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(1 - 13 of 13)

Rijpkema, B.R. 2020

Local Militant Democracy: Exploring the Relevance of Subnational Democracy for Normative Militant Democracy Theory

Part of book or chapter of book

open access

Zon, K.A.M. van der 2020

Pleegrechten voor kinderen: Een onderzoek naar het realiseren van de rechten van kinderen die in het kader van een ondertoezichtstelling in een pleeggezin zijn geplaatst

Doctoral Thesis

open access

This study identifies the human rights of children who live in foster care due to a family supervision order, and analyses the extent to which Dutch laws and regulations protect these rights. The... Show moreThis study identifies the human rights of children who live in foster care due to a family supervision order, and analyses the extent to which Dutch laws and regulations protect these rights. The aim of the research is to provide insight into the rights of foster children regarding four important decisions about their lives. Although the interests of the child are often taken as a starting point for these decisions, this does not do justice to the recognition of children as subjects of rights. After all, individual interpretations of the best interests of the child will inevitably depend on the normative frameworks of the decision-maker. It is argued that by identifying which children's rights can be derived from a human rights framework, children in foster care can be given stronger protection when making decisions about their life. The study concludes that the literal text of Dutch laws and regulations does not usually conflict with children's and human rights. Yet in many cases, foster children have no effective means of invoking their rights. Therefore recommendations are being made to amend the law and regulations to better protect the rights of children in foster care. Show less

McGonagle, T.E. 2020

Free Expression and Internet Intermediaries: The Changing Geometry of European Regulation

Part of book or chapter of book

open access

This chapter explores ongoing shifts in the geometrical patterns of speech regulation in Europe. It first sets out the regulatory framework, which comprises an array of intertwined legally binding... Show moreThis chapter explores ongoing shifts in the geometrical patterns of speech regulation in Europe. It first sets out the regulatory framework, which comprises an array of intertwined legally binding and political standards adopted by the Council of Europe and the European Union. It then explains how this framework has given rise to, and indeed encouraged, particular geometrical patterns in European lawmaking and policymaking. Those patterns have been shaped by an awareness that the mass media have been powerful actors in public debate, and that their freedom must be safeguarded—within certain agreed limits. They also demonstrate a concern that regulation should not curb the development of new information and communications technologies and services and new markets for such technologies and services. The chapter's next focus is the recent and ongoing shift in existing regulatory patterns, which entails a significant move towards foisting greater liability and responsibility on internet intermediaries for illegal third party content hosted by them or distributed via their services or networks. There is an emergent preference for self-regulatory codes of conduct as a regulatory technique. However, as this chapter will argue, the relevant European codes of conduct are less voluntary than they may ostensibly seem as recent codes of conduct seem to have a coercive undertone. Show less

Lawson, R.A. 2020

A Living Instrument: The Evolutive Doctrine – some introductory remarks

Part of book or chapter of book

open access

Davidsen, M.A. 2019

Objectief, kritisch en pluralistisch?: Wat Nederland kan leren van het Noorse onderwijs over levensbeschouwing en religie

Article / Letter to editor

open access

Aagten, A.E.M.; Leijten, A.E.M.; Tan, F. 2019

Europese Mensenrechten

Article / Letter to editor

metadata only

Kroniek Europese mensenrechten, april 2018 - maart 2019

Tan, F. 2018

The Dawn of Article 18 ECHR: A Safeguard Against European Rule of Law Backsliding?

