Protection Of Rights In Europe Research Articles

Navigating Cruelty: Examining ECHR Practice in Defining a Minimum Threshold for Torture facilitated by State agents

This article critically examines the European Court of Human Rights (ECHR) practice in defining a minimum threshold for torture. It goes in-depth with torture facilitated by State agents, as stipulated in Article 3 of the European Convention on Human Rights. While the identification of torture typically involves severe cases, the majority of instances under Article 3 pertain to degrading or inhuman treatment. Focusing on threshold cases related to freedom from degrading treatment or punishment, this article seeks to delineate the effective guarantee provided by this fundamental right within the Strasbourg organs’ judicial policy. The analysis underscores the dynamic and adaptive nature of the ECHR in interpreting and expanding the provisions of the Convention. By capitalizing on the graduated scale of degrading treatment, the Strasbourg organs have extended the protective scope of Article 3, contributing to the development of a progressive European public order. Ultimately, this exploration provides valuable insights into the judicial approach of the Strasbourg organs in defining the minimum threshold for torture perpetrated by State agents, shedding light on the evolving landscape of human rights protection in Europe.

디지털 단일시장의 파급효과와 유럽의 인권 보호 전통 사이의 융합 관점에서 보는 유럽연합의 일반개인정보보호규정

In this paper, I tried to explain the historical significance of the General Data Protection Regulation(GDPR), a personal information protection law, by examining the backgrounds of the establishment and the large contents frame of this Regulation. Through this study the author of this article came to the conclusion that the most important background and driving force for the birth of the European Union's personal information protection law was the development of the Single Market implied in the Single European Act of 1986. By its spillover effect to the flow of the digital·data time, the Digital Single Market developed into the being. These met with the tradition of human rights protection in Europe in convergence and formed the European Union's unique personal information protection law system and contents, which have great meaning for the European Integration and significance in the world. In this context, this General Data Protection Regulation is also expected to trigger significant spillover effects necessary to solve the problems of Europe and the world emerging in the so-called Fourth Industrial Revolution era.

The Future of Regional Human Rights Protection in Europe and the Americas – or: Subsidiarity Revisited

This article addresses the future of human rights protection in Europe and the Americas against the backdrop of increased backlash-tendencies in both regional human rights protection systems. It argues that the principle of subsidiarity may provide guidance in that context: Considerations of subsidiarity not only contribute to better understand the approaches of the European and the Interamerican Court of Human Rights (ECtHR, IACtHR) on a descriptive level. They may also provide normative parameters for an “ideal” distribution of roles between the national and international (regional) levels. Therewith, drawing on subsidiarity helps to deal with populist backlash-tendencies in a constructive manner. This is also reflected in the case law of the ECtHR and the IACtHR. While the Courts’ approaches to and interactions with the national level have traditionally differed significantly, this has changed more recently. Both Courts increasingly refer to the “good” functioning of domestic institutions, which may be viewed as expression of a cooperative dimension of subsidiarity. It also points the way to the future of regional human rights protection.

Walking Back Dissents on the European Court of Human Rights: A Rejoinder to Alec Stone Sweet, Wayne Sandholtz and Mads Andenas

Abstract Over the last decade, scholars have debated whether the shifting landscape of individual rights protection in Europe has influenced the decisions of the European Court of Human Rights (ECtHR). In our article, ‘Walking Back Human Rights in Europe?’, we analysed every minority opinion of the ECtHR Grand Chamber between 1998 and 2018. We found a substantial increase in what we labelled as ‘walking back dissents’ – minority opinions asserting that the Grand Chamber has overturned prior case law or settled doctrine in a way that favours the government. In their Reply, Stone Sweet, Sandholtz and Andenas (SSA) offer two principal critiques. First, they assert that they could not ‘replicate’ our coding. Second, SSA challenge our claim that legal and political developments in Europe have incentivized the ECtHR to move in a rights-restrictive direction. These claims are inaccurate and mischaracterize our article. First, SSA do not ‘replicate’ our study. Instead, they code a very small subset of judgments using more restrictive, subjective and vague criteria – which, unsurprisingly, yield fewer walking back dissents. Second, SSA narrowly focus on the Brighton and Copenhagen conferences, ignoring numerous other changes at the national and regional level that have created a more constrained environment for the ECtHR.

