Protection Of Rights In Europe Research Articles

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.

Eu accession to the ECHR: Enlarging the human rights protection in Europe

This paper deals with the importance of the EU accession to the ECHR, as the most significant regional instrument for human rights protection. The paper outlines the evolution of the idea of the accession to the ECHR, different stages of that process, as well as a Draft agreement which attempted to resolve some complex legal issues relating to the specific nature of the EU legal system. In the second part of this paper, the Opinion 2/13 of the CJEU from December 2014 has been analyzed, which basically interrupted the entire accession process. It is noted that currently the ECtHR has only an indirect constitutional control over the EU's legal order by examining laws of the Member States. The EU accession to the ECHR would allow examination of all acts and measures in the EU from the human rights perspective, including those over which the CJEU does not have full oversight function. Therefore, the authors argue that due to the establishment of legal certainty and external control over acts of the EU institutions, it is necessary to find a way for the continuation of the accession process, as soon as possible. There are two possible scenarios: a re-negotiation of the agreement on accession, or modification of the EU Treaties. Both solutions seem almost impossible in the created political milieu. However, there is a hope that negotiations will continue due to the influence of the Avotiņs judgment from May 2016 in which the ECtHR upheld the principle of equal protection from the Bosphorus case, pointing to the importance of maintaining mutual trust between two courts, as well as the need for the establishment of greater credibility and EU strengthening after Brexit.

Protecting Human Health and Security in Digital Europe: How to Deal with the “Privacy Paradox”?

This article is the result of an international research between law and ethics scholars from Universities in France and Switzerland, who have been closely collaborating with technical experts on the design and use of information and communication technologies in the fields of human health and security. The interdisciplinary approach is a unique feature and guarantees important new insights in the social, ethical and legal implications of these technologies for the individual and society as a whole. Its aim is to shed light on the tension between secrecy and transparency in the digital era. A special focus is put from the perspectives of psychology, medical ethics and European law on the contradiction between individuals' motivations for consented processing of personal data and their fears about unknown disclosure, transferal and sharing of personal data via information and communication technologies (named the "privacy paradox"). Potential benefits and harms for the individual and society resulting from the use of computers, mobile phones, the Internet and social media are being discussed. Furthermore, the authors point out the ethical and legal limitations inherent to the processing of personal data in a democratic society governed by the rule of law. Finally, they seek to demonstrate that the impact of information and communication technology use on the individuals' well-being, the latter being closely correlated with a high level of fundamental rights protection in Europe, is a promising feature of the socalled "e-democracy" as a new way to collectively attribute meaning to large-scale online actions, motivations and ideas.

Who's afraid of the Charter? The Court of Justice, national courts and the new framework of fundamental rights protection in Europe

The Charter of Fundamental Rights of the European Union has forced the European Court of Justice and its national counterparts to face a series of difficult and principled questions: Who is the ultimate interpreter of fundamental rights in Europe? Which standard of protection is to be given priority? How does the Charter bind Member States when applying EU Law? This article argues that the first seminal decisions of the European Court of Justice on the matter, in particular the judgments in AkerbergFranssonand Melloni, have set the ground for a new framework of fundamental rights protection in the European Union. However, this framework does not depend on the sole authority of the Luxembourg court, but on a complex system of checks and balances that will demand complicity and commitment on the part of national supreme and constitutional courts.

Is the ECHR ready for global ageing?

In connection with the ongoing global demographic change, a new challenge to the international protection of human rights has emerged – how to protect the rights of older people, who will soon account for one-third of the world's population. However, no treaty to protect older persons has been adopted so far at a global or European forum. As a result, we should depend on the currently effective solutions. Nowadays, the European Convention on Human Rights – ECHR (formally the European Convention for the Protection of Human Rights and Fundamental Freedoms) is one of the most effective instruments of human rights protection. Therefore it is worth considering whether it is able to protect the specific interests of this vulnerable group effectively. This article is an analysis of the provisions of the ECHR and the decisions of the European Court of Human Rights (ECtHR) that have the greatest influence on the protection of human rights in Europe. This analysis indicates that, in Europe, it is necessary to adopt a new approach to the problem of protecting the rights of older persons, and especially making the ECHR an elderly-sensitive instrument.

