Court Of Human Rights Case Law Research Articles

Redress for the non-pecuniary damage in case of exceedingly long non-execution of the final judgement

The article is focused on studying the topical issue of determining the possibility of redress for the non-pecuniary damage in case of exceedingly long non-execution of the final judgement. The author of the article has stated that the right to judicial protection includes both holding a judgement and its timely execution. Timely and full execution of a judgement guarantees the realization of subjective rights recognized by the judgement and fulfillment of legal obligations confirmed by it. It has been proved that execution of judgements within civil legal proceeding should be carried out taking into account the European Convention on Human Rights and the European Court of Human Rights case-law. In particular, the ECtHR insists on the great importance of such a property of a judgement that has become final (res judicata), as the possibility and factual enforceability of its actual execution by the state. It has been noted in the paper that the adoption of a number of new legislative acts, which introduced a lot of amendments in the field of executive proceedings, foreground researches focused on levying of execution of judgements from a new angle, in particular, the topical issue on determining the possibility of redress for the non-pecuniary damage in case of exceedingly long non-execution of the final judgement. The requirements of reasonableness and fairness should be considered while determining the amount of compensation. Non-pecuniary damage is compensated regardless of the pecuniary damage that is subject to compensation and is not related to the amount of this compensation. Non- pecuniary damage is compensated on a once-only basis, unless otherwise stipulated by the contract or law. As a general rule, the infliction of the non- pecuniary damage to another person is the basis for the obligation to redress for the non- pecuniary damage. The obligation to redress for the non-pecuniary damage caused to a person by illegal decisions, action or act of omission of a state authority while exercising its powers arises under the following conditions: existence of non- pecuniary damage; wrongfulness of the person’s behavior who caused non-pecuniary damage; existence of causal relation between wrongfulness of the person’s behavior who caused non-pecuniary damage and its result - non-pecuniary damage. On the basis of the conducted research, the author has concluded that the possibility of redress for the non-pecuniary damage in case of exceedingly long non-execution of the final judgement supports the integrity of the legal system by ensuring the execution of judgements and maintaining trust. When judgements are executed with consequences, the authority of the judicial system is undermined and the effectiveness of the legal system is put at stake. The integrity of the legal system is preserved and public confidence in the judicial system is strengthened by upholding the authority of a judgement through the possibility of compensation. It is impossible to bear with non-execution, because it creates a dangerous precedent that undermines the foundation of an honest and fair legal system.

European Court of Human Rights Caselaw on the Right of the Same-Sex Couples to Marry

ECtHR has established case law by which national authorities are obliged to ‎legally recognize and regulate same-sex partnerships. However, they are not‎ obliged to give the right to marry to same-sex partners taking into account‎ dominant moral beliefs in society. This paper aims to test such an approach‎ from the perspective of four theories of justice. The aim is to see if the consistent ‎application of precepts and principles of these theories of justice to this ‎case law makes such an approach of the ECtHR just from the viewpoint of any‎ of these theories of justice. This way what may seem as intuitively just or unjust‎ is tested against concrete and particular standards of justice.‎

Impact of rape-myths on judiciary proceedings: A lack of acknowledgement in the European Court of Human Rights case-law

Rape myths can be defined as prejudicial, stereotyped or false beliefs about rape, rape victims, and rapists, and they include common opinions whereby women mean “yes” when they say “no”; women provoke rape; if a woman does not want to be raped, she will just fight back at any cost. These pervasive social attitudes can have a detrimental effect on victims of sexual violence, especially when employed by authorities during official proceedings. As such, this article aims at analyzing to what extent rape myths affect the perception of victims of sexual violence during the official proceedings on the example of the case-law of the European Court of Human Rights (ECHR). Thus the first part explains the notion of rape myths, while the second part provides an analysis of the jurisprudence of the ECHR. Lastly, the final part suggests new approach to cases concerning sexual violence.