Fundamental Rights Seen Through the “Pluralistic Interpretive Box”: The National, European Court of Human Rights, and Court of Justice of the European Union Perspective

Interpretation, or the judicial understanding of the legal acts in the process of protection of the human rights, is becoming increasingly interesting and controversial, both from an aspect of the applied interpretation technique (which interpretation method is applied by the judge in a specific case and why), as well as from an aspect of the legal opportunism/legitimacy of the interpretation. It is a fact that so far, neither the European, nor the national legal theories and practice have offered coordinated systematic approach regarding the application of the legal interpretation methods, which often leads to different interpretation of the legal norms by the national and the European courts when applied in similar or identical legal situations for protection of the human rights. It is considered that the different interpretation of the legal documents by the judges endangers the protection of the human rights, but also the legal security of the citizens. Judicial discretion in choosing an interpretive method in a particular case by the national, or by the courts in Luxembourg and Strasbourg further complicates the already complex procedure of protection of human rights, which directly creates new problems instead of solving the existing ones. The "pluralistic interpretive box" is continuously filled with new and new cases from different approaches by different courts in the process of protection of human rights, which leads to increased scientific interest for a more detailed consideration of this issue. The growing scientific interest in the impact of the legal interpretation on the (non) equality of the human rights protection is the main reason for writing this paper, in which I will try to explain the connection between the three different, but still related issues encountered in the multilevel system of human rights protection in Europe. The first issue addressed in the paper concerns the most common methods of legal interpretation applied in the national and European court proceedings. The second issue concerns the search for a consistent answer to whether and how much legitimacy and legality the court decisions made by applying judicial discretion have when the interpretive method in judicial decision-making is chosen, and the third issue refers to finding an answer to the impact of such court decisions on the functionality and efficiency of the multi-level system of protection of human rights, that is, to what extent such court decisions have a positive or negative effect on the human rights protection. Given that each national court has its own instruments and techniques of interpretation by which the judges make their decisions, the need to study their causality and effectiveness is more than evident.

El Protocolo núm. 16 del Convenio Europeo de Derechos Humanos.

El Protocolo núm. 16 incorpora la posibilidad de que los órganos jurisdiccionales de mayor rango de los Estados soliciten al TEDH opiniones consultivas sobre cuestiones relativas a la interpretación o aplicación del CEDH o sus Protocolos. Este mecanismo procesal puede tornarse efectivo y complementario a los ya existentes para promover un funcionamiento coherente, armónico y eficaz del sistema multinivel de protección de los Derechos Humanos en Europa.
 A lo largo del trabajo se analizan los antecedentes y objetivos del mecanismo, el contenido del Protocolo, las cuestiones más controvertidas de la articulación y su aplicación en las dos únicas solicitudes resueltas hasta la fecha. Ello se complementa con el esbozo de una propuesta para la articulación del mecanismo en el ordenamiento español. The Protocol No. 16 establishes a mechanism allowing the Highest courts and tribunals of the Member States to request the European Court of Human Rights advisory opinions on questions concerning the interpretation of the Convention or the Protocols thereto. This procedural mechanism may become effective and complementary to the existing ones in order to promote a coherent, harmonious and efficient functioning of the multilevel system of Human Rights protection in Europe.
 The paper analyses the precedents and objectives of the mechanism, the content of the Protocol, the most controversial articulation issues and its application in the two requests resolved by now. This is complemented with a proposal for the articulation of the mechanism in the Spanish system.

Austerity-Based Labour Market Reforms in Greece v. Fundamental Rights in the Aftermath of the European Debt Crisis: An Analysis of Supranational and National Bodies’ Jurisprudence

The recent debt crisis in Europe has resulted in a significant number of structural reforms implemented in EU Member States across various fields, including the labour market, either in the context of the bailout mechanisms or the EU Economic Governance framework. This development has provoked fundamental rights concerns and has consequently given rise to litigation strategies that put austerity reforms under the test of legality before supranational and national competent bodies and courts. However, the jurisprudence that has developed in that regard seems incoherent and shows real differences in approach. This study analyses the paths of judicial reasoning that supranational and Greek bodies have adopted in fundamental rights cases challenging austerity-based labour market reforms implemented in Greece during the European Debt Crisis. It concludes that different paths of reasoning have been adopted, which could even be regarded as conflicting at several instances. They are thus reflecting the well-known particularities and discrepancies of fundamental rights protection in Europe as well as the conflicting relationship of social rights with economic and fiscal considerations imposed by austerity in times of crisis and beyond. Austerity, Greece, labour market reforms, fundamental rights, European Debt Crisis, social rights, labour law, ECHR, European Social Charter, Court of Justice of the European Union