The Framework for Fundamental Rights Protection in Europe under the Prospect of EU Accession to ECHR

Issues of human rights have always been crucial in the continent of Europe. The institutionalization of fundamental rights for European citizens remained a matter of much discussion among legal scholars for decades. With the amendment of the Lisbon Treaty, major changes were forwarded within the Union regarding that matter; one of those is the accession of the Union to ECHR. The purpose of this paper is to discuss major institutional aspects of this accession and propose solutions, after addressing certain difficulties on one hand and on the other, to draw the new picture of judicial protection of fundamental rights in Europe.

The Influence of the European Convention on Human Rights on Judicial Reasoning in the Federal Republic of Germany, the Republic of Poland and the United Kingdom - A Comparative Analysis of Cases Concerning Father-Child Relationship

The responsibility for adequate protection of individual rights in Europe no longer lies within the exclusive power of national courts subject to the supervision of the supranational institution, European Court of Human Rights. In order to move in the same direction some degree of coherence and cooperation among the national and supranational courts suppose to take place.European Convention on Human Rights leaves it to the Member States to determine the domestic effects of the Strasbourg Court’s judgements. Although, its decisions are essentially declaratory in nature, The European Court of Human Rights under Art.46 of the ECHR, recommend to, or even orders the States specific measures to be adopted. This is a situation which creates possible inconsistency of domestic and international legal obligations. Legal-cultural realities prevent the case law of the Strasbourg Court from having a deeper influence on national judges' decisions. One way to react and make the ECtHR's judgements more effective in national courts is further dialogue.How do national judges respond to the supranational court? But for Strasbourg judgments, would domestic judges exercise their powers in respect of human rights differently? What domestic factors shape significance of ECtHR’s dictum in decision making process of national judges in the United Kingdom, the Republic of Poland and the Federal Republic of Germany? All of these qestions have been aswered with reference to father-child relationship.

The Future of Human Rights Protection in Europe

This article is a slightly revised version of an address given at the 25th anniversary of the Netherlands Helsinki Committee in The Hague, Netherlands, 25 January 2013.

New Challenges for Pluralist Adjudication after Lisbon: The Protection of Fundamental Rights in a Ius Commune Europaeum

With the introduction of a legally binding Charter of Fundamental Rights and the envisaged accession of the European Union (EU) to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the Treaty of Lisbon significantly affects the legal system for the protection of fundamental rights in Europe. It is argued that those innovations reinforce the integration between different legal suborders at the national, European Union and pan-European level into a common constitutional space. Simultaneously, it creates new challenges for pluralist adjudication on the part of the national constitutional courts, the Court of Justice of the European Union and the European Court of Human Rights. Arguably, the ambiguous scope of application of the Charter of Fundamental Rights, the uncertain implications of EU membership to the ECHR and the increasing overlap between national and European fundamental rights complicate the protection of human rights in the European legal order.

Aida Torres Perez. Conflicts of Rights in the European Union. A Theory of Supranational Adjudication

Aida Torres Perez� Conflicts of Rights in the European Union. A Theory of Supranational Adjudication 1 is a comprehensive monograph dealing with one of the most striking normative challenges in the European Union (EU): the relationship between the European Court of Justice (ECJ) and Member State courts in adjudicating fundamental rights. Torres Perez presents the existing spheres of fundamental rights protection in the EU and provides a thorough analysis of the conflicts that emerge where these different spheres overlap. Her volume covers a number of different approaches and provides suggestions on how to deal with these conflicts and eventually proposes a normative model for ECJ adjudication through judicial dialogue based on comparative constitutional reasoning. The book is well structured in three parts. The first part gives a brief but thorough overview of the different systems of fundamental rights protection open to EU citizens. The author describes these different systems as the multilevel protection of rights in Europe and distinguishes between human rights protection through national constitutions (constitutional rights), through the ECJ (EU fundamental rights) and through the European Convention on Human Rights (convention rights). She outlines the conflicts that arise when these different systems of fundamental rights protection overlap. In general, such conflicts may arise when different rights are considered to be fundamental (at 10) and where community members disagree regarding fundamental rights interpretation (at 11), especially concerning sensitive issues like abortion or affirmative action (at 16). A potential for conflict exists whenever states act within a field of application of EU law which includes two types of situations: (i) state acts implementing EU law, and (ii) state acts derogating from the EU basic freedoms of movement (at 16). An example of a rights conflict between German courts and the ECJ is the �banana saga�, where the courts disagreed on �

Market Freedoms, Fundamental Rights, and the European Public Order: Views from Cyprus*

