Abstract
The living instrument doctrine of the European Court of Human Rights (ECtHR) is criticised as restricting the margin of appreciation of States and expanding the scope of the European ...Convention on Human Rights (echr). Systematic examination of this claim is usually overlooked in the context of the relationship between the admissibility and merits phase of ECtHR cases. This article considers this claim in the context of jurisdictional arguments on incompatibility ratione materiae (subject matter outside the scope of the Convention) and the link to the merits of the case. Case law of the ECtHR from January 1979 to December 2016 is assessed to elaborate four models of interaction between the margin of appreciation and living instrument doctrines. The article argues the need to go beyond consideration of expansion and restriction of the scope of the echr, and to assess the Court's appetite for allocating new duties to States based upon the case arguments and positioning of living instrument and margin of appreciation doctrines.
Abstract
There is little consensus between European States regarding the legal treatment of surrogacy in general and of transnational commercial surrogacy in particular. Against this background, the ...jurisprudence of the European Court of Human Rights (ECtHR) in this matter is of particular significance since it provides some common ground for the legal treatment of transnational commercial surrogacy in Europe. For this reason, the present paper will outline the development of the jurisprudence of the ECtHR on transnational commercial surrogacy, giving particular attention to the Mennesson and Labassee decisions, the Paradiso/Campanelli case, and the 2019 Advisory Opinion. On this basis, it will conclude by underlining the importance of the best interests of the child principle in the jurisprudence of the ECtHR on transnational commercial surrogacy.
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DOBA, IZUM, KILJ, NUK, ODKLJ, PILJ, PNG, PRFLJ, SAZU, UILJ, UKNU, UL, UM, UPUK
This article explores a core question in the law of slavery: how was an individual's status as slave or free socially discerned and formally adjudicated? Under the doctrine of “freedom by ...prescription,” a person who had in good faith “lived as free” could argue that the absence of exercise of ownership for a specified term of years extinguished a prior owner's title. In the medieval Siete Partidas of Alfonso the Wise, which continued as a legal point of reference in Louisiana well after the end of Spanish rule, both the law of status and the law of property confirmed this path to freedom. From 1808 onward, Louisiana jurists and legislators sought to eliminate the remnants of the doctrine, but it lingered in popular and even judicial consciousness. The 1853 kidnapping of a woman named Eulalie Oliveau, six of her children, and eleven of her grandchildren for sale in the New Orleans slave market brought the question of “freedom by prescription” back into the courts. The awkward resolution of that case, and the uncertain fate of Eulalie Oliveau and her children, foreshadowed Reconstruction-era struggles over the content of legal freedom and the rights that freedom might bring to those who had once been held as property.
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BFBNIB, NMLJ, NUK, PNG, PRFLJ, SAZU, UL, UM, UPUK
Control orders are restrictive measures placed on individuals that pose an identified threat to public safety as a component of domestic counterterrorism policy. Control orders and their compliance ...with International Human Rights Law have been the subject of extensive litigation within the European Court of Human Rights and domestic states courts. Controlling provisions are applied in either the preconviction or the post-release stage of a state's criminal procedure. Preconviction control orders face significant criticism for the potential conflicts with due process protections of the right to a fair trial and the broader right of liberty.
This Note describes the current jurisprudence and analyzes its potential application to states that have yet to fully establish control order regimes. Because there is a lack of evidence indicating that preconviction control orders are necessary to prevent coordinated terrorist attacks, this Note finds that states should weigh the protection of individual liberties over the undetermined benefits of such restrictions.
This Note concludes that states should only utilize pre-conviction control orders in the narrowest sense with ample oversight and judicial review mechanisms. It also concludes, however, that post-release control orders should be adopted into any system focused on terrorism prevention to prevent recidivism and ensure the reintegration of individuals previously engaged in terrorism-related activities into society. This Note is particularly pertinent to the number of Balkan states that are currently planning or considering implementing extensive control order regimes.
