‘Mental Link’ as a Condition for Punishment Under Article 7 of the European Convention on Human Rights

Regional human rights courts like the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court of Human and People's Rights (ACtHPR) have become popular sites of mobilization for victims and activists who seek justice when justice fails at home. Besides being platforms for individual remedy, human rights courts increasingly shape social norms and state policy within countries, making them attractive avenues for rights advocates to develop new norms or to push domestic authorities to reform legislation. The judges of these courts can decide, for example, whether same-sex couples have a right to be married, if prisoners have the right to vote or receive HIV/AIDS treatment, or when a state can deport illegal immigrants to a country where they will likely be tortured. As these courts pass their judgments, they often find themselves in conflict with states that are violating human rights of marginalized groups on a large scale and are unwilling to implement international rulings. Although international human rights courts have become increasingly popular venues among victims and activists who seek justice when justice fails at home, we are only beginning to understand how activists play roles in shaping the development of regional human rights courts' case law—the body of judgments that shapes how judges will make their decisions in the future. We now have plenty of international relations and international legal research on the interactions between states and international courts: how judges in these courts wrestle between deferring to the interests of member state governments whose actions are on trial and sticking closely to the conventions' fundamental yet evolving principles (Alter et al., 2019; Helfer & Voeten, 2014). As some states begin to resist international courts' authority, scholars have begun to examine the dynamics of this backlash (Hillebrecht, 2022; Madsen et al., 2018; Sandholtz et al., 2018). Recent studies have also demonstrated that human rights advocates—whether NGOs or individual lawyers—have a significant impact on shaping the jurisprudence of international courts and the impact judgments have in concrete locations (Kahraman, 2018; Sundstrom, 2014; van der Vet, 2012; Kurban, 2020; Conant, 2018; Harms, 2021; Cichowski, 2016; Hodson, 2011; Haddad, 2018). Meanwhile, these advocates themselves have been subject to repression and stigmatization by governments as part of the backlash phenomenon. Without an adequate understanding of the factors shaping activists' engagement with international courts, we risk undervaluing their strategic impact on the expansion of case law, the human rights protection of marginalized groups who cannot find remedies at home, and the domestic implementation of these judgments in an age of state backlash. In this section, we summarize the three papers contained in this symposium and their original contributions to these themes. Over the last decade, dozens of countries have erected legal barriers or started vilifying campaigns to stymie the work of NGOs (Buyse, 2018; Chaudhry, 2022). One tactic in this toolkit is the enactment of burdensome regulation on NGOs that receive funds from foreign donors as they allegedly promote foreign agendas (Christensen & Weinstein, 2013; Dupuy et al., 2021). States that frequently abuse human rights are especially prone to target NGOs that engage in strategic litigation (Hillebrecht, 2019). Most NGOs depend on foreign funding, and NGOs that litigate international cases fall disproportionately in this category, but do funders affect the selection of cases? In “Foreign Agents or Agents of Justice? Private Foundations, NGO Backlash, and International Human Rights Litigation,” Heidi Haddad and Lisa Sundstrom examine the extent to which Western donors, particularly private foundations, have encouraged NGOs in Europe to litigate at the ECtHR as a human rights advocacy strategy. They examine overall patterns of donor funding and NGO litigation records, and look in more detail at the case of Russian NGOs' foreign funding and litigation records. The analysis is extremely timely, as the Russian government's criminalization of independent civil society actors, especially in the human rights field, and their accusation that foreign funding turns NGOs into “foreign agents” have been crucial elements of the Russian regime's autocratization. This claim has also provided fuel for Russia's disenchantment with the ECtHR in recent years, contributing to the assessment of many observers that Russia's full-scale attack on Ukraine was the last straw in an inevitable collision course leading to its exit from the Council of Europe. Haddad and Sundstrom debunk the idea that foreign donors are pushing NGOs toward strategies of human rights litigation. Instead, they argue, there is more evidence that NGOs themselves promoted the mechanism of international litigation as a strategy that donors later adopted. This article is a poignant reminder of the advocacy tools that Russian human rights activists and citizens have lost as a result of their government's departure from the Council of Europe, including ECtHR jurisdiction. Yet it also provides insight into the likely roles of foreign donors in other country cases where NGOs are using international court litigation as a human rights advocacy strategy, which is often a target of the ire of national governments, as explored in the next article in the symposium. When states attack human rights NGOs within their borders and/or international human rights courts themselves, how does this affect the willingness of those NGOs to take cases to international courts, and the ways in which they do so? De Silva and Plagis ask this question in their article about state backlash against NGOs in the case of Tanzania and the African Court on Human and Peoples' Rights. A fascinating empirical question they pose is: does state backlash against NGOs increase NGO litigation at international courts (to contest state repression at those courts and use international mechanisms when domestic ones are not available), roughly in line with Keck and Sikkink's famous “boomerang pattern” (Keck & Sikkink, 1998), or decrease it due to heightened fear and restricted NGO capabilities that state repression creates? Employing a process-tracing analysis of NGOs' involvement in three cases before the African Court at different stages of the Tanzanian government's backlash against the Court, De Silva and Plagis find that “two-level backlash” by states can result in both phenomena, either promoting or deterring NGO legal mobilization at international human rights courts, depending on certain conditions. The three selected cases concerning the death penalty, the rights of persons with albinism, and the rights of pregnant schoolgirls and mothers, which took place at different time periods, demonstrate a number of patterns of state backlash interacting with NGO strategies. The authors find that domestic-level state backlash deterred domestic NGOs from partnering