Case-law of the European Court of Human Rights and the European Union Law: An Area of Important Interaction and Dialogue for Stronger Human Rights Protection in Europe

An overlap in the activities of the Council of Europe and the EU as regards the protection of human rights leads to cross-fertilisation of both systems. Commitment to human rights and the Convention is notably manifested in the on-going dialogue on accession of the EU to the European Convention on Human Rights. Ideally, interaction between the Council of Europe and the European Union should lead to construction of a uniform human rights constitutional legal space, built on the same principles of compliance with the rule of law and human rights, a destination that still remains on the horizon. The process of execution of judgments of the Strasbourg Court, which is a forward looking technical and non-political process, with potential political consequences, results in the transformation of the legal systems of the Council of Europe member states and thus assists them in bringing their legal systems closer to being compatible with the EU accession process. Thus, the strategic aim of the European integration and EU accession should be aligned with the Strasbourg judgment’s implementation process, success in execution of judgments equalling to success in attainment of the Copenhagen accession criteria.Manuscript received 03.03.2020

Specyfika odpowiedzialności za naruszenia Europejskiej Konwencji Praw Człowieka związane z działalnością nieuznawanych reżimów – analiza orzecznictwa

The aim of the article is to compare the way in which the issue of responsibility for violations related to the acts of unrecognized authorities claiming to be States is treated by the European Court of Human Rights and other international courts, particularly the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia. The article considers in detail the relations between jurisdiction and responsibility, responsibility of parent States (including the concept of “positive obligations”) and responsibility of States which provide assistance to unrecognized regimes (with emphasis put on the concept of “effective control”). The results of the study indicate that the jurisprudence of the European Court differs in several important aspects from decisions of other international courts. These differences, while undoubtedly enhancing the protection of human rights in Europe, contribute to the process of fragmentation of the law of international responsibility.

Loremza Violini and Antonia Baraggia (eds), The Fragmented Landscape of Fundamental Rights Protection in Europe – The Role of Judicial and Non‐Judicial Actors, Cheltenham: Edward Elgar, 2018, 240 pp, hb £90.00.

The Modern Law ReviewVolume 83, Issue 3 p. 713-717 REVIEWS Loremza Violini and Antonia Baraggia (eds), The Fragmented Landscape of Fundamental Rights Protection in Europe – The Role of Judicial and Non-Judicial Actors, Cheltenham: Edward Elgar, 2018, 240 pp, hb £90.00. Stefan Theil, Stefan Theil Bonavero Institute of Human Rights, Faculty of Law, University of Oxford.Search for more papers by this author Stefan Theil, Stefan Theil Bonavero Institute of Human Rights, Faculty of Law, University of Oxford.Search for more papers by this author First published: 03 December 2019 https://doi.org/10.1111/1468-2230.12500 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume83, Issue3May 2020Pages 713-717 RelatedInformation

The margin of appreciation and freedom of religion: assessing standards of the European Court of Human Rights

ABSTRACT Throughout history, the relationship between religion and State has posed challenges. The issue of religious symbols in the public sphere is an area where the European Court of Human Rights has granted a wide margin of appreciation to States. The main argument is that there is no European consensus on the issue and that national authorities are better positioned to determine when interference with the freedom of religion becomes necessary in a democratic society. However, this argument has evoked criticism that no strong legal reasons or standards have been applied to the doctrine of the margin of appreciation. This article aims to analyse the Court’s standards through an examination of the limits imposed on the doctrine under European supervision. Notwithstanding the controversy over its application, the doctrine does play an essential role in accommodating the diversity of human rights protection in Europe. Therefore, in future judgements, the Court should focus on a proportionality test against the State arguments, which would allow the Court to determine the applicability of the doctrine in the case of freedom of religion.