The objective of this article is to study in a comparative perspective the evolution of legal interests involved in the protection of fundamental rights/freedoms in the EU constitutional legal order,1 as perceived by the Court of Justice of the European Union (‘CJEU’) in its case-law with respect to Cyprus. The most obvious interest of this article lies in the analysis of the principles of European integration of Cyprus as set out by the Court in its jurisprudence. Beyond this immediate academic interest,2 and most importantly, it is argued that this case-law participates in the broader construction of the EU constitutional legal order through the development of the protection of fundamental rights/freedoms in the EU.3 This case-law arguably takes the legal enforcement of individual rights granted under EU law to new horizons, by revisiting EU law principles in the context of the EU–Cyprus relations. Ultimately, it illustrates the ever-growing impact of rights-based claims on the EU constitutional legal order, arguably participating at the EU level in the construction of a ‘European public order’4 devoted to the effective judicial protection of individual rights in Europe. This article therefore extends into the realm of international law, both through the public sphere with a review of the protection of fundamental rights inter alia under the European Convention of Human Rights (‘ECHR’) and through the private sphere with the consideration of legal issues arising in transnational civil and commercial disputes.

Fundamental Rights Protection in the EU Post Lisbon Treaty

The Lisbon Treaty, which entered into force on 1 December 2009, constitutes a major step forward as regards fundamental rights protection in Europe. First and foremost, the fact that EU Charter of Fundamental Rights has become a legally binding element of the Union's legal order means that the Charter should now be viewed as the primary source of EU fundamental rights to be relied on, where relevant, by EU as well as national courts when interpreting and applying Union law. While the Charter ensures a fine crystallisation of rights resulting from national, European and international sources, its legal impact, however, is likely to be anything but revolutionary, and one may also regret that its interpretation and application is made extremely complex by a certain number of byzantine, if not superfluous, provisions. Secondly, the Lisbon Treaty provides the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). As a matter of fact, new Article 6(2) TEU not only offers, at last, an explicit legal basis allowing the EU to accede to the ECHR but it actually imposes on the EU an obligation to seek accession. This obligation is not without raising a number of difficulties. This is particularly so because negotiation of the future agreement relating to the accession of the Union to the ECHR is conditioned to the respect of requirements that differ from those normally governing the accession of a state. For instance, the future agreement must make provision for preserving the specific characteristics of the Union and its law.

Opinion on the Implications of a Legally-Binding EU Charter of Fundamental Rights on Human Rights Protection in Europe

Opinion on the Implications of a Legally-Binding EU Charter of Fundamental Rights on Human Rights Protection in Europe

The Protection of Cultural Rights in Europe: None of the EU's Business?

Over the last decade, cultural diversity and the promotion and protection of cultural human rights have become important issues in the European context. States are trying to protect their national cultural identity within the European integration process, while at the same time several communities within States, such as minorities, indigenous peoples and immigrant communities, demand the promotion and protection of their cultural identity. The Council of Europe has established a human rights mechanism including the protection of cultural rights and rights of minorities. Within the European Union, the promotion and protection of human rights has slowly become a part of the internal policies, the latest step being the proclamation of the Charter on Fundamental Rights. However, the promotion of cultural diversity and of cultural rights or rights of minorities hardly play a role in this respect. Bearing in mind the possible inter-State implications that these issues may have, Member States should co-operate more closely and develop policies at the EU level in relation to the promotion and protection of cultural diversity.

The ICJ, the ECJ, and the Integrity of International Law

The European Court of Justice and the International Court of Justice are both courts born of war, established by interstate treaties and having their seats in European cities. The relationship between Luxembourg and Strasbourg has been well explored, and has developed over the years. The major issue today seems to be one of the coherence of human rights protection in Europe—an issue addressed with knowledge, depth, and insight by Kruger and Polakiewicz in the OctoberHuman Rights Law Journal.2

The Future of the EU Charter of Fundamental Rights

The question of what to do with the EU Charter of Fundamental Rights in the future is controversial because of disagreements on a considerable range of different issues. There is disagreement on what the history of human rights protection in Europe teaches us. There is disagreement on what the current Charter is and what it does. There is disagreement over what giving legal force to the Charter would involve and what its implications would be. There is disagreement on the place that a future Charter of Fundamental Rights should have in the future of European integration, and (indeed) what the future of European integration should be. There is disagreement over the role of the Charter in the development of the European social model. There is disagreement over the role that rights serve in democratic government. There is disagreement over the nature of human rights, and the autonomy of the law that seeks to protect them. There is, finally, disagreement over the benefits of ambiguity. It is my argument in this paper that an informed understanding of the specific options set out in the paper on how to treat the Charter of Fundamental Rights in the future requires an understanding of each of these sets of disagreements. A complex, but vital, task awaits all those concerned with the future of Europe, not least the Convention on the future of Europe established by the European Council at Laeken.