Biomedicine issues in the European Court of Human Rights Case-Law: Boljević v. Serbia

The article considers the recent case-law of the European Court of Human Rights in cases related to the use of the achievements of biomedicine in the light of the implementation of human rights and freedoms provided for by the European Convention on Human Rights and its additional protocols. In fact, the author pays special attention to the case of Boljević v. Serbia , in which the applicant, a Serbian citizen, alleged that his right to respect for private and family life had been violated as a result of the refusal of the Serbian national courts to reopen paternity proceedings, in which the applicant intended to prove, through DNA testing, that Mr. A was his biological father. It has to be mentioned that in this case in the 1970s the Serbian national courts issued final decision according to which Mr. A was not recognized as the applicant's biological father, and the applicant indicated that at that time it was impossible to carry out DNA test and he did not know about the existence of such decision (during the proceedings, the applicant was represented by a lawyer appointed by local authorities, since he was a minor), and that now there is such a possibility. In this connection, the applicant argued that the denial to satisfy his claims on procedural basis by the domestic courts violated his right to family and private life. The ECtHR ruled that Art. 8 of the Convention has been violated. In that case, the issues of compliance with a balance of private and public interests were dealt with (the interests of the applicant to establish his biological father identity and the interests of the state in maintaining legal certainty).

Legal Grounds for Restrictions of Human Rights in the European Court of Human Rights Case-Law

This article is devoted to the study of the legal grounds for restrictions of human rights in the ECtHR’s case-law. The study stipulates that the concept of generations of human rights, based on the historical progress of ensuring human rights and fundamental freedoms, is a set of rights that require the proper protection and will constantly shift towards large-scale expansion, taking into account changes in society and the achievements of humanity. The study notes that even though at the end of the 20th century, the idea of human rights’ division into three generations (civil and political; social, economic and cultural; collective rights) was proposed in the science of international law, nowadays, it is difficult to clearly attribute certain rights to these categories. The research states that the division of rights into generations is convenient, but it should be noted that the concept of three generations of human rights is based on the historical progress of ensuring human rights and fundamental freedoms. Therefore, the set of rights that require protection will constantly change. The article highlights a few restrictions on human rights and freedoms, mainly concerning the first and second generations. The study determines that the specifics of restrictions of fundamental human rights are directly related to the difference between absolute and relative rights. The ECtHR explains that the objectives of human rights restrictions are substantially expanded and introduced in order to: maintain the state and public safety or economic well-being of the country; prevent riots or crimes; protect health or morals; ensure the rights and freedoms of others; protect the national security, territorial integrity; prevent of disclosure of confidential information; maintain the authority and impartiality of judicial authorities.

Obligations of the Government Concerning Sex Offences According to the European Court of Human Rights Case-law

Due to the special importance of the European Convention on Human Rights, the article discusses the judgments of the European Court of Human Rights regarding sexual offences, which establish violations of various rights protected under the Convention. In addition, it is mentioned in the article whether the practice of the national courts complies with the standards of the European Convention on Human Rights. The approaches of the ECtHR on this issue is very interesting, in particular, on the definition of the crime of rape, nonconsensual sexual intercourse and importance of protection of sexual autonomy. Furthermore, the judgments of the ECtHR related to the sexual offences are discussed, in particular violation of the right to respect for private life. As most of the violations in this category of cases are related to the Article 3 of the European Convention on Human Rights, therefore the case-law of the ECtHR in this regard, especially in terms of the definition of torture and the ineffective investigation is the important component of the present publication. The aim of this article is to demonstrate the main challenges existing in the Georgian criminal law and practice regarding the implementation of the European Convention on Human rights on national level.

Effective Remedy for Excessive Length of Proceedings: A Macedonian Perspective

In the spirit of Latin maxim Ubi jus, ibi remedium, it is claimed that the right to an effective remedy permeates the entire European Convention human rights system, giving it a real and effective dimension. An argument is also made for a right to a trial within a reasonable time, meaning that an excessive length of proceedings can be remedied as well. As the principle of subsidiarity lies at the heart of the jurisdiction of the European Court of Human Rights, the establishment of an effective remedy before the national bodies/authorities is required. In the light of these general considerations, while celebrating the 70th anniversary of the European Convention of Human Rights, the underlying idea of this article is to highlight the fundamental standards of assessing the effectiveness of the remedies with regard to the length of proceedings established in European Court of Human Rights case-law. The focus is placed on the development, current status and functioning of the remedy for excessive length of proceedings in North Macedonia as a Member State of the Council of Europe. The article attempts to answer the question of whether the legal remedy for excessive length of proceedings that exists in Northern Macedonia can be considered effective within the meaning of the European Convention of Human Rights and the European Court of Human Rights case-law. Keywords: a right to a trial within a reasonable time; excessive length of proceedings; undue delays; an effective remedy; an effective length-of-proceedings remedy; ECtHR case-law; jurisprudence of the Supreme Court of North Macedonia.

