ECtHR Judgments Research Articles

Expert Opinion on the Reform of the Common European Asylum System for the German Federal Ministry of the Interior: Minimum Requirements Under EU Primary Law and International Refugee Law for Rules in Secondary Legislation on the Rejection of Applications for Asylum as Inadmissible with a View to Protection and Housing Options in Third Countries (Transit and Other Countries) or in

Expert Opinion on the Reform of the Common European Asylum System for the German Federal Ministry of the Interior: Minimum Requirements Under EU Primary Law and International Refugee Law for Rules in Secondary Legislation on the Rejection of Applications for Asylum as Inadmissible with a View to Protection and Housing Options in Third Countries (Transit and Other Countries) or in

EUROPEAN COURT OF HUMAN RIGHTS JUDGEMENT AS A BASIS FOR REVIEW OF THE NATIONAL COURTS' JUDGEMENT

УДК 347.9 The purpose of the article – a critical analysis of the position of the Constitutional Court of the Russian Federation, the justification, through the analysis of the ECtHR practice and scientific work on execution of the ECtHR judgments, about the coordination of positions of national courts and the supranational body. The methodological basis for the study: general scientific methods (analysis, synthesis, comparison); private and academic (interpretation, comparative legal, formal-legal). Problems and basic scientific results: The issue of implementation of the Human Rights Court decisions at the national level oc-curs when the compensation is not enough to eliminate the revealed violations. Russian legislator opted for the situation of Human Rights by the European Court finding a violation of the provisions of the Protection of Human Rights and Fundamental Freedoms in the consideration by the court of a particular case, in connection with the decision by which the applicant applied to the ECtHR mechanism for review of the decision on the new circumstances. Supreme Court puts forward three conditions for the implementation of the revi-sion of the judicial act on a national level, which should be available at the same time: 1) the continuous nature of the adverse effects; 2) the existence of violations of the Convention or gross procedural violations; 3) a causal link between the breach and the consequences. The author point out that the regulation of possible conflicts between the Convention and national legislation is based on cooperation (not confrontation) States and the European Court of Human Rights. Such practice of cooperation based on the principles of subsidiarity (addition to national rights protection system); evolutionary interpretation of the Convention (which implies flexibility, and accounting for changes in public relations); Judges dialogue and to develop advisory opinions. Consequently, the task of the Constitutional Court can not be default search options, on the contrary, its task – to determine exactly how, taking into account the differences in the legislation, the decision will be enforced. Failure, as well as the improper execution of judgments of the ECtHR may involve the establishment of a new violation of the provisions of the Convention and sanctions against violators.

Regional Challenges in Implementation of European Convention on Human Rights: Lithuanian Perspective

The European region encompasses countries with a different historical past, consequently, entailing a variety of political, legal, and cultural traditions. Despite the general commitment to the same principles, human rights and fundamental freedoms under the European Convention on Human Rights, the actual situation is marked by disputes and different approaches towards the assumed obligations occurring on both the political and constitutional level. The article addresses two main types of challenges concerning the implementation of the Convention on the level covering both the inter partes and erga omnes effects of the judgments adopted in Strasbourg. The first is the rise of political populism that is usually directed against the European standards of human rights. The second is the insufficient observance of the principle of subsidiarity by the European Court of Human Rights in some cases sensitive to the core elements of national identity of certain states, in particular those from the Central Europe. The lack of understanding of particularities of those states who share the legacy of double totalitarianism can reduce the legitimacy of the ECtHR judgments within those societies and, by the same token, strengthen the anti-European populist ideas. The article deals with the issue how constitutional courts can respond to those challenges and contribute to the implementation of the ECtHR judgments. It provides the example of the Lithuanian Constitutional Court in deciding the landmark cases relevant to the Convention law. From that example one can see that openness and determination to follow the European standards, even though the Constitution provides for its superiority over the Convention law, are the best means to harmonise two legal orders from the national perspective. The article also argues that the application of the European consensus criterion by the ECtHR should be based on a clear methodology and the subsidiary nature of the Convention mechanism should be retained. The proper respect to national, in particular constitutional, jurisdiction without compromising the Convention values is also required in increasing the legitimacy and implementation of the ECtHR judgments.