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IZUM, KILJ, NUK, ODKLJ, PILJ, PNG, PRFLJ, SAZU, UL, UM, UPUK
This article takes a closer look at intimate partner violence (IPV) and its semantical, political, and legal interactions with crisis and crisis discourse. Starting from the fact that IPV has been ...called a “shadow pandemic” and a “hidden crisis”, the article conceptualizes two parallel phenomena: how the COVID-19 pandemic — and crises in general — impact on IPV by exacerbating vulnerabilities and how crisis discourse has been mobilized to argue for a responsive state and strong positive obligations to combat and reduce IPV. The article then draws a parallel between crisis discourse and vulnerability reasoning, analyzing how vulnerability has played a similar role within the case law of the European Court of Human Rights (ECtHR) and led the latter to develop a consistent strand of case law concretizing states’ positive obligations. The article also takes a critical stance, examining the risks of crisis discourse and vulnerability when viewed through a crisis lens. To counter these risks, it argues for a nuanced, structural, and dynamic understanding of vulnerability and a focus on resilience-building institutions and mechanisms. Within the ECtHR case law, this signifies elaborating upon the already existing positive obligations, including by taking inspiration from the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). Such an approach is necessary to leave behind the emergency time usually associated with crises and work toward lasting structural change.
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DOBA, EMUNI, FIS, FZAB, GEOZS, GIS, IJS, IMTLJ, IZUM, KILJ, KISLJ, MFDPS, NLZOH, NUK, ODKLJ, OILJ, PILJ, PNG, SAZU, SBCE, SBJE, SBMB, SBNM, UILJ, UKNU, UL, UM, UPUK, VKSCE, ZAGLJ
Little is known about the (legal) possibilities and practice of intervention before the Court of Justice of the EU, despite a seeming growth in strategic litigation by NGOs, especially in areas such ...as migration and the environment. This article fills this gap by looking at the legal framework as well as conducting empirical research. It also compares the practice of intervention before the CJEU with its counterpart in Strasbourg, the European Court of Human Rights. The findings show that intervention before the CJEU is difficult and hence limited. The more welcoming approach of the ECtHR can be a source of inspiration for the CJEU to relax its restrictive approach. The latter is justified on the basis of reducing differences between national procedural rules on intervention as well as the potential of interventions to improve the quality and reasoning of CJEU judgments.
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This research was aimed to study the legal basis of the organization and activities of the European Court of human rights, as well as the analysis of issues arising in the protection of human rights ...in the European Court of human rights. To this end, the categories of cases within the competence of the Court were identified, the analysis of the provisions of the European Convention on human rights and freedoms. The order of formation, structure and jurisdiction of the Court are investigated. Reveals the conditions for the submission of complaints referred from the applicant States or individuals. The problems of the admissibility of complaints.
On 26 April 2018 the European Court of Human Rights ('ECtHR') issued a landmark decision on statelessness in the case of 'Hoti v Croatia' ('Hoti'). The Court found that Croatia's failure to ensure ...stability of residence for the stateless Mr Bedri Hoti, the applicant, amounted to a violation of art 8 of the European Convention on Human Rights ('ECHR') - his right to private and family life.
On 26 April 2018 the European Court of Human Rights ('ECtHR') issued a landmark decision on statelessness in the case of 'Hoti v Croatia' ('Hoti'). The Court found that Croatia's failure to ensure ...stability of residence for the stateless Mr Bedri Hoti, the applicant, amounted to a violation of art 8 of the 'European Convention on Human Rights' ('ECHR') - his right to private and family life.
During the Interlaeken and Brighton conferences in 2010 and 2012 on the reform of the European Court of Human Rights (ECtHR or the Court) the High Contracting Parties demanded an increased focus of ...the Court on subsidiarity when considering cases. The ECtHR had been criticized by several states, in particular the United Kingdom (UK), for second-guessing domestic decisions of the democratically elected legislator. A procedural rationality approach could answer this critique. This approach implies that the Court takes the quality of the decision-making procedure as a decisive factor for its assessment of the proportionality of a domestic measure. In several recent high-profile cases the Court has adopted such approach providing the defending state with a wide margin of appreciation due to the high quality of the decision-making procedure. This contribution discusses to what extent the Court has applied this approach pre- and post-Brighton and the potential pitfalls. The contribution concludes that this approach could provide a vital leeway between the Court's supervisory and subsidiary role in the protection of human rights if applied coherently and consistently. However, it is no magic solution to silence the criticism against the Court as the opponents of the Court do not just reject its approach to proportionality review, but judicial review of legislative decisions altogether.
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CEKLJ, NUK, PRFLJ, UM, UPUK
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