with international NGOs in litigation, but that such backlash, when it repressed domestic political and legal mobilization opportunities, actually encouraged both Tanzanian and international NGOs to turn to the African Court more frequently to seek remedies. International-level backlash in turn only deterred NGOs from international litigation when such backlash consisted of state efforts to restrict NGOs' ability to engage in litigation, and not when the international backlash was in the form of routine noncompliance with African Court rulings. Importantly, the authors find that NGO responses to state backlash were significantly shaped by their degree of legal consciousness and expertise with the rules, proceedings, and workings of the African Court. Those NGOs with less knowledge and experience were more likely to back away from engaging with the Court under the pressure of state backlash. De Silva and Plagis conclude that “NGOs' persistent human rights advocacy in the face of state backlash is a double-edged sword,” in the sense that they may not be deterred by state backlash initially, but there is a danger that their continued determination to engage in international litigation could prompt governments to engage in even more severe forms of backlash, with critical impacts on international courts and already vulnerable human rights defenders. Rights advocates have a growing menu of institutions and courts available to them. How do activists choose at which institution to lodge their cases in a world where legal remedies have diversified, or as some have argued, fragmented (Koskenniemi & Leino, 2002)? In “What Makes an International Institution Work for Labor Activists? Shaping International Law through Strategic Litigation,” Filiz Kahraman goes beyond the tendency of legal mobilization studies to only examine how activists interact with a single court or institution. Instead, Kahraman opens up how rights advocates imagine which institution is most receptive to their claims. Drawing on a comparative interview study of British and Turkish trade union activists and their legal mobilization campaigns at international courts and quasi-judicial institutions like the International Labor Organization (ILO), Kahraman examines how activists first probe and then strategically identify which court or international institution is most susceptible to their primary goals of influencing structural reforms and setting new norms. Through this probing process—or dynamic signaling game between courts and litigants—activists push a court's jurisprudence and case law into new issue areas. For instance, at the ECtHR, Turkish trade unionists challenged domestic courts' ruling that public sector workers did not have the right to establish unions, even though the ECtHR had no established case law on labor rights in 1990s. They won the case, with the ECtHR finding that Turkey violated the right of public sector workers to unionize. These cases not only had an impact within Turkey, but over the next decades, similar cases brought by British unionists would spin off the early precedent set by the Turkish legal mobilization efforts. Kahraman argues that they ultimately pushed the ECtHR to recognize the basic trade union rights as fundamental human rights. Kahraman sheds light on the often hidden strategies behind international litigation. Activists litigate not just for the immediate impact on the current case they work on, but how they envision that all the cases they work on may shape norms and domestic structural reforms further in the future. Whether an institution is perceptive of claims lies in the eye of the beholder. Kahraman finds that besides targeting institutions with high compliance rates, they also take cases to institutions with low rates of compliance, especially “if these institutions have extensive judicial authority to create new international norms.” So, it is not the de jure protection set by an international courts, but rather how activists perceive the juridical responsiveness and judicial authority of courts—or, how judges adopt either an activist approach or restraint in response to incoming cases and how willing states are to implement cases of a court, respectively—that determines why activists select certain courts or quasi-judicial institutions (like the ILO). Kahraman gives us new tools to interpret how activists perceive authority and receptiveness and respond to opportunities. Rather than static external legal remedies, courts and quasi-judicial institutions are opportunity structures that are malleable to the strategic vision of the activist or litigant. The articles in this symposium together reveal a number of key overlapping insights. At the broadest level, they demonstrate that activists' behaviors and strategies influence international courts' jurisprudence, politics within states, and the human rights outcomes of everyday citizens—and these influences have often been hidden in our existing canon of research on international courts. In addition, all of these articles show that, while activists may face challenges in their efforts, often including significant backlash from their home state governments, they also continue to retain significant agency through their creative efforts to develop legal strategies and circumvent state repression. Activists perennially innovate: sparking the ideas that inspire donors who fund them; calculating how to continue their litigation work when government actors threaten them; and taking risks in litigation to push courts to expand how they define human rights. However, along with these uplifting conclusions, there are worrying patterns that demand future research. States are increasingly pushing back against the powers of international courts to bind them to costly measures, and as this symposium has shown, national governments often point to activists as contributors to this “problem” of invasive international human rights standards. A growing body of research has tracked how human rights defenders of all kinds globally are under threat from actors like governments and corporations who disagree with their contentious actions. We need more studies that gather comprehensive data and systematically track these threats, specifically with regard to activists who engage in international human rights litigation. We suspect that such activists are likely disproportionately targeted due to the international visibility of their complaints. We also desperately need research into possible innovative responses to these threats to activists—responses from activists, funders, governments of countries that support human rights, and international courts themselves. Freek van der Vet is a University Researcher at the Erik Castrén Institute of International Law and Human Rights, Faculty of Law, University of Helsinki and the principal investigator of the Toxic Crimes Project. Lisa McIntosh Sundstrom is Professor of Political Science at the University of British Columbia. She is the director of the ActinCourts network at UBC and conducts research on legal mobilization by Russian activists.

