scholarly journals The European Court of Human Rights and Article 18 – An Indicator for the State of Democracy in Europe?

2022 ◽  
pp. 35-54
Author(s):  
Christiane Schmaltz
Keyword(s):  
Human Rights ◽  
The State ◽  
European Court

scholarly journals Religious Expertise: Russian Experience

2013 ◽  
pp. 154-164
Author(s):  
Katerina Elbakyan
Keyword(s):  
Human Rights ◽  
The State ◽  
Religious Organizations ◽  
Religious Minorities ◽  
European Court

In modern Russia, one often hears about the claims of state bodies to certain religious organizations, mainly related to the so-called “religious minorities”. The result is judicial precedents, when individual religious organizations are forced, often repeatedly, to appeal to the courts of various instances, including the European Court of Human Rights, in order to solve their problems. Sometimes, on the contrary, the state makes charges against religious organizations.

Freedom of Religion in the Workplace

2021 ◽  
pp. 1-21
Author(s):  
Nedim Begović
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
Case Law ◽  
Legal Framework ◽  
The State ◽  
European Convention ◽  
Freedom Of Religion ◽  
European Court

Abstract The article analyses the case law of the European Court of Human Rights on accommodation of Islamic observances in the workplace. The author argues that the Court has not hitherto provided adequate incentives to the states party to the European Convention on Human Rights to accommodate the religious needs of Muslim employees in the workplace. Given this finding, the author proposes that the accommodation of Islam in the workplace should, as a matter of priority, be provided within a national legal framework. In Bosnia and Herzegovina, this could be achieved through an instrument of contracting agreement between the state and the Islamic Community in Bosnia and Herzegovina.

Functions of compensation for human rights violation in international and national judicial decisions

2021 ◽  
Vol 11 (1) ◽  
pp. 81-101
Author(s):  
Dmitry Kuznetsov
Keyword(s):  
Human Rights ◽  
Effective Means ◽  
National Court ◽  
Case Law ◽  
The State ◽  
Customary Law ◽  
Human Rights Violations ◽  
Complex Nature ◽  
European Court ◽  
International Responsibility

When establishing human rights violations committed by the state, should it be violation of internationally protected rights or constitutional rights, the violator is obliged to compensate for the harm caused. In the meantime, neither international sources, nor national legal acts and case law answer the question whether the obligation to compensate is exhausted by the compensation awarded in accordance with a decision of an international judicial body or such a payment has punitive nature, and the state keeps the obligation to compensate the damage within the frameworks of national proceedings. Following the first part of opening remarks the second part of the article studies universal international law approach towards the state obligation to compensate for human rights violations, it reviews positions of the International Court of Justice, the model established in international customary law of international responsibility. The third part discusses the compensation mechanism of the European Court of Human Rights and a number of cases where the Russian Federation was the respondent state. The forth part considers national regulation of the Council of Europe states and case law thereof. The author argues that the established international case law in respect of awarding compensations for human rights violations is too restrictive – it does not take into account a complex nature of this phenomenon which includes both correction of the individual applicant situation (restitution of the pre-existed situation) and prevention of similar situations in the future. It is concluded that awarding the compensation by an international body primarily constitutes a measure of international responsibility whereas consideration by a national court is a more effective means of restitution of the applicants rights and that the national court shall not deny consideration of applicants claims due to the fact that they have already been awarded compensation by the international judicial body including the European Court of Human Rights.

