In comparison to the European Convention on Human Rights, the EU Charter of Fundamental Rights, which provides in its Article 16 for the freedom to conduct a business, is a much more modern ...instrument. In this article I argue that the Convention nevertheless appears to be no less important a document offering protection of entrepreneurs’ rights. This is the case even though it does not provide any particular rights devoted to the running of a business by entrepreneurs. This is possible, first of all, due to the right of individual application which may be lodged directly with the European Court of Human Rights in its capacity as an international court. No comparable measure for an individual complaint is available under the UN Charter. Secondly, the extensive case law of the Strasbourg Court has made it possible for entrepreneurs to rely on a number of Convention rights, despite the fact that these rights, at least at first glance, are not connected with the running of a business. This refers not only to the right to a fair trial on the protection of property, which offer entrepreneurs the protection of a number of their interests, but also to rights which at first glance have nothing to do with the running of the business, such as the right to respect for private and family life protected under Article 8 of the Convention. As a result, the right of individual complaint to the ECtHR should be perceived as an important measure of the protection and enforcements of entrepreneurs’ rights at the international level, in case of any failure to secure the protection of those rights at the national level.
Walking Back Human Rights in Europe? Helfer, Laurence R; Voeten, Erik
European journal of international law,
08/2020, Volume:
31, Issue:
3
Journal Article
Peer reviewed
Open access
Abstract
Judges and scholars have long debated whether the European Court of Human Rights (the ECtHR or the Court) can only expand, never diminish, human rights protections in Europe. Recent studies ...have found that political backlashes and national-level restrictions have influenced ECtHR case law. However, analysing whether the ECtHR is shifting in a regressive direction faces an empirical challenge: How can we observe whether the Court is limiting rights over time if it has never expressly overturned a prior judgment in a way that favours the government? We gain traction on this question by analysing all separate and minority opinions of the ECtHR Grand Chamber between 1998 and 2018. We focus on opinions asserting that the Grand Chamber has tacitly overturned prior rulings or settled doctrine in a way that favours the respondent state, which we label as ‘walking back dissents’. We find that walking back dissents have become significantly more common in the last decade, revealing that some members of the ECtHR themselves believe that the Grand Chamber is increasingly overturning prior judgments in a regressive direction.
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The relevance of the research topic is due to the importance of human rights in a democratic society. Despite the fact that all natural human rights are important, the right to health care is ...practically in the forefront, because without its observance all other rights are leveled. Moreover, the relevance of the topic is even greater given the fact that for a long time the relevant law was not given due attention in law or in legal science. The right to health care is comprehensive and includes other human rights that derive from it. The existing case law of the European Court of Human Rights (ECtHR) confirms the importance of the human right to health care. In its judgments, the Court emphasizes the importance of this right and reaffirms the need for States to monitor its observance. The aim of the study – analysis of international legal norms and standards, as well as the practice of the ECtHR in the context of the human right to health. The leading research method used in the article is the formal-legal method, the application of which provided an effective analysis of the legal framework of international law, national legislation of Ukraine, and the case law of the ECtHR. Which, in turn, allowed to determine the importance of human rights to health and places of relevant law in the practice of the ECtHR. The article analyzes the theoretical and legal approaches to understanding the right to health care and on this basis identifies the place of relevant law in the human rights system and its main determinants. The case law of the European Court of Human Rights is analyzed and the main articles of the European Convention on Human Rights (ECHR), which the applicants applied for in violation of the right to health care, are identified. The analysis of the case law of the ECtHR provided an opportunity to identify existing shortcomings in the legislation of the member states. Based on this, it is possible to understand and distinguish ways to solve problems and methods for eliminating such violations in the future. The practical significance of the article lies in the analysis of the case law of the European Court of Human Rights, the separation of rights related to the right to protection of life, as well as the identification of the main determinants of the studied law.