The respect of fundamental rights is one of the cornerstones of the European Union. It is a precondition of membership and it is listed among the core values of the Union. Still, as the recent controversies between the European Commission and some Member States revealed, EU law contains no effective mechanism to compel Member States to respect fundamental rights and freedoms in general. This paper presents and examines the EU architecture of fundamental rights protection. First, it demonstrates that the EU Charter of Fundamental Rights (the “EU bill of rights”) applies predominantly to EU institutions (that is, “federal” institutions); it applies to Member States only when they act as the EU’s “agents” (when they implement EU law). Although this approach may appear to be illogical, it does have its clear and legitimate reasons and it is far from unprecedented. In fact, it very much resembles the first century of the United States constitutional architecture. It is to be noted that though the EU does have the means to call Member States to account in case they violate fundamental rights, this action is a “nuclear bomb” and is hardly apt for handling human rights problems; not to mention that the application of this is almost politically unattainable. Second, it demonstrates how, in certain cases at least, the Commission “cooked from what it had” in that it used unconnected (that is, non-human-rights-related) provisions of EU law to shelter fundamental rights (e.g., the free movement principles of the internal market to protect minority rights or the prohibition of discrimination based on age to protect the independence of the judiciary). The use of the “supportive by-effects” of these economic rights is novel but not fully unprecedented. In fact, it resembles how the U.S. Congress used its commerce power to protect civil rights. Third, it argues that although the present architecture is certainly not the best of all possible worlds and the full federalization of human rights is a tempting option, the bifurcation of the “federal bill of rights” (the EU Charter of Fundamental Rights) has a solid basis and federalization is compelling only regarding those fundamental values and rights the violation of which qualifies as a “ground of divorce.” Accordingly, while the current system obviously calls for a reform, in terms of approach, this constitutional architecture has its merits in the context of what the multicolored European federation needs. On the one hand, the core of human rights protection cannot be subject to territorial variations and the violation of the nucleus of these rights cannot be justified with reference to constitutional identity. On the other hand, outside this sphere, to use the terminology of the European Court of Human Rights, European federalism demands respect for the Member States’ margin of appreciation.

