This chapter takes a closer look at the productive partnership between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) and asks whether the existing... Show moreThis chapter takes a closer look at the productive partnership between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) and asks whether the existing legal framework guarantees the endurance of the cooperative dialogue between both courts. First, it summarizes the ground rules of their symbiosis, going over the status of the European Convention on Human Rights in EU law and the ECtHR’s recognition of the EU’s legal personality. Then, it briefly addresses the impact of the CJEU's Opinion 2/13 on the EU’s accession to the Convention before exploring, in section 3, the many forms that the judicial dialogue between the CJEU and the ECtHR has taken over the years and discussing the influence of the jurisprudence of one over the other. A final part asks whether it is possible to move beyond labels of comity and identify a legal duty for both courts to cooperate. Show less
This thesis examines the legal responsibility for human rights violations that may occur in the context of border control or return operations coordinated by the EU agency Frontex. Imagine,... Show moreThis thesis examines the legal responsibility for human rights violations that may occur in the context of border control or return operations coordinated by the EU agency Frontex. Imagine, for example, that during a border control operation at sea, a vessel forces a boat carrying migrants back to its place of origin, which may be in violation of the rights of persons on that boat. The operation is hosted by State A, coordinated and financed by Frontex, but the vessel in question is from State B. The contributions by State A, B, and by Frontex to the violation vary in nature and degree. But which contribution leads to legal responsibility? The thesis concludes that direct responsibility typically lies with the host state. In addition, participating states who contribute large assets and Frontex will often incur responsibility together with the host state, predominantly on the basis of their obligations to protect or supervise. However, the study also exposes just how difficult it may be for individuals to find a place for bringing complaints against violations of their human rights suffered at the EU’s external borders. This casts doubts on whether the current legal framework offers them an effective remedy. Show less
In het EVRM vinden we expliciete procedurele rechten als het recht op een eerlijk proces (artikel 6) en het recht op een effectief rechtsmiddel (artikel 13). Steeds vaker ontleent het EHRM ook... Show moreIn het EVRM vinden we expliciete procedurele rechten als het recht op een eerlijk proces (artikel 6) en het recht op een effectief rechtsmiddel (artikel 13). Steeds vaker ontleent het EHRM ook procedurele waarborgen aan de verdragsrechten die op het eerste gezicht materieel van aard zijn. Het is van groot belang om op de hoogte te zijn van deze extra verplichtingen. In dit proefschrift worden de procedurele positieve verplichtingen volgend uit het recht op leven (artikel 2), het folterverbod (artikel 3), het recht op privé- en familieleven (artikel 8) en het eigendomsrecht (artikel 1 EP) in kaart gebracht. De nadruk ligt op de verplichtingen voor het (bijzonder) bestuursrecht. Bovendien wordt in deze studie gekeken in hoeverre de procedurele verplichtingen volgend uit deze materiële EVRM-rechten van toegevoegde waarde zijn ten opzichte van de procedurele eisen van de artikelen 6 en 13 EVRM. Daarnaast wordt in deze studie bezien of uit de toetsingspraktijk van het EHRM zelf nadere (indirecte) procedurele verplichtingen zijn af te leiden die in nationale procedures in acht moeten worden genomen. Dit onderzoek levert handvatten op die de nationale autoriteiten (bestuur en rechter) beter in staat stellen om EVRM-conforme nationale procedures in te richten en zo EVRM-schendingen te voorkomen. Show less
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
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
The ECtHR needs to provide effective rights protection, but it also needs to set clear standards while showing deference to decisions made at the national level. Especially when socio-economic... Show moreThe ECtHR needs to provide effective rights protection, but it also needs to set clear standards while showing deference to decisions made at the national level. Especially when socio-economic issues are concerned, meeting these different demands is a challenging task. The thesis explores the possible use and added value of the notion of ‘core rights’ for the reasoning of the ECtHR in socio-economic cases. By means of a comparative study of the German Wesensgehaltsgarantie, the minimum core obligations related to the ICESCR, and the debate on the use of core rights for the protection of socio-economic rights under the South African Constitution, insights are gained on the possibilities and pitfalls inherent in this idea. On the basis thereof, a ‘core rights perspective’ is outlined that is tailored to the protection of socio-economic interests by the ECtHR. It is argued that this perspective allows the ECtHR to develop a principled approach to (positive) socio-economic claims that is characterised by a clear demarcation of the scope of the Convention and a focus on minimum guarantees. In this way the core rights perspective may help the ECtHR in leaving the necessary room for national laws and policies while ensuring robust socio-economic protection. Show less