Book review: The Fragmented Landscape of Fundamental Rights Protection in Europe: The Role of Judicial and Non-Judicial Actors, edited by Lorenza Violini and Antonia Baraggia. (Cheltenham: Edwa

Book review: <i>The Fragmented Landscape of Fundamental Rights Protection in Europe: The Role of Judicial and Non-Judicial Actors</i>, edited by Lorenza Violini and Antonia Baraggia. (Cheltenham: Edwa

Austerity-Based Labour Law Reforms in Greece vs Fundamental Rights During the European Debt Crisis. An Evaluation Through the Lens of Supranational and National Bodies’ Jurisprudence

The recent debt crisis in Europe has resulted in a significant number of structural reforms implemented in EU Member States across various fields, including the labour market, either in the context of the bailout mechanisms or the EU Economic Governance framework. This development has provoked fundamental rights concerns and has consequently given rise to legal mobilization strategies that put austerity reforms under the test of legality before supranational and national competent bodies. However, the jurisprudence that has developed in that regard seems incoherent and shows real differences in approach. This study analyzes the paths of judicial reasoning that supranational and Greek bodies have adopted in fundamental rights cases challenging austerity-based labour market reforms implemented in Greece during the European Debt Crisis. It concludes that different paths of reasoning have been adopted, which could even be regarded as conflicting at several instances, reflecting in that way the well-known particularities and discrepancies of fundamental rights protection in Europe and the conflicting relationship of fundamental (social) rights with economic and fiscal considerations imposed by austerity in times of crisis and beyond.

Social Rights Protection in Europe in Times of Crisis: ‘A Tale of Two Cities’

Abstract Europe can be considered a sort of fortress of the protection of socio-economic rights. However, this bright scenario has been unsettled by the eruption of the Eurozone crisis, which has challenged the narrative of social Europe and swept away protections for social rights in Member States grappling with sovereign debt crises such as Greece, Portugal, Ireland, Cyprus, Latvia and Romania. In these countries, austerity measures led to persistent violations of social rights, under the external constraint of conditionality regimes which involved cuts in wages, pensions and welfare services. Consequently, austerity measures were challenged in domestic and European Courts and before the ECSR. In other words, there has been a ‘turn to the law’, in order to give concrete effect to the potential offered by the relevant legal instruments. What has been the general attitude of the Courts and quasi-judicial bodies to actions challenging austerity measures? Since the analysis of how the Courts and other human rights bodies manage the complex and controversial balance between austerity and social rights is an excellent ‘stress test’ to determine the ‘weight’ of the latter not only in the political debate, but also in the human rights discourse, this paper will focus on the ‘crisis cases’ in Europe, so as to shed light on the actual level of protection for social rights.

Comparing Human Rights in Europe and Oceania

The 9th International Conference of the Sejm of the Republic of Poland Systems of Protection of Human Rights in Europe and in Australia &amp; Oceania. Warsaw, (April 24-25, 2017), Jan Kochanowski University in Kielce and the Polish Parliamentary Association. The paper reports the ninth International Conference of the Sejm of the Republic of Poland Systems of Protection of Human Rights in Europe and in Australia &amp; Oceania; Universal’s Context – Regional’s Specific – Implementations’ Conditioning which took place in Warsaw on April 24-25, 2017. It was organised on the occasion of the 60thanniversary of the Rome Treaties, 25th anniversary of signing the Treaty of European Union and 30th anniversary of establishment of the Australian Human Rights Commission. Jan Kochanowski University in Kielce along with the Polish Parliamentary Association gathered academics, politicians, diplomats and lawyers to discuss human rights in Europe and Oceania.