While some regions of the world still do not have supranational structures for the protection of human rights and fundamental freedoms, Europe has two systems that are competing on some levels and complementary on others. The European Court of Human Rights in Strasbourg is the guardian of the European Convention on Human Rights and Fundamental Freedoms and accepts complaints by individuals alleging a breach of one or more Convention articles by acts or omissions of the authorities of one of the forty-seven Contracting Parties of the Council of Europe, provided certain conditions of admissibility are met. The Court of Justice of the European Union, based in Luxembourg, is the guardian of the EU Charter of Fundamental Rights and decides in specific cases whether acts or omissions of the EU institutions and/or certain acts or omissions of the authorities of one of the twenty-eight Member States of the European Union are in conformity with the guarantees provided in the Charter. While there are differences in geographic coverage and in the substantive scope of protection, some cases can and have been brought before both supranational courts. Since the parallel existence of two supranational catalogs of human rights and two supranational courts for their interpretation and enforcement is quite unique, this article compares some of the strengths and weaknesses of each of the two systems and attempts some proposals for the future development of both of them. For the benefit of less specialized readers, we first recall the history and evolution and some of the most important features of each of the two systems. This includes a good introduction to the supremacy and direct effect of EU law in the Member States and how the preliminary reference procedure before the European Court of Justice in Luxembourg differs from other international court procedures, including the International Court of Justice in The Hague and the European Court of Human Rights in Strasbourg. The second half of the paper focuses on the key problems of the ECtHR, namely the case-load problem, the delays, the docket control mechanisms, and the low levels of compensation in many cases that deter applicants. Existing proposals for reform are discussed and some new ones are added. Finally, some key issues in the ECJ in the context of fundamental rights protection are analyzed, namely the question whether the EU should still accede to the ECHR, and the question whether the Member States should be subject to the obligations enshrined in the Charter for all their actions or only when they are implementing EU law.

The Court of Justice of the European Union faces a wide variety of human rights decisions. In common with national courts, it has to ensure that the actions of the European Union administration and legislature comply with human rights. These human rights are found in the general principles of Community law, including, inter alia, those of the European Convention of Human Rights, in addition to the EU Charter of Fundamental Rights and Freedoms. When doing so, the CJEU may find that it is judging not only the actions of the institutions of the European Union, but also actions of the administration and legislature of the Member States as they implement provisions of EU law, or act as agents of the EU administering EU law. In addition, the CJEU will adjudicate on actions of the Member States when they are acting within the sphere of European Union law. This can occur when Member States derogate from other provisions of EU law on the grounds of protecting human rights, or where Member States fail to implement European Union law provisions that either directly or indirectly protect human rights. This diverse nature of the human rights jurisdiction of the CJEU poses unique problems for human rights adjudication in the EU. The Court is at one and the same time protecting human rights from abuse by its own measures and policing the activities of its Member States. Moreover, the lines between these roles are blurred. For the CJEU to provide a human-rights compatible interpretation of the provisions of a Directive, for example, not only restricts the actions of the EU legislature, but also limits the actions of Member States. In addition, when the CJEU takes on the role of policing the actions of Member States, it does so within the context of the ECHR, given that all Member States, and potentially soon the EU itself, are signatories to the ECHR and the provisions of the ECHR are sources of general principles of Community law as well as being mirrored in the first Chapter of the Charter. Yet for the CJEU to perform the same function as the European Court of Human Rights would lead to replication of roles, as well as cause problems for the CJEU’s assertion of the supremacy of directly effective EU law over national law which would appear to run contrary to the margin of appreciation granted by the ECtHR to its signatory States. This chapter aims to provide the groundwork for developing a theory of human rights adjudication for the CJEU, looking specifically at the complexities that arise when deciding cases that require control over actions of Member States. It builds on consensus found in the literature calling for the need for the CJEU to be sensitive to competing requirements of consensus and divergence in the protection of human rights, drawing on the constitutional pluralism underpinning the EU. It will first explain the need for both uniformity and diversity in human rights protections in the EU. It will then explain how these needs can best be met through a dialogue theory of human rights adjudication, with Article 267 facilitating the provision of varying degrees of authority to determine rights-issues to either the CJEU or the national courts. The final section discusses the factors that should influence whether a rights-issue is more suited for resolution by the CJEU or national authorities, building on Weiler’s theory and explaining its precise application through a series of examples drawn from recent case law.