Ensuring the exercise of the right to access to justice as a mandatory attribute of a constitutional state

The article analyzes both the positive and negative obligations of the state regarding the right to access to justice. Based on the principle of separation of powers into legislative, executive and judicial, emphasis on the need for real justice in constitutional state, as well as ensuring its accessibility, is made. Some aspects of the European Court of Human Rights case-law in the field of access to justice are considered. It is also hypothesized that the ECtHR case-law ensures the dynamic development of the European Convention on Human Rights provisions. In particular, the article analyses several ECtHR decisions which explicitly state that the Convention is intended to guarantee not theoretical and illusory, but practical and effective rights («Matthews v. The United Kingdom», «Bellet v. France and others»). The decision of the Constitutional Court of Ukraine is studied, which, inter alia, reveals the special role of constitutional and administrative proceedings in ensuring the rule of law. The obligation of the state to ensure equal access to justice is stated, since the purpose of justice is to protect violated, disputed rights, freedoms that belong directly to the person applying to the court for their protection. Therefore, the exercise of the right guaranteed by part two of Article 55 of the Constitution of Ukraine to appeal court decisions, actions or omissions of subjects of power must be ensured in accordance with the stated purpose of justice. At the same time, this right connects to the opportunity of every person to justify before the court conviction in the illegality of interference by the subjects of power in rights and freedoms concerned. The article analyses the decision of the Grand Chamber of the Supreme Court, which reveals the legal nature of ensuring access to justice in criminal, or administrative offenses. It is stated that the attributes of the rule of law are not limited to the justice and access to it, and their autonomous existence is impossible in a society where other democratic institutions do not work. Keywords: the rule of law, justice, access to justice, constitutional state, human rights, legal aid.

The problem of gender-based violence in the Inter-American Court of Human Rights Case-Law

The phenomenon of gender-based violence is far from novel, it has been actively debated in academic and human rights circles for several decades already. However, gender-based violence has only recently become a focus of attention in international inter-governmental organizations and international courts. In the field of international humanitarian law, the International Criminal Tribunals for the former Yugoslavia and Rwanda declared sexualized violence as part of war crimes, crimes against humanity and genocide in the early 2000s, and approximately at the same time international human rights bodies started to examine this problem as well. The UN CEDAW Committee began its first deliberations in accordance with Optional Protocol to the CEDAW Convention (1999), and the Inter-American Commission and Court on Human Rights joined in as an active participant in this global struggle for women’s rights, making an impact on domestic law-making and law enforcement, and setting an important example for human rights groups and political actors. By looking at some of the most important decisions of the IACtHR in the field of combatting gender-based violence, we seek to identify major problem areas and the impact these decisions had in the region.

Papel del artículo 8 CEDH en la construcción del margen de apreciación nacional y la doctrina de las obligaciones positivas del Estado

El artículo 8 del Convenio Europeo de Derechos Humanos –que protege los derechos al respeto la vida privada y familiar, el domicilio y la correspondencia– se ha configurado en estos setenta años de Convenio como uno de los escenarios habituales del desarrollo del margen de apreciación nacional y la doctrina de las obligaciones positivas del Estado. Esto parece justificarse en el contenido y estructura de este artículo y en las restricciones y limitaciones al ejercicio de estos derechos establecidas por su párrafo segundo.
 En este marco, el objetivo de este artículo es analizar cuál ha sido el papel del artículo 8 CEDH en el desarrollo de estos estándares interpretativos y cómo ha influido en la jurisprudencia del Tribunal Europeo de Derechos Humanos. Article 8 of the European Convention on Human Rights –which protects the right to respect for private and family life, home and correspondence– has been configured as a traditional place for the development of the margin of appreciation and the doctrine of State’s positive obligations. The scope and structure of this article and its limitation clause in the second paragraph seem to justify these developments.
 In this context, the objective of this article is to analyse the role of Article 8 ECHR in the development of these interpretative standards and its influence in the European Court of Human Rights case-law.