CONSTITUTIONAL FOUNDATIONS OF THE EXECUTION OF THE ECtHR JUDGMENTS IN THE LEGAL SYSTEM OF THE RUSSIAN FEDERATION

The article studies binding legal force of the ECtHR decisions in relation to the arising from the Constitution of the Russian Federation and the Convention for the Protection of Human Rights and Fundamental Freedoms requirement demanding execution of measures of individual and general character. The authors analyze the legal positions of the Constitutional Court of the Russian Federation regarding the binding nature of ECtHR judgments. The authors note that, in assessing the nature of the decisions of this Court, their influence on the Russian legal system, it is important to take into account the fact that the legal effect of its decisions is not limited only to decrees adopted in the cases on the appeals against the Russian Federation. The article emphasizes, the Constitutional Court of the Russian Federation has never denied the role and importance of the ECtHR decisions in the Russian legal system, their commitment and the need of execution addressed to the Russian authorities of the individual measures, confidently and consistently perceiving the rights and freedoms of a person in the essential constitutional-Convention unity. The main difficulties of implementation or, as they say, domestication (domestication) of the Convention's provisions for Russia are connected not with the Convention itself and its interpretation in the decisions of the ECtHR. These difficulties are not sustainable and ambitious nature. Based on the anal-ysis of legal positions of the Constitutional Court of the Russian Federation and the ECtHR, the authors come to the conclusion that the Russian Federation shall make all possible efforts for the execution of final judgments of the Strasbourg Court which, however, does notrelieve Russian authorities from the unconditional compliance with the Constitution and which, in its turn, as a consequence, may hinder the execution of such judgments in case of their contradiction to the Constitution of Russia.

MTE v Hungary: A new ECtHR judgment on intermediary liability and freedom of expression

MTE v Hungary: A new ECtHR judgment on intermediary liability and freedom of expression

LGBT rights and the way forward: the evolution of the case law of the ECtHR in relation to transgender individuals’ identity

The authors analyze and discuss two of the most recent ECtHR judgments on transgenders’ rights under the European Convention: Hamalainen v. Finland (2014) and Y.Y. v. Turkey (2015).

Dismissal of the President of the Hungarian Supreme Court: ECtHR Judgment Baka v. Hungary

The right-wing Hungarian Government has not fully respected the judicial independence since the landslide victory of 2010 which has confirmed many worries and critiques. As it was reported in this journal earlier, many judges were forced to retire by a constitutional amendment in 2012.The European Court of Justice (ECJ) found this to be contrary to EU law especially to the antidiscrimination directive. The new Fundamental Law of Hungary also renamed the former Supreme Court to Kúria and this enabled the dismissal of the President of the Supreme Court who lodged an individual complaint before the ECtHR. The ECtHR found a violation of Article 10 (freedom of expression) and Article 6 (the right to access to court) confirming the alleged illegality. Moreover, the case is also of interest to demonstrate the very complex interplay between national and international legal remedies.

The ECtHR in the role of a European Constitutional Court? Reflections on the ECtHR judgment Vallianatos and others versus Greece (7 November 2013)

The paper that follows comments on the Vallianatos versus Greece (7 November 2013) judgment of ECtHR. As it is illustrated, in this extremely interesting judgment the Strasbourg Court has acknowledged the positive obligation of the Council of Europe state members in recognising civil partnerships as a right of both heterosexual and homosexual couples. In this judgment, the Court referred to its previous case law reiterating that the notion of family life is subject to social changes that oblige the Council of Europe state members to reinterpret its traditional meaning by expanding it also to alternative forms of family life while reserving for the states the competence to regulate the right to marriage. In this framework, the present comment aims in analysing the ECtHR stance on the homosexual couples rights to family life, marriage and civil partnerships while examining the Court of Strasburg role in reviewing national legislation as an informal European 'Constitutional Court'.

Are Austrian Courts Obliged to Consider the Jurisprudence of the European Court of Human Rights when Interpreting the ECHR?

Abstract According to the prevailing opinion, ECtHR judgments do not bind the members of the Council of Europe beyond the individual case. The aim of this paper is to present arguments against this prevailing opinion and make a case for a legally binding effect of ECtHR judgments beyond the individual case within the Austrian legal order. We demon­strate that such an obligation follows from the system and telos of the ECHR and the con­stitutional principles of legal certainty and equality before the law and not only arises when a systematic problem in Austria is concerned, but also where well-established case-law of the Court exists. Moreover, we approach the question from an EU law perspective and ar­gue in favour of a legally binding, albeit limited, effect of the Court’s judgments by virtue of EU law.

Domestic Implementation of European Court of Human Rights Judgments: Legal Infrastructure and Government Effectiveness Matter: A Reply to Dia Anagnostou and Alina Mungiu-Pippidi

This article responds to the valuable contribution by Dia Anagnostou and Alina Mungiu-Pippidi in which they analyse how nine countries implemented European Court of Human Rights judgments that found violations of Articles 8�11 of the European Convention on Human Rights. Their conclusion that capacity plays an important role in the implementation of ECtHR judgments is certainly correct. In this short response, I highlight various aspects of the authors' analysis where they make problematic choices with regard to data and statistical methods. First, I describe and use a more comprehensive dataset that allows us to reach more generalizable conclusions. Secondly, I show how survival analysis is a more appropriate framework than logit or linear regression for analysing these data. Thirdly, I argue that the difficulty of the implementation task needs to be accounted for in any analysis of cross-country variation in implementation. My re-analysis shows that low capacity countries attract judgments that are more difficult to implement. The analysis also uncovers a subtle relationship between time, institutional capacity, and checks and balances. High capacity helps willing politicians to implement judgments quickly. Yet, among judgments that have been pending longer, countries with higher capacity are no quicker to implement than lower capacity countries. By contrast, checks and balances initially slow down implementation but help to eventually ensure begrudging implementation.

