The current era in the life of the European Convention on Human Rights is a transformative one. The author, a serving judge of the Strasbourg Court, thus finds it opportune to look back in time, ...consider the present and reflect on the future. In the article, it is argued that the last 40 years or so constituted the Court’s ‘substantive embedding phase’. This phase has now in general shifted towards a new historical era, the ‘procedural embedding phase’, which is analysed in detail. During this latter phase, the Court has begun to realign its project attempting to trigger increased engagement with the Convention by national authorities using a mechanism termed ‘process-based review’. The overall aim is to secure a higher and more sustainable level of Convention protections within the States subject to European supervision. However, within this process-based review mechanism, national decision-makers have to be structurally capable of fulfilling the task of effectively securing human rights. This means that the foundations of the domestic legal order have to be intact. States that do not respect the rule of law cannot expect to be afforded deference under process-based review in the age of subsidiarity.
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This article presents the contours of a “dialogical model” of adjudication arising from the practice of the European Court of Human Rights that is profoundly transforming inherited notions ...of rights, legal reasoning, legal authority, and the rule of law more generally. The dialogical model is characterized by a form of reasoning that is not self-reliant or autonomous, but internally constituted by the interaction of multiple voices, normative perspectives, and institutional standpoints. What is defined as dialogical, however, is not the inclusion of this or that discrete voice, but the entire process of adjudication, including: how issues are framed; the need to consider cases as a whole; their embeddedness in large swathes of normative magma; the self-reflexive assessment of the Court’s position and trajectory; the relational understanding of the Court’s authority; and the fact that each and every decision constitutes a notion of democracy that is plural, many-voiced, and inherently in tension. Beyond a mere polyphony of voices, therefore, this is an entirely new paradigm to conceive the Court’s task, which differs markedly from the two main paradigms of understanding human rights adjudication, namely the rights-based model and proportionality analysis. After describing the shortcomings of the latter two paradigms fully to account for the Court’s practice, the article presents the features of the dialogical model. Ultimately, this is a judgment about the collective self-definition of democratic societies, which necessitates a reassessment of the countermajoritarian difficulty to account for the democracy-constituting role of the Court.
This case concerned the detention of the applicant pending the determination of his asylum claim. The applicant, an Iraqi citizen, had irregularly entered Hungary via the Hungarian- Ukrainian border ...and had requested international protection. After asylum proceedings were underway, the applicant was granted a residence permit on humanitarian grounds. However, he was subsequently detained for a period of four months because of alleged uncertainties surrounding his identity and nationality, and because Hungarian authorities believed that, if left at large, the applicant could impede the asylum process and would pose a risk of absconding.
This book presents a comprehensive comparative analysis of the substantive and procedural aspects of compensation for wrongful convictions in European countries and the USA, as well as the standard ...derived from the case law of the European Court of Human Rights. The collection draws comparative conclusions as to the similarities and differences between selected jurisdictions and assesses the effectiveness of the national compensation schemes. This enables the designing of an optimum model of compensation, offering accessibility and effectiveness to the victims of miscarriages of justice and being acceptable to jurisdictions based on common law, and civil law traditions, as well as inquisitorial and adversarial types of criminal process. Moreover, the discussion of the minimum European standard as established in the case law of the European Court of Human Rights enables readers to identify how the Strasbourg Court can contribute to strengthening the compensation scheme. The book will be essential reading for students, academics and policymakers working in the areas of criminal law and procedure.
The urgency of the research is stipulated by the necessity to study the European Court of Human Rights practice as a source of law at the regional level, which affects the development of national ...legal systems. The purpose of the article is to elucidate the European Court of Human Rights practice as a source of law for member states to the Convention for the Protection of Human Rights and Fundamental Freedoms (on the examples of individual decisions). The research is based on the understanding of law as a dynamic social and cultural phenomenon having a specific content and is closely related to human dignity, human rights and justice. Legislation is only one form of law that can exist outside the prescriptive texts, which requires the use of the hermeneutic method and content analysis of the European Court of Human Rights decisions. The article finds out that the European Court of Human Rights is one of the most effective institutions for human rights implementation. Applying the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, which was adopted in 1950, through a dynamic interpretation, the European Court of Human Rights ensures the effectiveness and efficiency of this international treaty, revealing the content in the aspect of modernity. States parties to the Convention for the Protection of Human Rights and Fundamental Freedoms are obliged to comply with the European Court of Human Rights decisions, which (the court) always follows its practice, ensuring legal certainty and the rule of law. This allows considering the European Court of Human Rights a subject forming legal doctrines at both regional and national levels. The materials of the article can be used for scientific research of the European Court of Human Rights practice as a source of law at the regional level, which affects national legal systems. The main provisions of the article can be used to justify the study of ECHR practice by lawyers as well as law students and civil servants.