Words that Hurt (1): Normative and Institutional Considerations in the Regulation of Hate Speech in Europe

Europe is experiencing at present intense dilemmas in regulating hate speech and online harassment. Free speech exercise can be offensive and even contribute to a climate of prejudice and discrimination against minorities. Often, the media exacerbate the tendency by reporting negatively about minorities. The first working paper on this topic engages with the normative dimensions of the balance between the need to control and limit incitement to violence in reconciliation with the fundamental right to freedom of expression. Three distinct aspects of hate speech are covered: the first relates to the role of freedom of expression as a tool of inclusiveness. With the limits of liberal tolerance being unclear, just like the definition of hate speech itself, legal actors and systems are torn between criminalising the speaker’s motive alone or in conjunction with the effects of the speech. A survey of recent related European Court of Human Rights case-law demonstrates these ambiguities. The second aspect covered looks at the challenges of the regulation of the freedom of expression in the digital age, with emphasis of the online dimensions of the phenomenon from a legal perspective. The final aspect of the paper proposes an actor-based analysis of hate speech, as it emerges from the current regulatory frameworks applied. This section deals not only with the role of the State but also with that of equality bodies, political parties and private businesses in providing more efficient networks of protection of minorities from such violent expressions of hatred.

Формалізація та алгоритмізація як шляхи забезпечення правильного застосування практики Європейського суду з прав людини

Referring to the Supreme Court of Ukraine Grand Chamber’s jurisprudence in administrative cases the author suggests that domestic courts of Ukraine systematically apply the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Court of Human Rights case-law in manner which is non-uniform, unmotivated, irrelevant and erroneous in essence, which is incompatible with the rule of law dictating clear, foreseeable, and adequately accessible national law to enable individuals to act in accordance with the law. In particular, the author exemplifies the foregoing with Supreme Court of Ukraine Grand Chamber’s judgments, in which European Court of Human Rights case-law was applied: in cases concerning solely the two public administration bodies; in cases with no legal connection with any conventional human right and fundamental freedom; without any meaningful attempt to articulate conclusions or guidelines relating to specific way to use provisions of Convention for the Protection of Human Rights and Fundamental Freedoms and the European Court of Human Rights case-law in context of a particular case or in abstract and as well manner, in which that is to be used by domestic courts in further cases. With a view to prevent such occurrences the author maintains that there is a pressing need to formalize and algorithmize ways of application of these sources of law. There are some best practices to serve as a starting point for these rules such as the approach of Ukrainian courts to initially consider the case bearing in mind national statutes and other legislation and, subsequently, assess whether the way to solve the case determined by national law aligns with Convention for the Protection of Human Rights and Fundamental Freedoms and the European Court of Human Rights case-law.

El Tribunal Europeo de Derechos Humanos y el 40 aniversario de la Constitución española

En este trabajo se aborda la influencia que ha tenido la jurisprudencia del Tribunal Europeo de Derechos Humanos en la interpretación, por parte del Tribunal Constitucional, de los derechos fundamentales formulados en la Constitución Española. Cuando se cumplen casi simultáneamente 40 años de la entrada de España en el Consejo de Europa y de la aprobación de la Constitución Española (1977 y 1978, respectivamente), se analiza la positiva influencia de la jurisprudencia del Tribunal Europeo en la doctrina del Tribunal Constitucional. Sin pretender un análisis exhaustivo de la jurisprudencia, el trabajo analiza tres cuestiones de actualidad en la interacción entre el sistema del Tribunal Europeo y el sistema constitucional español. En primer lugar, la configuración del recurso de amparo a partir de la reforma producida por la Ley Orgánica 6/2007, de 24 de mayo, de la Ley Orgánica del Tribunal Constitucional y el Tribunal Europeo de Derechos Humanos, esto es, el requisito de la especial relevancia constitucional exigido para la admisión del recurso de amparo y la no existencia de tal requisito en el sistema del Convenio de Roma. En segundo lugar, se aborda un tema polémico y todavía no resuelto por la doctrina constitucional, como es la configuración de nuevos derechos a partir de la jurisprudencia del Tribunal Europeo de Derechos Humanos. Finalmente, se analiza la reciente reforma introducida en el ordenamiento jurídico español para la ejecución de las sentencias del Tribunal Europeo de Derechos Humanos en el ordenamiento interno español que complementa el sistema de control de ejecución de sentencias por el Consejo de Europa.