Separation of Powers and Alternative Dispute Resolution before the European Court of Human Rights

2019 ◽  
Vol 15 (2) ◽  
pp. 247-271
Author(s):  
Cedric Jenart ◽  
Mathieu Leloup
Keyword(s):  
Human Rights ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Separation Of Powers ◽  
Executive Branch ◽  
The State ◽  
The Other ◽  
International Level ◽  
European Court

Alternative dispute resolution procedures before the European Court of Human Rights – The state agent, a member of the executive branch, tasked with representing the respondent state – Judicial and legislative branches of the respondent state limited or bound by concessions by the state agent – Convention framework effectively increases the power of the executive branch to the detriment of the other branches of government in the respondent state – Tension with national separation of powers – Possible solutions on a national and international level

scholarly journals Fault, knowledge and risk within the framework of positive obligations under the European Convention on Human Rights

2020 ◽  
Vol 33 (3) ◽  
pp. 601-620
Author(s):  
Vladislava Stoyanova
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
Main Argument ◽  
European Court ◽  
Normative Considerations

AbstractThe European Court of Human Rights has consistently reiterated that positive obligations under the European Convention on Human Rights arise when state authorities know or ought to have known about the risk of harm. This article attempts to describe and assess the role of state knowledge in the framework of positive obligations, and to situate the Court’s approach to knowledge about risk within an intelligible framework of analysis. The main argument is that the assessment of state knowledge is imbued with normative considerations. The assessment of whether the state ‘ought to have known’ is intertwined with, first, concerns that positive obligations should not impose unreasonable burden on the state and, second, the establishment of causal links between state omissions and harm.

scholarly journals Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the European Convention on Human Rights

2011 ◽  
Vol 12 (10) ◽  
pp. 1764-1785 ◽  
Author(s):  
Alan Greene
Keyword(s):  
Human Rights ◽  
National Security ◽  
The State ◽  
European Convention ◽  
State Of Emergency ◽  
Liberal Democratic ◽  
Imminent Danger ◽  
European Court ◽  
Tight Rope ◽  
Legal Document

The European Convention of Human Rights (ECHR) is as much a political as it is a legal document. The European Court of Human Rights (ECtHR) constantly walks the delicate tight rope between vindicating human rights and respecting the sovereignty of contracting states. This balancing act is particularly sensitive when a situation of “exceptional and imminent danger” exists. In such instances of national security the state may need to act in a manner beyond the parameters of normalcy in order to neutralize the threat and protect both itself and its citizens. Article 15 of the ECHR therefore allows states to derogate from its obligations under the convention when a state of emergency is declared. On foot of a notice of derogation, a state has more discretion and flexibility to act accordingly to respond to a threat without being constrained by its obligations under the treaty. However, it is also in these conditions that human rights are at their most vulnerable as the state's response may encroach severely on individuals' rights and the liberal-democratic order of the state.

scholarly journals Unilateral declarations and the European Court of Human Rights: Between efficiency and the interests of the applicant

2018 ◽  
Vol 25 (5) ◽  
pp. 607-630 ◽  
Author(s):  
Lize R Glas
Keyword(s):  
Human Rights ◽  
The State ◽  
Governmental Organizations ◽  
Non Governmental Organizations ◽  
European Court ◽  
Unilateral Declaration ◽  
Human Rights Violation

Faced with numerous repetitive applications, the European Court of Human Rights (ECtHR) has welcomed the unilateral declaration mechanism as a way to handle these efficiently. In a unilateral declaration, the state admits a human rights violation and promises to provide redress to the applicant. On that basis, the Court strikes out an application and does not deal with its merits. Some authors and non-governmental organizations warn against losing sight of the applicants’ interests whilst relying on unilateral declarations. Against this background, this article aims to establish whether unilateral declarations are indeed (mostly) used to dispose of repetitive applications and how this procedure works in practice. The second aim is to determine whether the interests of the applicants are sufficiently protected when the Court rules on unilateral declarations. The analysis is based on all 1285 unilateral declarations, which the states parties to the ECHR have proposed in the five years following 2 April 2012.

scholarly journals Religious Freedom and the European Court of Human Rights’ Two Margins of Appreciation

2017 ◽  
Vol 12 (2-3) ◽  
pp. 198-209
Author(s):  
Stephanie E. Berry
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
The State ◽  
Complete Picture ◽  
European Convention ◽  
Article 9 ◽  
European Court ◽  
Margin Of Appreciation ◽  
Religious Clothing

Abstract The European Court of Human Rights’ (ECtHR) use of the margin of appreciation (MoA) in cases concerning religious clothing is well-documented. This article paints a more complete picture of the use of the doctrine in cases falling within Article 9 and Article 2, Protocol 1 of the European Convention on Human Rights (echr). The ECtHR’s use of the normative MoA often appears to be superfluous as it does not seem to extend past the Article 9(2) echr, limitations clause. In contrast, the systemic MoA allows almost complete deference to the State, which has the potential to undermine the religious freedom of minorities.

