Suchergebnisse

This paper summarizes the arguments and counterarguments within the scientific discussion on the issue of choosing between Article 6 (Right to a fair trial) or/and Article 8 (Right to family life) of the European Convention on Human Rights (hereafter 'ECHR') when being applied by the European Court of Human Rights (hereafter 'ECtHR') in parent-child relationship cases. The main purpose of this research is to understand these provisions and their interplay. There is no particular systematization of literary sources and approaches for solving this problem because it is new. The analysis of applications lodged before the ECtHR indicates that the applicants usually raise both provisions for the reason of procedural safety. What is the response of the ECtHR? The investigation in this paper concerning the topic 'what is protected by which provision, and is there any pattern in the application of Articles 6 and 8 in cases involving both provisions?' is carried out in the following logical sequence: Relevant legal framework (Section 2); Research interest and question (Section 3); Research methodology (Section 4); Parental authority, custody, and access/contact, regarding cases respectively involving Articles 6 and 8 ECHR (Section 5). The methodological tool of the research method was the ECtHR Hudoc database. The object of the research is the ECtHR, because, namely, this institution interprets Article 6 and Article 8 of the ECHR. The paper presents the results of an empirical analysis of 212 judgments delivered by the ECtHR during the last twenty years. These showed that, with regard to the interplay between Articles 6 and 8 ECHR, there are some trends in its case-law which give guidance to the applicants, the judges and other practitioners concerned, as well as to scholars. The results of the research can be useful in efficiently analyzing, applying, defending, and adjudicating these rights.

Keywords: right to a fair trial, right to family life, parental authority, parental care, access/contact, European Convention on Human Rights.

AbstractIn A Cosmopolitan Legal Order, Stone Sweet and Ryan suggest that 'from the standpoint of global law, we see that the [European Court of Human Rights] has taken its place in a pluralist, rights-based international order, as one trustee of this global order'. This article is a preliminary attempt to evaluate signs of movement toward global rights review. A multi-level charter of rights exists in the network of international and regional human rights treaties and in national constitutions. An incipient structure of global rights review exists in the form of the regional human rights courts, which see themselves as trustees of the larger global human rights system. Judicial dialogue among the regional courts allows for informal, decentralized coordination among them. The European Court of Human Rights serves as a point of reference for the African and Inter-American systems, though these also cite each other. Transregional judicial dialogue establishes a rudimentary, informal and decentralized mechanism of coordination among bodies that exercise a review function in the multi-level system of international human rights.

Like other institutions, the European Court of Human Rights (ECtHR) is often called upon to deal with complex situations where the notion of risk is at stake. This may occur in a variety of cases which involve, for example, threats from an individual to another's life or the (expected) decision to deport a person to his or her country of origin where he or she is at risk of torture or other ill-treatment. In these cases, applicants often claim that their fundamental rights (for example, the right to life or the prohibition of inhuman treatment) are or had been exposed to a risk and allege that a State fails or has failed to react adequately in order to prevent a damage (death, injury, etc.) from occurring. The ECtHR must then examine this alleged risk in order to check whether the situation leads to a violation of a provision of the Convention. In this context, the way in which the Court understands the concept of risk and carries out risk analysis in practice can be decisive for the outcome of its reasoning. The risk analysis that judges have to produce is however a complex intellectual challenge. This requires them to examine current or past situations that are characterized by uncertainty. In practice, it appears that the reasoning developed by the Court in this respect is not based on clearly defined concepts or an identifiable methodology. For instance, a study of the terminology used in the case law, both in English and French, reveals some inconsistencies which suggest an unsystematic approach. In other words, the ECtHR often undertakes operations that involve risk analysis, but it does not seem to implement the theories based on the extensive literature that has been developed in other disciplines (such as economy, sociology or psychology). Nor does the Court use the tools that are generally referred to by risk management practitioners. Nonetheless, a reference to some key elements of the risk literature - such as the estimation of the severity and probability of a damage (to assess the level of a risk) or the notion of risk acceptability, in its individual and collective dimensions - are likely to allow a new reflection on some significant concepts of human rights law. Thus, the economic notion of severity could be linked to the concept 'minimum level of severity' which can be found in the case law of the ECtHR, while the concept of probability could help to explain certain reasoning in terms of evidence. Finally, the examination of the elastic notion of risk acceptability could provide new explanations for legal concepts that also have an elastic character, such as legitimacy, proportionality or margin of appreciation of States. ; Peer reviewed

AbstractThe European Court of Human Rights (ECtHR) has not yet ruled against Spain for breaching Article 3 of the European Convention on Human Rights (ECHR) on account of the material conditions in Spanish prisons. Most of the ECtHR´s case law regarding Spanish prisons and detention conditions refers to theincommunicadodetention regime, for which the ECtHR has condemned Spain for breaching the procedural limb of Article 3 of the ECHR and, in its most recent decision on the topic:Portu Juanenea and Sarasola Yarzabal v. Spainof 13 October 2018, also for breaching the material limb of that same provision. Besides the case law regarding theincommunicadodetention regime, the ECtHR has ruled on issues related to arrangements for granting adjustments of sentence, which have traditionally been understood to fall outside the scope of the ECHR. In this sense,Del Río Prada v. Spainof 21 October 2013 andArrozpide Sarasola and Others v. Spainof 23 October 2018 constitute important attempts of re‐examining the concept of penalty for the purpose of extending the guarantees of the Convention. Still, however, altogether considered, the case law of the ECtHR on Spain's prison system and policies is relatively modest if compared with the significant case law issued against other European countries regarding this same topic. The reasons behind the limited ECtHR oversight of Spain's prison system are varied and not straightforward and the present article aims at shedding light on this question, while highlighting the many potential areas where an alignment with some of the criteria set forth by the ECtHR is needed.

Turkey has long retained the record of individual applications before the European Court of Human Rights (ECtHR). On the other hand, the ECtHR has been playing a crucial role in the democratization of this country, as most of its rulings were followed by substantial reforms. This, however, cannot conceal a dichotomy: although the reforms reflect the political will of the government, the decisions rendered by national courts often indicate the opposite, hampering the democratization process and leaving the country with a judiciary impasse. The reasons and consequences of this phenomenon are analyzed in this essay.