LA EXIGIBILIDAD DE LOS DERECHOS ECONÓMICOS Y SOCIALES EN EL ÁMBITO INTERAMERICANO Y SU REALIDAD EN URUGUAY

The paper studies the issue of enforceability of economic and social rights at the Inter-American level, in order to draw a contrast with the reality of Uruguay. The decisions on cases Suarez Peralta (2013) and Gonzales Lluy (2015), both with respect to Ecuador, are analyzed. Moreover, the paper observes how doubts and conflicts exposed and/or derived from the Inter-American Court of Human Rights case-law are also presented in the legal field of Uruguay. For this purposes, the author considers some recent cases with practical relevance in Uruguay, which constitute examples of the dichotomy associated with this matter. Economic and social rights are also studied in relation to judicial protection and the guarantee of reasonable judicial timeframe, determining an important interconnection with particular effects in this subject.

The “living together” argument in the European Court of Human Rights case-law

This article analyses the three cases where the argument of “living together” was engaged by the ECtHR and accepted as a legal justification for the prohibition of the full-face veils (burqa and niqab): SAS v. France (2014), Belcacemi and Oussar v. Belgium (2017), and Dakir v. Belgium (2017). It analyses the proposed concept of “living together” itself, explaining its content and its development in the French and Belgian contexts. The paper argues that there is a lack of a robust legal analysis sufficient to legitimize this new argument. Finally, it makes the case for more fact-oriented decisions and the need for the Court to engage in evaluating all the knowledge it obtains, including empirical material brought by the third parties’ interventions. This could be beneficial for two reasons: facilitating the application of the proportionality test and protecting the Court itself from dangerous challenges to its authority.

Normativa antimafia e diritto europeo dei diritti umani: lo strano caso del dottor Bruno Contrada

After having recalled the ECtHR’s (over-)sensitivity to security and material justice, and after having described its method of interpretation, the paper focuses on the scrutiny of the ECtHR over the national rules regulating the detention, and emphasizes the Court’s different approach to ordinary detainees (predominance of the human dignity and full enforcement of the prohibition ex Art. 3 ECHR) and “dangerous prisoners” (predominance of the social defence policy and fuzzy enforcement of the prohibition ex Art. 3 ECHR); moreover, the text describes the tendency of the European Court to adopt a different concept of “foreseeable conviction” in case of lack/presence of victims. The strange case of B. Contrada is fully inconsistent with this “double-standards” scenario. Indeed, he had been convicted of “mafia”, and therefore, he was a “dangerous prisoner” who contributed to a massive victimization; however, he has won at Strasbourg twice, because its rights ex artt. 3, 7 ECHR have been fully recognized and protected by the ECtHR. All of this demonstrates that the European Court of Human Rights case-law is too unpredictable and unequal to be (always) taken seriously.

State Neutrality and Legal Status of Religious Groups in the European Court of Human Rights Case-law

From the premise of religious freedom, the European Court of Human Rights (ECtHR) case-law has established a State duty of neutrality concerning religious matters. However, the concept of neutrality is not univocal, and the ECtHR uses various different forms of it. States have a duty to allow religious groups access to legal personality, but they are not obliged to grant every religious group the same kind of legal personality. A double or multi-level system of recognition is legitimate under the European Convention on Human Rights (echr) if some conditions are fulfilled. The ECtHR has also affirmed that the most radical kind of double or multi-level system, that of an established church, is not contrary to the Convention. In a recent case, however, the ECtHR seems to have adopted a stricter approach to the legitimacy of privileges granted to some church/churches above other ones.

The Finnish Supreme Court recognizes the impact of European Court of Human Rights case-law on national strike law

The Finnish Supreme Court recognizes the impact of European Court of Human Rights case-law on national strike law