VITKAUSKAS, Dovydas and DIKOV, Grigoriy
Protecting the right to a fair trial under the European Convention on Human Rights — Council of Europe. 2012
Freedom of Expression and the Right to Reputation: Human Rights in Conflict / Stijn Smet. In: American University International Law Review, vol. 26 (2010), No 1, pp. 183-236)
Ever since the European Court of Human Rights has recognised the existence of a right to protection of reputation under the European Convention on Human Rights, a conflict between Convention rights arises in defamation cases. In such situations of conflict between freedom of expression and the right to reputation, the principle of indivisibility of human rights requires that both rights carry a priori equal weight. Yet, the research conducted for this article indicates that the Court engages in preferential framing and incomplete reasoning when attempting to resolve the conflict in its defamation case law. In order to pre-empt such preferential framing and to improve the reasoning of the Court the article proposes a theoretical model for the resolution of conflicts between human rights. The jurisprudence of the Court on the conflict between freedom of expression and the right to reputation in defamation cases is critically analysed through the lens of this model. The article demonstrates how the model might prove to be a useful tool to improve the legal reasoning of the Court in defamation cases.
European Union Agency for Fundamental Rights / European Court of Human Rights — Council of Europe
Handbook on European non-discrimination law / European Union Agency for Fundamental Rights / European Court of Human Rights — Council of Europe. 2011
Sejdic and Finci v. Bosnia and Herzegovina / Marko Milanovic. In: American Journal of International Law, vol. 104 (2010)
This case note analyzes the Sejdic and Finci v. Bosnia and Herzegovina case decided by the Grand Chamber of the European Court of Human Rights on 22 December 2009. This was the first case in which the Court applied the far-reaching general prohibition of discrimination in Protocol No. 12 to the European Convention, and did so with regard to a politically volatile situation of electoral discrimination based on ethnicity in a post-conflict society — discrimination that was in fact institutionalized in order to end a war. Likewise, as the implementation of the Court’s judgment requires an amendment to the Bosnian Constitution, the case poses significant compliance challenges, which are also likely to arise in a number of other cases currently pending before the Court. All of these issues make this a case deserving of continuing attention.
Islam in the Secular Nomos of the European Court of Human Rights / Peter Danchin. University of Maryland Legal Studies Research Paper No. 2010-41
Since 2001, the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political order in Europe. These controversies raise anew two critical questions for ECHR jurisprudence: the first regarding the proper scope of the right to religious freedom; and the second regarding the conceptual relationship between religion and the public sphere internal to not only European nation-states but the supranational nomos of the Strasbourg Court itself.
The Article argues that a complex historical and normative relationship between Christianity and secularism can be seen to continue to define the modern contours and shape of the public sphere and the right to religious liberty alike and that assertions of claims of right by Muslims have thus made visible both the historical contingency and cultural particularity of these norms and forms of legal ordering. An argument is advanced which views the Court’s reasoning under Article 9 as entangled with not one but two rival liberal traditions: one dialogic which defines the right to religious liberty in strongly value pluralist terms and the public sphere in terms of social peace; the second rationalist which defines the right more narrowly in terms of autonomy and rational choice and the public sphere in terms of a particular substantive theory of justice. The Article concludes by suggesting that a better understanding of how religious freedom emerged in early modern moral and political thought will show that the second pluralist strand is deeply encoded in the logic and normative structure of Article 9 and how this may open new pathways by which to re-imagine the current limits of the Court’s jurisprudence.
This essay tracks the concept of militant democracy in the jurisprudence of the European Court of Human Rights, where it has migrated from a principle that authorizes a state to act in a militant manner to preserve democratic processes to one that entitles a state to establish perimeters and guard against threats of a different kind. Militant democracy now authorizes a state to assume a militant stance toward the exercise of religious freedom that threatens substantive conceptions of democracy instantiated in its constitutional order. The essay identifies four substantive conceptions of democracy – liberal democracy, secular democracy, republican democracy, and conservative democracy – to which militant democracy has migrated in recent years. It argues that militant democracy’s migration signals an ominous shift in the way in which the European Court of Human Rights comprehends the relationship between religion and state power.