Article / Letter to editor

open access

This article examines an underexplored avenue for the protection of the rule of law in Europe: Article 18 of the European Convention on Human Rights. This provision prohibits States from... Show moreThis article examines an underexplored avenue for the protection of the rule of law in Europe: Article 18 of the European Convention on Human Rights. This provision prohibits States from restricting the rights enshrined in the European Convention for any other purpose than provided for in the Convention. In this contribution, the author argues, based on a combination of textual, systematic and purposive interpretations of Article 18, that the provision is meant to safeguard against rule of law backsliding, in particular because governmental restrictions of human rights under false pretenses present a clear danger to the principles of legality and the supremacy of law. Such limitations of rights under the guise of legitimate purposes go against the assumption of good faith underlying the Convention, which presupposes that all States share a common goal of reinforcing human rights and the rule of law. Article 18 could therefore function as an early warning that European States are at risk of becoming an illiberal democracy or even of reverting to totalitarianism and the destruction of the rule of law. The article then goes on to assess the extent to which the European Court’s case-law reflects and realizes this aim of rule of law protection, and finds that whereas the Court’s earlier case-law left very little room for an effective application of Article 18, the November 2017 Grand Chamber judgment in Merabishvili v. Georgia has made large strides in effectuating the provision’s raison d’être. As the article shows, however, even under this new interpretation, challenges remain. Show less

Waaldijk, C. 2018

Extending rights, responsibilities and status to same-sex families: trends across Europe

External research report

open access

This report is in part based on the author's comparative analysis of the LawsAndFamilies Database (www.LawsAndFamilies.eu) in his 2017 report More and more together: Legal family formats for same-sex and different-sex couples in European countries.The report notes clear and rapid trends, among a large majority of the 21 European countries surveyed, of offering same-sex couples the opportunity to formalise their relationship as marriage and/or as registered partnership, and of attaching more and more rights and responsibilities to the cohabitation, the registered partnership and/or the marriage of two people of the same sex. It concludes that the consensus among these countries is particularly strong as regards:

legal protections for times of death (such as: tenancy continuation, wrongful death compensation, inheritance, inheritance tax exemption, survivor’s pension);
legal protections for times of other great sadness (such as: next of kin provisions, protection against domestic violence, leave from work in case your partner or your partner’s parent is in need of care);
the right to come and live in the same country as your partner;
the possibility to take (at least some) responsibility for your partner’s children.

The high levels of consensus on these particular issues, may assist the European Court of Human Rights in narrowing the freedom that countries have had in deciding what rights and responsibilities to make available to same-sex couples.The report was written for the Council of Europe (at the initiative of its Sexual Orientation and Gender Identity Unit) for a conference (Copenhagen, 2 March 2018) on equal opportunities and rights in private and family life for lesbian, gay, bisexuals, transgender and intersex people. That conference was co-organised by the Danish Chairmanship of the Committee of Ministers of the Council of Europe, the Danish Parliament, and the Committee on Equality and Non-Discrimination of the Parliamentary Assembly of the Council of Europe. The latter Committee, in September 2018, referred to this report in its own report Private and family life: achieving equality regardless of sexual orientation, which on 10 October 2018 led to the adoption by the Parliamentary Assembly on of Resolution 2239(2018).

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Tan, F. 2018

ECtHR Ilgar Mammadov v. Azerbaijan (No. 2), 16 November 2017, no. 919/15

Annotation

closed access

Mačkić, J. 2017

Proving discriminatory violence at the European Court of Human Rights

Doctoral Thesis

open access

Prominent European institutions and organisations frequently report on the incidence of discriminatory violence, motivated on such grounds as colour, association with a national minority, religion... Show moreProminent European institutions and organisations frequently report on the incidence of discriminatory violence, motivated on such grounds as colour, association with a national minority, religion or sexual orientation, in various European States. This thesis explores the engagement of a fundamental European institution with the phenomenon of discriminatory violence, namely, the European Court of Human Rights. The main purpose of this thesis is to determine whether the evidentiary framework deployed by the European Court of Human Rights is adequate in discriminatory violence cases, and to offer suggestions for improvement where it is not. To reach that purpose, this study focuses on three evidentiary issues in cases of discriminatory violence. Firstly, it explores whether the Court’s application of the standard of proof ‘beyond reasonable doubt’ forms an obstacle in establishing the occurrence of discriminatory violence. Secondly, it explores the circumstances in which the burden of proof may shift from the applicant to the respondent State. Thirdly, the study looks at the types of evidentiary materials that may be used by the Court in order to establish discriminatory violence. Show less

Fabbrini, F.; Larik, J.E. 2016

The Past, Present and Future of the Relation between the European Court of Justice and the European Court of Human Rights

