices involving migrants, and other states’ desires to restrict migration, this case has broad implications for delineating the obligations of states to migrants and the rights of migrants within receiving countries.

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.

scholarly journals Improving Human Rights Protection on the national and the European Level

2015 ◽  
pp. 36-51
Author(s):  
RUDOLF DUR SCHNUTZ
Keyword(s):  
Human Rights ◽  
National Level ◽  
European Level ◽  
Human Rights Protection ◽  
Current State ◽  
European Court ◽  
Protection Of Human Rights ◽  
Venice Commission ◽  
Effective Remedy ◽  
The Individual

The recent move towards the individual access to constitutional justice is a progress for protection of human rights in Europe. The explicit purpose of these efforts is to settle human rights issues on the national level and to reduce the number of cases at the Strasbourg Court. Such individual complaints have to be designed in a way that makes them an effective remedy which has to be exhausted before a case can be brought before the European Court of Human Rights. This paper points out the current state of these improvements on the national level in a difficult context on the European level and the recommendations of the Venice Commission in this regard.

ECHR decision to refuse to waive the immunity of a person under article 1 of the protocol no. 6: Individual interpretations of the essence and consequences

2021 ◽  
Vol 28 (3) ◽  
pp. 257-267
Author(s):  
Bohdan V. Shchur ◽  
Iryna V. Basysta
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Method Comparison ◽  
Scientific Basis ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
International Obligations ◽  
Grand Chamber ◽  
The Individual

In present-day Ukraine, there is no unanimous answer to the question of the essence and consequences of the ECHR decision to refuse to waive immunity under Article 1 of the Protocol No. 6 either in the national criminal procedural legislation, or in the theory of criminal procedure, or among judges, investigators, prosecutors. Therefore, the purpose of the present paper is to try to attempt to formulate individual approaches to address this issue. The relevance of the subject under study is conditioned upon its theoretical and practical components. The former is that there this area is heavily understudied, and judicial practice, among other things, requires a certain scientific basis to formulate individual positions in their unity. The dilemma proposed in the title of this study was also addressed by members of the Scientific Advisory Board of the Supreme Court, who were approached by judges of the Grand Chamber for scientific opinions, emphasising the urgency and necessity of feedback from practitioners. To formulate the individual approaches serving the purpose of this study, the authors employed such general and special research methods as dialectical, induction and deduction, Aristotelian, system-structural, sampling method, comparison, and legal forecasting. Notwithstanding the fact that the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6, adopted by its plenary session in accordance with Article 4 of the Protocol No. 6 to the General Agreement on Privileges and Immunities of the Council of Europe, is “procedural”, it was proven that the Grand Chamber of the Supreme Court has the authority to conduct proceedings on the application of such a person to review the judgment precisely in exceptional circumstances. It is emphasised that the ECHR decision should be considered as one that does not aim at the final assessment of criminal proceedings, so it cannot be equated with the decision of an international judicial institution, which would state Ukraine's violation of international obligations in court and the order of its execution will differ. The authors also address the fact that the consequences of the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6 are critical. After all, such a decision of the European Court of Human Rights is the “bell” for Ukraine, which, among other things, may hint at the probability that the Court will identify the facts of human rights violations

1 The Court Over Sixty Years

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.

Beyond an Anxiety Logic: A Critical Examination of Language Rights Cases before the European Court of Human Rights

2020 ◽  
Vol 20 (1) ◽  
pp. 101-119
Author(s):  
Dana Schmalz
Keyword(s):  
Human Rights ◽  
Language Use ◽  
Critical Examination ◽  
Language Rights ◽  
National Minorities ◽  
European Court ◽  
The Individual ◽  
Argument Proceeds ◽  
The Right ◽  
Individual Dimension

Abstract Language rights have traditionally been codified and discussed in the context of minority protection. The identification of language rights with questions of national minorities can, however, confound the analysis. This article explores the freedom of using a language and argues that the individual dimension of language rights must not be ignored beside the group dimension. The argument proceeds along a reading of three recent cases from the European Court of Human Rights, which concerned the use of Kurdish in Turkey. The Court’s reasoning illustrates the risk of an ‘anxiety logic’, which sees any language rights in connection with political claims of groups, thereby introducing additional conditions for the right and disregarding the significance a specific language can have for an individual, being more than a medium of conveying and receiving information. Conceptualising language use as an individual freedom is necessary also to account for situations other than national minorities, most importantly for the language rights of immigrants.

scholarly journals “Tatprovokation” – The Legal Issue of Entrapment in Germany and Possible Solutions

2019 ◽  
Vol 20 (4) ◽  
pp. 496-509
Author(s):  
Franziska Görlitz ◽  
Juliane Hubert ◽  
Jasmin Kucher ◽  
Moritz Scheffer ◽  
Patrick Wieser
Keyword(s):  
Human Rights ◽  
Police Officers ◽  
Federal Court ◽  
Legal Issue ◽  
European Convention ◽  
National Courts ◽  
European Court ◽  
Federal Court Of Justice ◽  
The Individual ◽  
Procedural Rights

AbstractIncitement by police officers is a well-known and often utilized police measure in the German investigation process. Yet, when it comes to prosecuting the perpetrators, a moral conflict arises. Should a State, bound by its own constitution and committed to protect its citizens, be allowed to incite or support a possible offender and afterwards judge on his or her wrongful actions? After Germany’s higher courts had to deal with multiple cases of entrapped perpetrators, there has been a strong debate about the admissibility, requirements, and consequences of entrapment within the German legal system. International and national courts as well as scholars represent different legal standpoints in this regard. In particular, the approaches of the European Court of Human Rights and the German Federal Court of Justice differ significantly in their results. As Germany ratified the European Convention on Human Rights and therefore has to adhere to the European Court of Human Rights’ ruling, an additional legal conflict arises. This article depicts and discusses the most relevant approaches to resolve this moral and legal conflict and satisfy both the need for effective prosecution and the procedural rights of the individual person subject to the act of entrapment. Additionally, recent legislative ambitions are presented.

The Effects of the Judgments of the European Court of Human Rights According to the German Constitutional Court

2010 ◽  
Vol 11 (5) ◽  
pp. 513-526 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
The Rule Of Law ◽  
Basic Law ◽  
European Court ◽  
German Constitutional Court ◽  
The Individual ◽  
Willingness To Cooperate

The Federal Republic of Germany counts among the earliest States parties to the European Convention on Human Rights (ECHR). It ratified the ECHR on 5 December 1952, three years ahead of Italy, and hence found itself among the original members of the treaty system when the ECHR entered into force on 3 September 1953. For the new democratic Government, it was a decision of principle to affirm its willingness to cooperate peacefully within the group of European States, submitting to an international review mechanism with regard to all of its activities. Therefore, very shortly afterwards, it accepted also the individual application under Article 25 ECHR, which at that time was not yet compulsory for all States parties. For many years under the Nazi dictatorship, Germany had brought death and destruction to its neighbours. Now, organized under a democratic and liberal constitution, the Basic Law (BL), it wanted to manifest its newfound identity as a civilized State abiding by the rule of law.

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