The protection of minority rights in Europe: From conference to implementation

This article traces the development of the protection of minority rights in Europe from the signing of the Helsinki Final Act in 1975, through to the various steps which have been taken recently in the shape of the Council of Europe's Framework Convention for the Protection of National Minorities, which was opened for signature on 1 February 1995, and the bilateral treaties on ‘Good‐Neighbourliness’ entered into by many former Eastern bloc states. As an illustration of the bilateral approach, discussion focuses upon key aspects of the rights of the minority populations of the Republic of Hungary and the Slovak Republic following the signing and ratification of the Treaty on Good‐Neighbourliness and Friendly Co‐operation 1995. The treaty is noteworthy in many respects: as between the kin‐minorities of the respective states, it incorporates the commitments of the Copenhagen Document, the rights enshrined in Council of Europe Parliamentary Assembly Recommendation 1201 and UN General Assembly Declaration No. 47/135/, all as legal obligations. In the field of national minorities generally, the parties have agreed to apply the provisions of the Framework Convention. The obligations undertaken are analysed and the conformity of domestic legislation is considered

Monitoring Human Rights in Europe. Comparing International Procedures and Mechanisms. Edited by Arie Bloed, Liselotte Leicht, Manfred Nowak, and Allan Rosas. Dordrecht, London, Boston: Martinus Nijhoff Publishers, 1993. Pp. xvi, 327. Index. Dfl.l85; $115;£74.

Abbreviations. Introduction. The monitoring of human rights and the prevention of human rights violations through reporting procedures V. Dimitrijevic. The efficiency of individual complaint procedures: the experience of CCPR, CERD, CAT and ECHR R. Mullerson. Monitoring the CSCE Human Dimension: in search of its effectiveness A. Bloed. A comparative study of the monitoring mechanisms and the important institutional frameworks for human rights protection with the Council of Europe, the CSCE and the European Community M. Pentikainen, M. Scheinin. The contribution of NGOs to the monitoring and protection of human rights in Europe: an analysis of the role and access of NGOs to the intergovernmental organisations R. Brett. International mechanisms for the prevention of torture M. Nowak, W. Suntinger. International mechanisms for the monitoring and the protection of minority rights: their advantages, disadvantages and interrelationships G. Alfredsson, D. Turk. Future protection of economic and social rights in Europe A. Eide. International monitoring mechanisms in situations of armed conflict A. Rosas. The collective responsibility of states to ensure respect for humanitarian principles L. de Boisson de Chazournes. From Nuremburg to the Balkans: the international war crimes tribunal for the former Yugoslavia N. Howen. Case study on the former Yugoslavia: the international mechanisms, their efficiency and failures R. Wieruszewski. General conclusions and recommendations. Index.

A. Clapham, F. Emmert, eds., Collected Courses of the Academy of European Law, 1990 – Vol. I (Book 1: Community Law; Book 2: The Protection of Human Rights in Europe), European University Institute, Florence/M. Nijhoff Publ., Dordrecht 1992, 367 pp. and 364 pp. respectively, Dfl. 195 (each).

A. Clapham, F. Emmert, eds., Collected Courses of the Academy of European Law, 1990 – Vol. I (Book 1: Community Law; Book 2: The Protection of Human Rights in Europe), European University Institute, Florence/M. Nijhoff Publ., Dordrecht 1992, 367 pp. and 364 pp. respectively, Dfl. 195 (each).

Human Rights in Europe – Part II The European Court of Justice and Human Rights

In a previous contribution on the protection of human rights in Europe, I discussed some developments taking place in the Conference on Security and Cooperation in Europe (CSCE). Despite the major changes that have occurred in the CSCE during the last year, I would like to address the matter this time from quite a different perspective.2 This short note will focus on the importance of human rights in the legal order of the European Communities – cynical as it may seem to address this rather ‘sophisticated’ issue at a time that in the Yugoslavian civil war human rights are violated with a harshness that has been unknown to Europe for decades.