Í meginmáli EES-samningsins er ekki að finna nein fyrirmæli um vernd mannréttinda samkvæmt samningnum. Því féll það í hlut EFTA-dómstólsins að móta reglur þar að lútandi innan EFTA-stoðarinnar. Samkvæmt dómaframkvæmd hans er nú ljóst að mannréttindavernd telst til almennra meginreglna EES-samningsins. Við mótun efnis þeirra er tekið mið af ákvæðum Mannréttindasáttmála Evrópu og dóma Mannréttindadómstólsins. Grundvöllur meginreglunnar um mannréttindavernd er einsleitni og staða mannréttindaverndar líkt og EFTA-dómstóllinn hefur mótað hana er sambærileg við það sem gilti innan ESB-réttar áður en Réttindaskrá Sambandsins varð bindandi. Réttarstaðan samkvæmt EES-rétti hefur komið til athugunar hjá Mannréttindadómstól Evrópu í kærum gagnvart Noregi. Í dómum hans er tekið mið af dómaframkvæmd EFTA-dómstólsins og hvernig vernd mannréttinda er tryggð innan EFTA-stoðarinnar. Hann hefur hafnað því að leggja til grundvallar svonefnda Bosphorus forsendu um EES-samninginn líkt og hann gerir um vernd mannréttinda samkvæmt ESB-rétti. Í henni felst að Mannréttindadómstóllinn gengur út frá því að reglur Sambandsréttar séu fullnægjandi nema að leitt sé í ljós að í tilteknu máli sé þeim augljóslega ábótavant. Innan ESB-stoðarinnar ræðst mannréttindavernd innan gildissviðs EES-samningsins af ákvæðum Réttindaskrár Sambandsins. Eftir að hún varð bindandi með gildistöku Sáttmálans um starfshætti Evrópusambandsins hefur mikilvægi hennar aukist verulega og gegnir hún lykilhlutverki við skýringu ESB-réttar. Réttindaskráin er ekki hluti af EES-rétti og því ekki bindandi fyrir EFTA-ríkin. Við nánari athugun á ákvæðum Réttindaskrárinnar er niðurstaðan sú að ekki sé ástæða til að telja að tilvist og áhrif Réttindaskrárinnar hafi í för með sér að ekki verði unnt að viðhalda einsleitni samkvæmt EES-samningnum. The main part of the EEA Agreement does not lay down any rules regarding the protection of human rights. Accordingly, it fell to the EFTA Court to determine the regulation thereof within the EFTA pillar of the Agreement. It follows from the case law of the EFTA Court that the protection of human rights is a general principle of EEA law. The content of the principle is inspired by the provision of the European Convention on Human Rights and the case law of the European Court of Human Rights. The legal basis of this general principle is homogeneity and the status of human rights protection within the EFTA pillar is comparable to the prevailing situation within EU law prior to the Charter of Fundamental Rights becoming a binding legal instrument. The protection of human rights under the terms of the EEA Agreement has been the subject of examination by the European Court of Human Rights in cases against Norway. These judgments have taken note of the jurisprudence of the EFTA Court and the general principle of protection of human rights established thereunder. The Court of Human Rights has not extended the so-called Bosphorus presumption, applicable in the context of EU law, to the EEA Agreement. According to that presumption, the Court presumes that human rights protection under EU law is sufficient for the purposes of the Convention, unless it is demonstrated to be manifestly deficient in a particular case. Within the EU pillar of the Agreement, the protection of human rights under the Agreement is governed by the Charter of Fundamental Rights. After it became binding, following the entry into force of the Treaty on the Functioning of the European Union, its significance has grown considerably, and it now plays a key role in the interpretation of EU law. The Charter is not part of the EEA Agreement and thus not binding for the EFTA States. On a closer examination of the Charter, it may be concluded that there is no reason to assume that the existence and influence of the Charter should lead to homogeneity within the EEA not being maintained.