Article / Letter to editor

open access

Opinion 2/13, by which the CJEU declared incompatible with the EU treaties the long-negotiated draft agreement on EU accession to the ECHR, came as a shock to many observers. Yet, the relation... Show moreOpinion 2/13, by which the CJEU declared incompatible with the EU treaties the long-negotiated draft agreement on EU accession to the ECHR, came as a shock to many observers. Yet, the relation between the ECJ and the ECtHR has a glorious past, and can continue to have a bright future. While the dust kicked up by Opinion 2/13 settles, the article takes a step back and puts the ruling of the CJEU in a wider context. It recalls the long-standing historical relations between the CJEU and the ECtHR, and discusses the possible scenarios that may open up in the future. In particular, it claims that, even in the aftermath of Opinion 2/13, a virtuous competition between the CJEU and the ECtHR can have beneficial effect for the protection of fundamental rights, as evidenced by the case of judicial review of targeted UN sanctions. At a time of increasing frustration and preoccupation on the relation between the CJEU and the ECtHR, the article strikes a note of optimism, suggesting that the interaction between the two European supranational courts can still play a positive role for fundamental rights in Europe. Show less

Zago, G. 2015

A victory for Italian same-sex couples, a victory for European homosexuals? A commentary on Oliari v Italy

Website

open access

In Oliari and others v. Italy the European Court of Human rights established for the first time that the legislator’s failure to guarantee a legal framework recognizing non-marital same-sex... Show moreIn Oliari and others v. Italy the European Court of Human rights established for the first time that the legislator’s failure to guarantee a legal framework recognizing non-marital same-sex relationships constitutes a violation of the right to respect for private and family life under article 8 of the European Convention of Human Rights. This article aims to underline positives and negatives in judges’ reasoning. Particularly, it will be underlined the relevance of the judgment both as a critique on major contradictions characterizing Italian institutional debate around the issue of same-sex partnerships, and as a further step in the progressive application of article 8 ECHR to protect same-sex individuals committed in an intimate relationship. Such result is indeed achieved by referring expressly to the US Supreme Court judgment in Obergefell v. Hodges, which is uncommon for the Strasbourg Court and should not be overlooked for future cases.However, the article observes how the Chamber surprisingly failed ascertaining a possible violation of the right of private and family life in conjunction with the non-discrimination principle. This risks limiting the effects of its reasoning to the Italian situation only. Moreover, it is disappointing to notice that the European Court did not even examine Italy’s violation of the right to marry under art.12 of the Convention, and contrarily granted a wide margin of appreciation to the States. At present, same-sex marriage still remains “taboo” for the ECtHR. Show less

Houdijker, F.M.J. den 2012

Afweging van grondrechten in een veellagig rechtssysteem. De toepassing van het proportionaliteitsbeginsel in strikte zin door het EHRM en het HvJ EU

Doctoral Thesis

open access

Balancing nowadays seems to be omnipresent, in particular in the continental European fundamental rights discourse. The notion has also permeated the case-law of the two supranational courts on... Show moreBalancing nowadays seems to be omnipresent, in particular in the continental European fundamental rights discourse. The notion has also permeated the case-law of the two supranational courts on which this study focuses: the European Court of Human Rights and the Court of Justice of the European Union. In a reaction to the growing critique on both Courts for a lack of clarity of their rulings, especially those rulings in which they rely on balancing, this study aims at answering the question whether the Courts__ frequent references to the notion of balancing contribute to the intelligibility and transparency of their decisions in cases concerning conflicts of fundamental rights and/or interests. In order to do so, this study combines a legal-theoretical research into balancing with an analysis of the __balancing case-law__ of the two European Courts. The legal-theoretical research leads to an __ideal type__ of balancing that provides a yardstick for the evaluation of the balancing case-law of the Courts. As it is found that the rulings of both Courts can be improved with regard to the application of the notion of balancing, proposals are made to improve the Strasbourg and Luxembourg balancing practices. When doing so, the study pays heed to the challenges the Courts face as a result of the multi-levelness of the European system of fundamental rights protection. Show less

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