Adequate and fair asylum procedures are a precondition for the effective exercise of rights granted to asylum applicants, in particular the right not be expelled to a country where they face the... Show moreAdequate and fair asylum procedures are a precondition for the effective exercise of rights granted to asylum applicants, in particular the right not be expelled to a country where they face the risk of being subjected to human rights violations. In 1999 the EU Member States decided to work towards a Common European Asylum System. In this context the Procedures Directive was adopted in 2005. This directive provides for important procedural guarantees for asylum applicants, but also leaves much discretion to the EU Member States to design their asylum procedures. An important result of the adoption of the Procedures Directive is that asylum procedures now fall within the reach of the Charter and general principles of EU law. This book examines the meaning of the EU right to an effective remedy for the legality and the interpretation of the Procedures Directive. For this purpose the EU Courts' case-law on the EU right to an effective remedy is examined. The interpretation of the EU right to an effective remedy is inspired by international law. Therefore this book also extensively discusses the ECtHR's case-law as well as the views of the UNHCR and UN Committees concerning procedural rights for asylum applicants. The result of this exercise is a set of procedural standards with regard to several key issues of asylum procedures: the right to remain on the territory of the Member State, the right to be heard, the standard and burden of proof and evidentiary assessment, judicial review of the establishment and qualification of the facts and the use of secret evidence. Show less
The fight against torture and inhuman or degrading treatment or punishment is of fundamental importance, which has been broadly acknowledged, and resulted in different ways to pursue the... Show moreThe fight against torture and inhuman or degrading treatment or punishment is of fundamental importance, which has been broadly acknowledged, and resulted in different ways to pursue the effectuation of this prohibition. The coexistence of multiple monitoring mechanisms in the same field can raise important questions concerning overlap, collision and alignment. The subject of this study relates to the coexistence of the European Court of Human Rights (ECtHR) and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and focuses on the relation between these bodies from an organisational, terminological and normative perspective. It concentrates on answering the question how the relationship between the ECtHR and the CPT can be described and whether the current status between these bodies contributes to an effective and efficient protection of detainees against torture and inhuman or degrading treatment or punishment. Show less
The thesis deals with the history of terrorism and counter-terrorism legislation, focussing on the legislation in the UK, Spain, Germany and France, in the last 30 years, and analysing its... Show moreThe thesis deals with the history of terrorism and counter-terrorism legislation, focussing on the legislation in the UK, Spain, Germany and France, in the last 30 years, and analysing its compatibility with national and European human rights standards. Show less
The loss of one’s house is often one of the most dramatic personal consequences of armed conflict. In fragile post-conflict societies such a loss does not only cause a flow of refugees and other... Show moreThe loss of one’s house is often one of the most dramatic personal consequences of armed conflict. In fragile post-conflict societies such a loss does not only cause a flow of refugees and other displaced persons, but it can also be a source of renewed conflict. Restitution of housing could help to solve these problems and thus help to attain peace and to rebuild the rule of law. This study focuses on the legal aspects of restitution. Its purpose is to identify the stumbling blocks which in many cases hamper restitution. Thus, the main research question is how the right to housing and property restitution for refugees and other displaced persons can be secured more effectively in European post-conflict situations. The study is structured around three requirements for the effectiveness of a legal norm: its normative clarity, the operational framework which supports the norm, and the political will or consensus, among the main actors involved, to implement the norm. Throughout, the main perspective is the European Convention on Human Rights within the broader context of public international law and human rights law. First, the issue of the existence and content of a right to housing restitution is elaborated upon. Secondly, specific challenges in the institutional sphere are addressed. Thirdly, the research focuses on the application of housing restitution in practice, by way of a case study. It analyses how restitution was implemented in Bosnia and Herzegovina in the wake of the 1995 Dayton Peace Agreement. The study concludes with a set of specific recommendations for the effective implementation of the right to housing restitution in post-conflict states. Show less
This book deals with the collision of two fundamental rights within the European legal order: the right to access to documents and the right to data protection. If a document which is kept by one... Show moreThis book deals with the collision of two fundamental rights within the European legal order: the right to access to documents and the right to data protection. If a document which is kept by one of the European Union institutions contains personal data the two right collide. Although this possible collision is apparent, it is not sufficiently addressed in the two regulations in which both rights are further elaborated (Regulation 1049/2001 and Regulation 45/2001). After an analysis of legal developments within the EU, case law of the European Court of Human Rights and the relevant national legislation of the 27 Member States, the author presents his views on how the balance between the two rights should be struck. This leads to a concrete proposal for amending both regulations. Show less