This work is a companion reproducible paper of our experiments and results reported in a previous work Quemy and Wrembel (2022) introducing an open repository of legal documents, called ECHR-OD, ...together with a large benchmark of Machine Learning (ML) methods for text classification. Machine Learning (ML) algorithms are used in various domains, including banking, healthcare, manufacturing, energy management, security, trade or insurance. However, building reliable ML models is challenging. First, because in order to build prediction models by ML algorithms, massive amounts of pre-processed data are needed, but in practice, such datasets are scarce or require a tremendous amount of time to be prepared. Second, because once a model is built, its performance needs to be assessed. To this end, benchmarks are needed, but their availability is limited as well. Despite the fact that ML algorithms are used in multiple domains, their application to the legal domain so far has received little attention from research communities. This fact motivated us to run a project to build and make available an open repository called the European Court of Human Rights Open Data (ECHR-OD) of judgment documents. In this paper, we describe a step-by-step Extract, Transform, and Load (ETL) process, supported with code snippets, for building ECHR-OD, so that it can be easily reproduced. The process produces (almost) exhaustive datasets that have been transformed, homogenized, re-organized, cleaned beforehand, and made available in a suitable format for ML algorithms. The ECHR-OD repository makes available tabular descriptive features as well as features extracted from natural language documents, accessible via a web user interface. Moreover, we provide a self-contained and easily reproducible set of experiments assessing ML classification algorithms on the content of the ECHR-OD repository. To the best of our knowledge, the ETL process and the set of experiments form the first fully end-to-end, from ingesting and pre-processing legal documents to obtaining high quality ML models, open, and reproducible benchmark on the prediction of the European Court of Human Rights judgments. Both components, the ETL and the experiments, leverage Docker for reproducibility. The content of this paper weakly reproduces the original results and provides a new weakly reproducible set of experiments.
•We predict the European Court of Human Rights’ decisions using previous judgments.•The experiments are fully reproducible, including the dataset generation.•We establish robust baselines using 12 machine learning algorithms.
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GEOZS, IJS, IMTLJ, KILJ, KISLJ, NLZOH, NUK, OILJ, PNG, SAZU, SBCE, SBJE, UILJ, UL, UM, UPCLJ, UPUK, ZAGLJ, ZRSKP
Do international court judgments influence the behavior of actors other than the parties to a dispute? Are international courts agents of policy change or do their judgments merely reflect evolving ...social and political trends? We develop a theory that specifies the conditions under which international courts can use their interpretive discretion to have system-wide effects. We examine the theory in the context of European Court of Human Rights (ECtHR) rulings on lesbian, gay, bisexual, and transgender (LGBT) issues by creating a new data set that matches these rulings with laws in all Council of Europe (CoE) member states. We also collect data on LGBT policies unaffected by ECtHR judgments to control for the confounding effect of evolving trends in national policies. We find that ECtHR judgments against one country substantially increase the probability of national-level policy change across Europe. The marginal effects of the judgments are especially high where public acceptance of sexual minorities is low, but where national courts can rely on ECtHR precedents to invalidate domestic laws or where the government in power is not ideologically opposed to LGBT equality. We conclude by exploring the implications of our findings for other international courts.
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The case concerned an Afghan family consisting of parents and two children, aged one and three years, who spent seven months at the Roszke transit zone situated at the Hungary- Serbia border. The ...transit zone in question has been the subject of previous court judgments in 'RR v Hungary' (App No 36037/17, 2 March 2021) and 'Ilias and Ahmed v Hungary' (App No 47287/15, 21 November 2019). Upon their arrival in the transit zone, the family applied for asylum. The applicants complained that their confinement in this transit zone constituted detention that violated articles 3 (prohibition of torture), 5 (right to liberty and security), 8 (right to respect for private and family life), and 13 (right to an effective remedy) in conjunction with articles 3 and 8 of the European Convention on Human Rights (ECHR). Regarding the mother and her children, a complaint was lodged alleging that there had been a failure to comply with the interim measure in violation of article 34 (individual applications) of the ECHR.