This chapter traces the development of EU law-based fundamental rights, from early Court of Justice of the European Union (CJEU) case law up to the Charter of Fundamental Rights. It considers the EU's relationship with the Council of Europe, focusing on how the CJEU and the European Court of Human Rights (ECtHR) attempt to avoid conflicting interpretations of overlapping rights, and whether the EU can in fact sign up to the European Convention on Human Rights (ECHR). It is important to remember that the ECtHR and the ECHR are not part of EU law. The ECHR is an international human rights treaty administered by the Council of Europe. It is applied and interpreted by the ECtHR, and is transcribed into UK law in the form of the Human Rights Act 1998. The EU, meanwhile, has the Charter of Fundamental Rights as its human rights ‘treaty’. The chapter then looks at the relationship between the CJEU and the ECtHR, and examines post-Brexit fundamental rights.

The UK general election of 7 May 2015 has returned a Conservative government so that the Conservative Party’s plans for reforming human rights law in the United Kingdom are likely to become reality. It is therefore important to discuss some of the legal implications a repeal of the Human Rights Act and withdrawal from the ECHR might bring. This policy paper is the product of a one-day workshop held at Edinburgh Law School on 13 February attended by Ed Bates, Christine Bell, Colm O’Cinneide, Fiona de Londras, Sir David Edward, Alan Greene, Paul Johnson, Kanstantsin Dzehtsiarou and Tobias Lock. Key findings include: Any attempt to repeal and/or replace the Human Rights Act would have to take into account the devolution settlement. A repeal of the Human Rights Act might require the consent of the devolved legislatures under the Sewel Convention. A repeal would at present run counter to the UK’s international treaty obligations under the British-Irish Agreement which was incorporated in, and agreed as part of the UK-Ireland obligations under the Belfast (Good Friday) Agreement. A new Bill of Rights may require the consent of the devolved legislatures. If the Human Rights Act were not replaced, individuals would still be able to rely on common law remedies, as far as they exist, as well as the EU Charter of Fundamental Rights in cases in which the UK has acted within the scope of EU law. Hence, in some areas repealing of the Human Rights Act without more will not lead to the ‘regaining of sovereignty’ anticipated by the proponents of such proposals. A replacement of the Human Rights Act with a British Bill of Rights would enable Parliament to provide for the protection of additional rights, such as a right to trial by jury. It would also allow Parliament to introduce certain procedural changes, such as no longer making it mandatory for courts ‘to take into account’ the case law of the European Court of Human Rights or to read legislation ‘as far as it is possible to do so’ compatibly with Convention rights. It should be noted, however, that the Supreme Court has relaxed the conditions under which courts are required to follow the European Court of Human Rights and that a removal of these requirements could result in an increased number of cases brought against the UK in the European Court of Human Rights. A complete withdrawal from the European Convention on Human Rights would deprive people in the UK from the possibility of bringing their human rights complaints to the European Court of Human Rights. However, it would not relieve the UK of the duty to comply with judgments already handed down by the European Court of Human Rights, for instance on prisoner voting. The UK would also be setting a negative example so that the protection of human rights within Europe as a whole would suffer. Withdrawal from the European Convention on Human Rights is technically possible with six months’ notice, however it would lead to wider consequences for the UK’s other international commitments. Long-term membership of the Council of Europe may become impossible. A withdrawal from the European Convention on Human Rights may be incompatible with the UK’s commitments as a member of the European Union. Withdrawal from the European Convention on Human Rights could also result in a substantial reduction of human rights protection for minority and vulnerable groups in the UK.