New Trends in Religious Liberty and the European Court of Human Rights

2010 ◽  
Vol 12 (3) ◽  
pp. 266-279 ◽  
Author(s):  
Ian Leigh
Keyword(s):  
Human Rights ◽  
Religious Education ◽  
Military Service ◽  
Religious Freedom ◽  
Religious Affiliation ◽  
The State ◽  
Religious Liberty ◽  
European Convention ◽  
European Court ◽  
The Right

This article analyses recent trends in the jurisprudence of the European Court of Human Rights concerned with the right to freedom of thought, belief and religion (Article 9, European Convention on Human Rights) and the right of parents to respect by the state for their religious and philosophical views in the education of their children (Article 2, Protocol 1).1 These developments include notable decisions concerned with protection from religious persecution in Georgia, with religious education in Norway and Turkey and with the display of crucifixes in state schools in Italy. It is apparent that the European Convention religious liberty jurisprudence increasingly stresses the role of the state as a neutral protector of religious freedom. For individuals religious freedom is now also recognised to include not only the right to manifest their religious belief but also freedom from having to declare their religious affiliation. As the religious liberty jurisprudence comes of age, other significant developments, for example in relation to conscientious objection to military service, can be anticipated.

I. EUROPEAN COURT OF HUMAN RIGHTS BIJELIC V MONTENEGRO AND SERBIA (APPLICATION NO 19890/05) JUDGMENT OF 11 JUNE 2009

2010 ◽  
Vol 59 (3) ◽  
pp. 845-867 ◽  
Author(s):  
Benjamin E Brockman-Hawe
Keyword(s):  
Human Rights ◽  
The State ◽  
Serbia And Montenegro ◽  
European State ◽  
Emerging Trends ◽  
European Court ◽  
Protection Of Human Rights ◽  
International Obligations ◽  
Unique Approach ◽  
First Time

What happens when a European State breaches its international obligations and then ceases to exist? Does its obligation to repair the harm caused by the breach devolve to a new state that occupies part of the territory of an old state? When will a new European State be held accountable for violations that took place before the entry into force of a human rights treaty? This comment examines the European Court of Human Rights' (hereinafter ‘the Court’ or ‘the ECtHR’) encounter with the law of state succession, specifically succession to treaty obligations and succession to responsibility for the wrongful acts of a predecessor state. In Bijelic v Montenegro and Serbia the Court held that Montenegro was to be automatically regarded as a party to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘the Convention’), as well as Protocol No 1 thereto, from the date of its declaration of independence from the State Union of Serbia and Montenegro (hereinafter ‘the State Union’), and that Montenegro alone could be held responsible for violations of these instruments occurring in the territory of the State Union that began before March 2004 (the date of ratification of the Convention and Protocol 1 by the State Union) but continuing through 2009. Bijelic is not the first time the Court has been called upon to decide a question of succession to treaty obligations or responsibility, but the judgment is noteworthy for the unique approach the Court adopted to deciding both of these issues. This comment will place the decision in the larger context of Court practice with respect to both of the implicated succession issues, identify the aspects the Trial Chamber's analysis that distinguish it from its predecessors and discuss the decision of the Court in light of general and emerging trends in international law. In the process, this comment will provide a uniquely thorough examination of ECtHR practice with respect to succession to responsibility and identify the trends, to the extent that such trends exist, that characterize the Court's approach to this area of law.

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