European Social Constitutionalism

Within mainstream Anglo-American constitutionalist thought, social rights are generally assumed to fall outside of the appropriate scope of constitutional regulation: their content and status are viewed as matters best left to be determined by the free flow of political contestation, rather than being governed by the written provisions of the constitutional text and/or judicial interpretation of fundamental rights guarantees. The development of socioeconomic rights review in states such as South Africa, Colombia, India and Brazil has challenged this assumption. As a result, the apparent dichotomy between the ‘old’ Anglo-American orthodoxy and the ‘new’ social constitutionalism emerging in the Global South has come to dominate much of the comparative constitutional literature on social rights. However, as Ran Hirschl has argued, comparative scholarship needs to be careful about restricting its focus to a few favoured national case studies. There exists an alternative strand of social constitutionalism in continental Europe, which is barely mentioned in much of the academic literature on this topic. This ‘European’ strand of social constitutionalism differs in significant ways from the approaches to social rights protection being developed in the Global South. In some ways, it is weaker and more diffuse - at least when it comes to judicial enforcement of social rights. However, it has the potential to acquire greater legal substance. Furthermore, it possesses a latent political/symbolic dimension which still retains a degree of potency. Part I of this paper outlines the development of social constitutionalism in Europe, at both the level of nation states and at the transnational level of the EU and the Council of Europe. Part II then explores how constitutional protection of social rights in Europe remains limited and uncertain in scope, despite the formal commitment of European states to the ‘social state’ principle. Part III analyses how the post-2008 austerity crisis has sharply exposed the normative inchoateness of European social constitutionalism, notwithstanding the gradual expansion in certain jurisdictions of judicial protection of social rights. Part IV examines how this crisis also opens up opportunities for legal protection of social rights to acquire more ‘bite’, with the concept of the ‘social minimum’ perhaps playing more of a role in this regard than in other legal systems. However, the argument is also made that the ultimate value of European social constitutionalism may be symbolic and political in nature, and lies in how it undercuts attempts to foreclose on the aspiration of creating a genuinely ‘social Europe’.

In Search of the Concept of Essence of EU Fundamental Rights Through the Prism of Data Privacy

This article aims to shed light on the notion of essence of fundamental rights that has been relied upon by the Court of Justice of the EU (CJEU) in the Schrems and Digital Rights Ireland cases. This article places the notion of essence into the framework of multi-level protection of fundamental rights in Europe, arguing that this concept has its origins not only in case law of the CJEU concerning the ‘very substance’ of fundamental rights, but also in the national constitutional traditions of Member States and the case law of the European Court of Human Rights. This article further elaborates on the constitutive elements of this notion and proposes a classification of the different types of breaches of the essence of fundamental rights. Finally, while elaborating on the relationship between the notion of essence and the principle of proportionality, this article proposes an EU methodology for determining a breach of the essence of a fundamental right.

Governing from the Margins: The European Court of Human Rights’ Margin of Appreciation Doctrine as a Tool of Global Governance

The European Court of Human Rights’ margin of appreciation doctrine is of growing importance in general international law. Existing scholarship, however, fails to consider the political stakes involved in its use. The aim of this paper is to offer a reconceptualisation of the margin as a tool of global governance in the context of the increasing judicialisation of human rights protection in Europe. It then proposes four sketches of its possible governance effects, situating it within broader debates concerning competing models of international constitutionalisation, the Court’s unarticulated discrimination between different European States, and the challenges the Court faces in maximising compliance with its judgments. The paper concludes by arguing that the Court’s use of the margin as an ‘escape valve’ to avoid potentially controversial proportionality assessments poses a challenge to its long-term legitimacy, and involves a kind of ‘bad faith’ exercise of its governance power.

Advisory Opinions of the European Court of Human Rights: Unbalancing the System of Human Rights Protection in Europe?

Advisory Opinions of the European Court of Human Rights: Unbalancing the System of Human Rights Protection in Europe?

The EU Fundamental Rights Landscape after Opinion 2/13

On 18 December 2014, the Court of Justice of the EU ruled in its Opinion 2/13 that the EU cannot accede to the ECHR under the terms of the negotiated Draft Accession Agreement. The Opinion and the stalemate it seems to have caused, raise important questions concerning the overall landscape of fundamental rights protection in Europe. Can the Court’s objections against the Draft Accession Agreement be overcome? Can the Agreement be re-negotiated to meet these objections? What are the legal issues such negotiations will have to solve? Is non-accession an option? What could the European system of human rights protection look like without accession? And what are the foreseeable consequences of accession or no accession for national courts? This joint working paper results from a workshop held at Maastricht University on 26 June 2015, which brought together academics and practitioners, members of negotiating teams and judges from the ECtHR, the CJEU and national courts, to discuss the consequences of Opinion 2/13 for broader issues of fundamental rights protection in Europe, and will examine future perspectives for accession of the EU to the ECHR.