WHITE, Robin C.A. and BOUSSIAKOU, Iris
Separate opinions in the European Court of Human Rights / Robin C.A. White and Iris Boussiakou. In: Human Rights Law Review, vol. 9, issue 1, p. 37-60
Separate opinions, both concurring and dissenting, have been a feature of judgments of the European Court of Human Rights since its earliest days, but detailed studies of their incidence and impact have until recently been sparse. This article, based on an AHRC-funded research study, offers a survey of the research literature and describes the outcome of its own consideration of such opinions. The use of separate opinions in the European Court of Human Rights is significant, but the incidence of sole dissents by national judges is very low. It would appear that the main determining factor in the writing of a separate opinion is judicial temperament. There is some evidence that the background of judges prior to their election to the Court has some influence on their approach to writing separate opinions. The Court, however, demonstrates high levels of collegiality and the use of separate opinions contributes to the transparency of its decision-making.
The Russian Federation, Protocol No. 14 (and 14 bis), and the battle for the soul of the ECHR / Bill Bowring. — In: Goettingen Journal of International Law, vol. 2, no 2 (2010), p. -617
With a focus on the Russian Federation, this article examines the adoption by the Council of Europe of Protocol No.14 to the European Convention on Human Rights (ECHR), and its long-delayed coming into force. The author starts with the question of the original object and purpose of the Council, and how they have now changed. This leads to an analysis of the nature of the crisis – a crisis of success – now faced by the ECHR system, and the reform process which started, on the 50th anniversary of the ECHR, in 2000. After describing Protocol No.14 itself, and the discussion which has surrounded it, the article turns to the central issue. This is not the question of procedural reform, or even admissibility criteria, but what lies behind – the “soul” of the ECHR system. Should the Strasbourg Court remain a court which renders “individual justice”, albeit only for a handful of applicants and with long delays; or should it make become a court which renders “constitutional justice”? The article focuses on the specific problems faced by Russia in its relations with the Council of Europe; and an analysis of the lengthy refusal by the Russian State Duma to ratify Protocol No. 14. The author concludes with an attempted prognosis.
Comparative law method in the jurisprudence of the European Court of Human Rights in the light of the rule of law / Monkia Ambrus. – In: Erasmus law review, vol. 2, issue 3 (2009), p. -371
In several cases, comparative law exercises have been given excessive weight, which has given rise to confl icting interpretations in the case law of the European Court of Human Rights (ECtHR). This use of the comparative law method by the Court has been widely criticised. The critical voices have generally argued in terms of what is prohibited by the principle of the rule of law, which the Court itself is also bound to take into account, namely the arbitrary use of power. In the light of these criticisms, it is a challenging task to examine whether and to what extent the comparative law method complies with the principle of the rule of law, which is the aim of this paper. An analysis of several ECtHR cases demonstrates that in many respects the comparative exercises of the Court indeed do not comply with the requirements set by the formal conception of the rule of law. The application of the comparative law method is neither consistent nor suffi ciently transparent. In addition to exploring the problematic aspects of the application of the comparative law method, the paper also formulates some recommendations in order to bring this method into accordance with the principle of the rule of law.
Protecting socio-economic rights through the European Convention on Human Rights: trends and developments in the European Court of Human Rights / Ellie Palmer. – In: Erasmus law review, vol. 2, issue 4 (2009), p. -425
This article is concerned with jurisprudential trends and developments in the protection of socio-economic rights through the interpretation of the European Convention on Human Rights (ECHR). It focuses on the potential to gain access to health care and welfare services, and the financial means to acquire them, through the development of positive obligations in ECHR rights. It demonstrates that, under Articles 3 and 8 ECHR, there has been progress towards a principled jurisprudence of positive obligations to provide for the basic human needs of vulnerable dependent individuals in a range of contexts, although the limits of state responsibility remain fluid and contested. Secondly, it argues that, in the light of differences between national policies and administrative procedures for the fair distribution of public resources, the incremental approach to the protection of socio-economic rights through the interpretation of Articles 6 and 14 ECHR remains problematic. Nevertheless, it is suggested that recent developments in Article 14 jurisprudence, particularly as demonstrated in the case of D.H. v. Czech Republic, signal a shift from a narrow formalistic approach to dealing with issues of discrimination to one that may be more capable of addressing systemic inequalities in the distribution of social provisions to vulnerable individuals and marginalised groups.