The scientific work focuses on reviewing the works of scholars who have studied various aspects of the implementation of judgments of the European Court of Human Rights. However, the issues of human ...rights protection and observance of the principle of competition during the consideration of an administrative offence case remain unaddressed.
A scientific analysis has been made of the positions of the European Court of Human Rights with regard to the protection of fundamental human rights in proceedings on administrative offences, and the involvement of the prosecutor in the proceedings with a view to ensuring that the parties are competitive and that the prosecutor fulfils his/her main purpose under administrative law, which is to supervise compliance with and correct application of the provisions of current legislation.
It has been proved that as a result of amendments to the Constitution of Ukraine, it was excluded Section VII “Prosecution” and was supplemented Section VIII “Justice” with a new Article 131-1. Therefore, under the new Ukrainian constitutional legal order, the prosecutor’s office as an institution performing the function of criminal prosecution is structurally integrated into the general system of justice. Considering that the place and role of the prosecutor's office is defined in the title of Section VIII of the Constitution of Ukraine “Justice”, this indicates that the special status of the prosecutor’s office in the constitutional system of power is enshrined, and that there is a functional link between the court and the prosecutor’s office, which forms the legal basis of the prosecutor’s office and directly affects the practical activities of the prosecutor's office as an institution of public power.
Based on the review of law enforcement practice, it has been noted that there is a need to revise the approach to administrative cases (under Article 130 of the Code of Ukraine on Administrative Offences) in the context of the European Court of Human Rights case law.
It has been proposed to amend and supplement the Code of Ukraine on Administrative Offences with provisions on the protection of fundamental rights of persons involved in administrative proceedings and to establish the appropriate procedural role of the prosecutor in the administrative process.
The problematic issues of legislative consolidation and application of forced feeding to convicts who refuse to take food in institutions of execution of punishment are considered.
An analysis of ...domestic and international legislation in the field of treatment of convicts, prohibition of torture and other cruel, inhuman or degrading treatment and punishment, principles of medical ethics and deontology regarding the admissibility of forced feeding of persons who have declared a hunger strike was carried out.
Special attention is paid to the analysis of the decisions of the European Court of Human Rights against Ukraine, which found a violation of Article 3 of the Convention on the Protection of Human Rights and Fundamental Freedoms in the context of the treatment of convicts during their forced feeding, which was classified as torture.
Emphasis has been placed on the fact that the Convention on the Protection of Human Rights and Fundamental Freedoms in itself does not prohibit forced feeding, the purpose of which is to save the life of a specific person who is in custody and who deliberately refuses to eat. At the same time, it has been emphasized the need to comply with the requirements established by the European Court of Human Rights regarding the implementation of this procedure.
It has been proposed to abandon and prohibit the forced feeding of a mentally healthy and capable person who has declared a hunger strike, contrary to his informed and voluntary refusal, in the form in which it currently exists, replacing it with artificial feeding (supportive therapy) with the express or necessarily implied consent of the person.
Why and how do international courts justify decisions with citations to their own case law? We argue that, like domestic review courts, international courts use precedent at least in part to convince ...‘lower’ (domestic) courts of the legitimacy of judgements. Several empirical observations are consistent with this view, which are examined through a network analysis of European Court of Human Rights (ECtHR) citations. First, the Court cites precedent based on the legal issues in the case, not the country of origin. Second, the Court is more careful to embed judgements in its existing case law when the expected value of persuading domestic judges is highest. These findings contribute to a developing literature that suggests international and domestic review courts develop their authority in similar ways.
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This case concerned a decision to revoke the applicant's residence permit and to impose a 10-year entry ban on him. The applicant, a Moroccan national, had been convicted of multiple offences, ...including drug-related crimes. He had resided in the Netherlands for over 40 years and had held a permanent residence permit. He had two children, both Dutch nationals, who resided with their mother in the Netherlands, but he had legally recognized only one of these children. He argued that the deportation order and entry ban violated his right to family life under article 8 of the European Convention on Human Rights.
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