The responsibility of State-Parties to the ECHR for the conduct of foreign agents – building on the ‘Soering doctrine’ or a general regime of international state responsibility? El-Masri v. “the former Yugoslav Republic of Macedonia”, app. no. 39630/09, ECtHR judgment of 13.12.2012

The responsibility of State-Parties to the ECHR for the conduct of foreign agents – building on the ‘Soering doctrine’ or a general regime of international state responsibility? El-Masri v. “the former Yugoslav Republic of Macedonia”, app. no. 39630/09, ECtHR judgment of 13.12.2012

MOBILISATION, LITIGATION AND DEMOCRATIC GOVERNANCE

This analysis examines the interaction between advocacy groups and the European Court of Human Rights in the mobilisation and development of rights. The article is also concerned with the effects of this litigation on democratic governance. The study includes an original dataset of ECtHR judgments from 1960 to 2006 and examines the frequency and effects of societal group participation. The findings illustrate that rather than undermining democracy, judicialisation processes can at times enhance participation in rights development and protection

Margen de apreciación estatal, libertad religiosa y crucifijos (o las consecuencias de un deficiente diálogo entre jurisdicciones)

El recurso por parte del Tribunal Constitucional a la doctrina establecida por el Tribunal Europeo de Derechos Humanos como argumento de autoridad es criticable cuando sirve para disminuir el nivel de protección que nuestro ordenamiento constitucional otorga a los derechos fundamentales. Este es el caso de la STC 34/2011, que utiliza para su fundamentación argumentos de la sentencia Lautsi II, sin tener para ello en cuenta ni el margen de apreciación que esta concede a los Estados ni su carácter de estándar mínimo de protección. Frente a este planteamiento, este trabajo reivindica el papel de la vertiente negativa de la libertad religiosa y la neutralidad religiosa del Estado en el análisis de la presencia de crucifijos en las paredes de las aulas escolares públicas.The use by the Spanish Constitutional Court of the jurisprudence of the European Court of Human Rights may raise some criticism when the result is the reduction of the level of protection given to a fundamental right according to the domestic constitutional system. This may be the case of STC 34/2011, grounded on ECtHR judgment in Lautsi II, but without taking into account that it relies on the Member State’s margin of appreciation and that the ECHR only provides a minimum standard of protection. In opposition to that line of reasoning, the negative side of religious freedom and the neutrality of the State in religious matters are emphasized as relevant domestic constitutional arguments to analyze the presence of crucifixes on state school walls in Spain.

Individuals from Minority and Marginalized Groups before the Strasbourg Court: Legal Norms and State Responses from a Comparative Perspective

The obligation of states to implement the European Court of Human Rights case-law and the potential to exert influence in domestic laws and policies have been instrumental in the establishment and consolidation of the regime of human rights protection established by the European Convention on Human Rights. This article outlines a frame for exploring domestic implementation of ECtHR judgments by specifically focusing on case-law pertaining to marginalized individuals and minorities across different countries. The Court’s jurisprudence has progressively extended the scope of the civil and political rights contained in the Convention to address and at times embrace a multifaceted set of rights claims by non-dominant and marginalized groups, such as prisoners, immigrants, refugees, ethnic, religious, sexual minorities, etc. The purpose of the research introduced by this article is to comparatively explore the conditions under which state authorities implement adverse judgments pertaining to such groups, as well as to probe whether these promote rights-expansive policy change at the national level.

The Enforcement of the Charter of Fundamental Rights of the European Union as a Challenge for the Multi-Level Protection System

The Lisbon Treaty, signed in December 2007 and supposed to be ratified in 2008, makes significant progresses in the area of human rights protection. The new article 6 of the Treaty on the European Union is devoted to fundamental rights and sets up a plurality of sources: the European Charter of Fundamental Rights, the European Convention on Human Rights and the general principles that contain the common constitutional traditions. Even if the new article 6 clearly states that the European Charter has the same value as the Treaty, these plural sources raise some questions. The actual added value of the Charter can be questioned. Since the Treaty allows for the possible membership of the EU to the European Convention of Human Rights, does the EU really need a 'new' catalog, especially if the Charter refers to the ECHR and the ECtHR judgments to define the interpretation given to the Charter's rights? By making these multiple references to the ECHR, the Charter also challenges any ambition of clear and well established hierarchy, and surprisingly moves away from the claim for simplification. Therefore, this proposal comprises a thorough analysis of the difficulties raised by the enforcement of the Charter in terms of legal pluralism and on the need to organize the intersystemic relations in a 'legal network'.