The Impact of the Hague Abduction Convention on the Rights of the Family in the Case-Law of the European Court of Human Rights and the Un Human Rights Committee: The Danger of Neulinger

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.

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THE RIGHT TO AN INTIMATE, FAMILY AND PRIVATE LIFE IN THE JURISPRUDENCE OF THE EUROPEAN COURT ON HUMAN RIGHTS

National Law Journal ◽

10.52388/1811-0770.2021.1(243).13 ◽

2021 ◽

pp. 142-151

Author(s):

Iulia Butnaru ◽

Keyword(s):

Human Rights ◽

Case Law ◽

Private Life ◽

Psychological Traits ◽

European Court ◽

The Family ◽

Legitimate Interests ◽

The Right

Privacy often conflict with other rights and legitimate interests, at which is the question of establishing its boundaries. Obviously there are no clear limits beyond which an infringement must be regarded as permissible. Private life is a concept with an extensive interpretation, which includes different spheres of the person’s life, as demonstrated by the jurisprudence of the European Court of Human Rights. What is certain is that each person has their own opinion about the extent of privacy and this impression depends on the psychological traits of the person concerned, but also on the traditions and customs that exist in a society at a certain historical stage. The utility of the case law of the European Court of Human Rights in the protection of private life and the family is that it provides precise criteria to be applied by judges to determine whether the complaint submitted under Article 8 of the Convention European Human Rights is one valid.

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

Good Administration and the Council of Europe ◽

10.1093/oso/9780198861539.003.0014 ◽

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.

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The Pan-European General Principles of Good Administration in the Italian Legal System

Good Administration and the Council of Europe ◽

10.1093/oso/9780198861539.003.0007 ◽

2020 ◽

pp. 182-209

Author(s):

Marco Macchia ◽

Claudia Figliolia

Keyword(s):

Human Rights ◽

Legal System ◽

Case Law ◽

Administrative Law ◽

European Court ◽

System P ◽

Low Degree ◽

Court Proceedings ◽

The Impact ◽

Constitutional Jurisprudence

This chapter discusses the impact of the pan-European principles of good administration on Italian administrative law. The chapter presents the main finding that the Italian legal system is generally in line with these principles. The case law of the European Court of Human Rights has played a particularly strong role in national administrative law (especially in the context of administrative sanctioning and lengthy court proceedings). At the same time, some limitations to full reception of the said principles remain, the most notable of them being the resistance of constitutional jurisprudence to give ‘generalized’ execution to the pan-European principles and the low degree of recognition of the importance of the Council of Europe’s recommendations and conventions (other than the ECHR) for the development of these principles in national administrative law. The chapter concludes by stressing the (sometimes) contradictory nature of Italy’s acknowledgement of the pan-European scope of these principles.

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5. Case law

Legal Skills ◽

10.1093/he/9780198831273.003.0005 ◽

2019 ◽

pp. 85-103

Author(s):

Emily Finch ◽

Stefan Fafinski

Keyword(s):

Human Rights ◽

Common Law ◽

Case Law ◽

Court System ◽

European Court ◽

Human Rights Act ◽

Human Rights Act 1998 ◽

The Impact

Case law can be broken down into common law, equity, and custom. This chapter begins with a discussion of common law and equity, including a brief history on how these sources came into being. It then turns to custom as a further source of law. It also provides an overview of the court system to illustrate how the various courts in the system link together in a hierarchy. It concludes with a discussion of the European Court of Human Rights and the impact of the Human Rights Act 1998 on case law.

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4. Case law

Legal Skills ◽

10.1093/he/9780198784715.003.0004 ◽

2017 ◽

Cited By ~ 4

Author(s):

Emily Finch ◽

Stefan Fafinski

Keyword(s):

Human Rights ◽

Common Law ◽

Case Law ◽

Court System ◽

European Court ◽

Human Rights Act ◽

Human Rights Act 1998 ◽

The Impact

Case law can be broken down into common law, equity, and custom. This chapter begins with a discussion of common law and equity, including a brief history on how these sources came into being. It then turns to custom as a further source of law. It also provides an overview of the court system to illustrate how the various courts in the system link together in a hierarchy. It concludes with a discussion of the European Court of Human Rights and the impact of the Human Rights Act 1998 on case law.

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Las cláusulas de restricción en el Convenio Europeo de Derechos Humanos

Teoría y Realidad Constitucional ◽

10.5944/trc.47.2021.30727 ◽

2021 ◽

pp. 469

Author(s):

Lara Redondo Saceda

Keyword(s):

Human Rights ◽

Case Law ◽

European Convention ◽

Council Of Europe ◽

Derechos Humanos ◽

European Court ◽

El Sistema ◽

The Impact

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.

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THE BOUNDARIES PROBLEM OF THE 1950 EUROPEAN CONVENTION DYNAMIC INTERPRETATION ON HUMAN RIGHTS ON THE EXAMPLE OF ENSURING THE SOCIAL RIGHTS OF CONVICTS

Tyumen State University Herald Social Economic and Law Research ◽

10.21684/2411-7897-2021-7-1-112-125 ◽

2021 ◽

Vol 7 (1) ◽

pp. 112-125

Author(s):

Andrew Yu. KLYUCHNIKOV

Keyword(s):

Human Rights ◽

Case Law ◽

Current Approach ◽

European Convention ◽

Social Rights ◽

Dynamic Interpretation ◽

European Court ◽

The Social ◽

The Right ◽

The Impact

The 1950 Convention for the Protection of Human Rights and Fundamental Freedoms is an instrument for the dynamic development of the human rights system in the member states of the European Council. Such an active formation of the latter is due to the activities of the European Court of Human Rights. However, the case-law of the court is not always accepted in national jurisdictions, especially when it comes to the most sensitive areas of life in modern societies. As the goal of the research, the author sets out the identification of the current approach of this international court to the problem of social rights of convicts, especially in the context of ensuring their social rights. The material for the research was the case-law of the ECHR on the social rights of citizens - with special attention to the rights of persons in places of isolation from society, the legal positions of domestic researchers on the problem posed. The author uses traditional research methods - general scientific and special, with an emphasis on historical, social and legal methods. The paper describes the stages of the international soft law sources formation on penitentiary rules and the impact on this of the ECHR practice in the context of the discrimination standarts prohibition regarding the right of ownership and violation of the forced (compulsory) labor prohibition. A common European standard “the right of a convicted person to retire” has not yet been developed, which has been confirmed in the practice of the ECHR. This decision is due to the need to maintain the effectiveness of the entire convention system, the policy of compromises with states. Through the dynamic interpretation of the ECHR, this right is recognized as an element of the convention rights protection, the convict should be granted an increasing amount of social rights.

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