When international courts are given sweeping powers, why would they ever refuse to use them? The book explains how and when courts employ strategies for institutional survival and resilience: ...forbearance and audacity, which help them adjust their sovereignty costs to pre-empt and mitigate backlash and political pushback. By systematically analysing almost 2,300 judgements from the European Court of Human Rights from 1967–2016, Ezgi Yildiz traces how these strategies shaped the norm against torture and inhumane or degrading treatment. With expert interviews and a nuanced combination of social science and legal methods, Yildiz innovatively demonstrates what the norm entails, and when and how its contents changed over time. Exploring issues central to public international law and international relations, this interdisciplinary study makes a timely intervention in the debate on international courts, international norms, and legal change. This book is available as Open Access on Cambridge Core.
The concept of vulnerable groups is gaming momentum in the case law of the European Court of Human Rights. The Court has so far used it in cases concerning Roma, people with mental disabilities, ...people living with HIV, and asylum seekers. Yet the appearance of the vulnerable-group concept in the Court's legal reasoning has so far escaped scholarly attention. Drawing on theoretical debates on vulnerability as well as on the Court's case law, this article offers a critical assessment of the concept. Reasoning in terms of vulnerable groups opens a number of possibilities, most notably, the opportunity to move closer to a more robust idea of equality. However, the concept also has some inherent difficulties. This article argues for a reflective use of the concept and points out ways in which the Court can avoid its pitfalls. Adapted from the source document.
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This article looks to make sense of those cases where the European Court of Human Rights (ECtHR) changes its position on interpretation in light of the increasingly high standards being required by ...human rights, when the Court applies the doctrine of evolutive interpretation to the ECHR's object and purpose, as a Convention for the protection of 'human rights' (e.g. 'Selmouni v France'). This raises two questions: What do we mean when we speak about 'human rights'? Can the demands of human rights really change over time? Looking to the insights from social ontology, we can think of human rights as a social institution, emerging with the adoption of the Universal Declaration of Human Rights and evolving with changes in human rights practices. Understood this way, reliance on the increasingly high standard doctrine becomes defensible when the ECtHR judgments are consistent with the evolving practices on human rights and the moral values that underpin the UDHR.
Recent and upcoming judgments of the Court of Justice of the European Union (CJEU) have resurfaced a much-debated topic on the legal limitations of law enforcement authorities and intelligence ...services under EU law in implementing surveillance operations. In its decisions, the CJEU has reinstated and at times remoulded its case-law on data retention, unearthing a variety of legal issues. This article aims to critically analyse the legal limitations of (indiscriminate) surveillance measures, the role of the private sector in the scheme, and the line between the competence of the Member States and that of the EU on national security matters. It also aims to remark on the latest developments on the reception of the decisions by the Member States and the EU legislator, as well as on the ongoing dialogue between the CJEU and the European Court of Human Rights (ECHR).
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On 9 June 2022, the Grand Chamber of the European Court of Human Rights pronounced its judgment in the case of 'Savickis and Others v 'Latvia'. The case concerns a differential treatment in the ...calculation of pension between Latvian citizens and the so-called 'permanently resident non-citizens' ('nepilsoni'), which was the applicants' official status. The applicants were denied recognition of their period of employment outside of Latvia when the country was illegally occupied by the Soviet Union (the USSR), while Latvian citizens could enjoy such a benefit. They argued that this constituted a breach of the accessory right to nondiscrimination under Article 14 of the ECHR in conjunction with the right to property under Article 1 of Protocol No. 1 of the ECHR.
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