The return of Syrians has been on the agenda of EU Member States for a while. In October 2024, they collectively expressed the need to ensure safe, voluntary, and dignified return of Syrians while seeking new ways to prevent and counter irregular migration. Several Member States urged the EU to revise its current strategy on Syria, adopted in 2017. In sum, Member States called for the EU to implement a more stringent policy. However, the return of Syrian refugees is a complex issue. While EU Member States are increasingly seeking to facilitate their returns, the situation on the ground remains unstable and unsafe. International law sets out clear rules and safeguards for return processes. EU law also establishes common standards that Member States must comply with regarding returns. This study provides a brief overview of the general legal framework that EU Member States must consider when determining the return of Syrians to their country of origin. Although political discourse centres on return, it is essential to distinguish political rhetoric from legal reality. Member States are bound by the international refugee protection regime, which consists of the Convention Relating to the Status of Refugees (hereinafter the 1951 Refugee Convention) and its 1967 Protocol, UNHCR practices, and human rights instruments, primarily the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR), all of which complement the protection. At the EU level, Member States are bound by the Return Directive, the Charter of Fundamental Rights of the European Union and the fundamental principles of EU law as set forth in the Treaty on European Union, as well as the case law of the Court of Justice of the European Union (CJEU). In this regard, the study elucidates the current situation in Syria by analysing the observations and reports from governmental and credible non-governmental organisations. It further evaluates the circumstances on the ground within the legal framework, aiming to clarify the legal obligations and conditions that must be met for returns to occur in compliance with international and EU law.

In This Issue

EU law itself has stimulated the introduction of several kinds of administrative sanctions which Member States themselves did not have. Earlier, the European Court of Human Rights (ECtHR or Human Rights Court) has made it clear that states are allowed to use the instrument of administrative sanctions, as long as they observe the fundamental standards of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), when the sanction is of a punitive nature.Over time, both the European legal orders have adopted similar standards when it comes to imposing punitive sanctions, and have drawn nearer to each other. The EU has explicitly adopted the standards of the ECHR in the Charter of Fundamental Rights, after a period of time in which the Court of Justice developed its own EC standards on the basis of the principles that are common to the laws of the Member States. In this paper the European framework for administrative sanctioning is analyzed from the perspective of Union law and its procedural guarantees.The difference in the Court’s approach of reparatory and punitive sanctions with regard to procedural guarantees is gradual and in line with the ECtHR’s case law that a less strict procedure is allowed, if the sanction concerns a criminal charge ‘light’. The Charter contains specific guarantees in ‘criminal proceedings’. It is argued that, as a consequence, the CJ needs to clear up to which sanctions these guarantees apply.(revised and updated version)

European Union (EU) law is increasingly influencing the substantive criminal law of the member states. In this area of law – in which criminal liability and subsequent punishment are at stake – protection of fundamental rights is indispensable, as a result of which means the Charter has great potential relevance. This article examines the protection of fundamental rights by Union law in the field of substantive criminal law since the Charter has become binding and compares it to the protection offered by the European Court of Human Rights (ECtHR). The article focuses on two fundamental rights that rule substantive criminal law: the principle of guilt and the ne bis in idem principle. It holds that EU law still does not provide a full foundation to both principles of criminal substantive law. Given the particular nature of EU law, the practice of the institutions in substantive criminal law, and the current case law of the European Court of Justice and the ECtHR, we argue that the current level of protection in these parts of the criminal law is insufficiently convincing. Progress needs to be made in the recognition and appreciation of the principle of guilt, while the ne bis in idem principle might be overextended.

This article is devoted to the study of the concept of access to court in European case law. It examines the case law of the European Court of Human Rights (ECtHR) and EU law to define the essence of access to court, which stems from the concept of justice as an integral part of the right to a fair trial and the rule of law. The article dedines that ECtHR interprets the right of access to a court within the context of the «right to a court» as defined in Article 6 (1) of the Convention. Access to a court embodies not only the ability to initiate proceedings but also the right to have them resolved and to obtain justice overall. According to the ECtHR’s case law, the right of access to a court includes a substantive dimension, encompassing civil rights and obligations as well as criminal charges, and a procedural dimension, addressing potential procedural barriers to securing judicial protection of this right. The article establishes that the rights of access to court and the right to an effective remedy, as provided by the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the EU, have both common and distinctive features, with national legal systems playing a pivotal role in their enforcement. The distinct roles of the two European supranational judicial systems do not preclude their complementarity or occasional competition, as evidenced by the interplay between the provisions of the Convention and the Charter, as well as the case law developed under each framework. Moreover, their respective scopes of jurisdiction must align with the competence of national judicial authorities. Concluded, that the key difference in the application of Article 47 of the EU Charter compared to Article 6 of the ECHR lies in its broader coverage, encompassing all rights and freedoms recognized under EU law, rather than being limited solely to criminal or civil matters. Key words: access to court, the right to an effective remedy, the right to a fair trial, the right to a court, justice.

The Charter codifies and reaffirms the rights and principles recognised in the EU law. These rights and principles result from the constitutional traditions common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the Court of Justice of the European Union and of the European Court of Human Rights. The Charter was meant to strengthen the protection of fundamental rights by making those rights more visible. These aims determine the scope of applicability of the Charter and the rules of its interpretation and application in the law of the EU and the Member States. This chapter explores the restrictions of the applicability of the Charter (including its applicability towards the Member States and the possibility to apply the Charter in the horizontal relations). It will analyse the different modes, ways and constraints of the Charter's application and interpretation by the courts of the Member States. It also examines whether the Charter, despite its limited scope of application provided by art 51, can provide wider hints to national courts in the applying the fundamental rights. This contribution analyses also what are the consequences of the distinction between rights and principles as introduced in the Charter for the application and interpretation of the Charter. To answer these questions, the chapter will analyse the origin of the fundamental right protection in the EU law and the objectives, provisions and functioning of the Charter seen in the light of the principles of the EU law and the case-law of the Court of Justice.

The article analyses the process of applying the European Court of Human Rights case law and the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 in criminal proceedings in Ukraine. The basic principles arising from the jurisprudence of the European Court of Human Rights and their impact on national legislation and court practice are investigated. Particular attention is paid to the issues of observance of the right to a fair trial, presumption of innocence, prohibition of torture and effective investigation of human rights violations. The key cases of the European Court of Human Rights against Ukraine, which have determined the directions of reforms in the field of criminal justice, are analysed. The problems of implementation of the European Court of Human Rights case law in the criminal justice system of Ukraine, in particular, the formal approach to the use of case law, the lack of an effective mechanism for the execution of judgments and insufficient training of law enforcement and law enforcement agencies are investigated. The following prospects for improving the application of the European Court of Human Rights case law in criminal proceedings in Ukraine are identified: 1) the amendments to the Criminal Procedure Code of Ukraine to comply with European standards, in particular, with regard to the right to a fair trial, the presumption of innocence, protection against torture and unlawful detention, ill-treatment, etc.; 2) the development of recommendations to improve the training of judges, prosecutors, lawyers and pre-trial investigation bodies; 3) the strengthening of control over the observance of human rights, the reasonableness of the time limits during the pre-trial investigation, and fair and lawful trial; The following prospects for improving the application of the European Court of Human Rights case law in criminal proceedings in Ukraine are identified: 4) the improvement of procedures for verification, evaluation and examination of evidence in order to protect the defence from unlawful actions of the prosecution; 5) the introduction of mechanisms for the effective implementation of judgments of the European Court of Human Rights in individual cases; 6) the provision of adequate funding and resources to law enforcement and law enforcement agencies.

This Article analyzes the legal regulation of abortion within the context of Europe’s multilevel system for the protection of fundamental rights. The Article examines the constitutional dynamics and challenges that emerge in the field of abortion law from the overlap between national and supranational norms in Europe, comparing the European multilevel architecture with the United States (U.S.) federal system. To this end, the Article summarizes the main trends in the regulation of abortion in the various European Union (“EU”) countries, assesses the growing impact of the EU and the European Convention on Human Rights in the field of abortion law, and emphasizes how supranational law generates new pressures and creates several inconsistencies within the domestic legal systems of those states which restrict abortion rights. It then explores how analogous dynamics have historically been at play in the U.S. federal system. Finally, the Article evaluates — in light of the U.S. experience — the potential consequences upon the European abortion regime of the most recent developments in the European Court of Human Rights case law and the entry into force of the EU Charter of Fundamental Rights via the Lisbon reform Treaty.