scholarly journals Excavating Landmarks—Empirical Contributions to Doctrinal Analysis

2019 ◽  
Vol 32 (2) ◽  
pp. 221-252
Author(s):  
Stefan Theil

Abstract The idea of landmark cases is ubiquitous in legal scholarship and adjudication. Both scholars who rely on ‘landmark’ cases and those who avoid the label often focus too much attention on a small sample of individual cases when researching legal doctrine. This risks missing important cases and pieces of the doctrinal picture. The article proposes an updated methodology that returns ‘to the basics’ of doctrinal scholarship, but with an empirical twist enabled through modern database technology. The approach is exemplified through the case study of López Ostra v Spain, a well-known environmental human rights decision under the European Convention on Human Rights. Based on a comprehensive data set of all environmental decisions, the article argues that the ‘landmark’ status of López Ostra is less empirically and doctrinally clear than conventionally accepted in legal scholarship.

2017 ◽  
Vol 64 (1) ◽  
pp. 56-61 ◽  
Author(s):  
Summer Alston-Smith

Marie Hutton’s 2016 article, ‘Visiting Time: A Tale of Two Prisons’, compares the visiting experience across two male prison establishments and examines whether Article 8 of the European Convention on Human Rights – the right to ‘private and family life’ – was respected in the visitation process. This article seeks to compare the conclusions of this relatively small sample base to the wider prison system including female and young offender establishments, lending a national and political context.


2020 ◽  
Vol 4 (1) ◽  
pp. 9
Author(s):  
Arbnor Ajet Ajeti

The purpose of this scientific paper is to handle in detail the main issues concerning the right to use legal remedies by the parties against court decisions. The right to use legal remedies against court decisions is recognized as one of the fundamental rights of litigants in the civil contested procedure. Due to the importance of using legal remedies in this procedure and other court proceedings, the right to use legal remedies is also foreseen by legal acts. We emphasize this because the right to use legal remedies is guaranteed by the Universal Declaration of Human Rights of 1948, by the European Convention on Human Rights of 1950. Also, the right to use legal remedies is guaranteed through the Constitution of the Republic of Kosovo of 2008 as one of the fundamental human rights. In contrast, the procedure, according to appealing means, has been regulated by the Law on Contested Procedure of Kosovo 2008. The main idea of this scientific paper is to clarify the right of parties to use legal remedies and what are legal remedies to this procedure. The results of handling consist of understanding the importance of legal remedies, in which cases legal remedies may be submitted, and their impact in exercising the right of litigants in order to provide protection to the legal interests of the parties. In this scientific paper have been conducted handlings concerning the right to use legal remedies, types of appealing means, ordinary legal remedies, and extraordinary legal remedies. This scientific paper is based on applicable legislation, judicial practice, and legal doctrine. In this paper are also given conclusions regarding the right to use legal remedies against court decisions in the contested procedure.


Author(s):  
Javier García Roca

Asistimos a un proceso de influencia recíproca sobre derechos entre altos tribunales. Distintas jurisdicciones —ordinaria, constitucional, convencional y de la Unión— concurren al servicio de la integración europea mediante la garantía efectiva de unos derechos comunes y vienen obligadas a elaborar interpretaciones compatibles. Los derechos fundamentales son un ingrediente de un orden público democrático y el CEDH opera como un instrumento constitucional al servicio de ese orden. La idea de diálogo judicial es un instrumento flexible y ambiguo, y, precisamente por ello, muy útil para organizar un trabajo en red en este escenario de pluralismo constitucional. Si bien no es claro qué quiere decirse con «diálogo», puede que de esta ambigüedad sea mejor no salir dado el amplio círculo de los destinatarios. Los tribunales constitucionales deben actuar como interlocutores del TEDH y, al tiempo, como mediadores, divulgando la jurisprudencia europea y haciéndola compatible con las jurisprudencias constitucionales mediante una interpretación conforme. Sería muy conveniente acomodar los parámetros constitucionales de derechos, mediante su reforma, al mínimo que entraña el sistema del Convenio. Debemos explicar con mayor profundidad las diversas relaciones que se engloban bajo la inclusiva denominación de diálogo.We are witnessing a process of influence and cross-fertilization in human rights between high courts. Several jurisdictions —domestic, constitutional, European Court and Court of Justice— cooperate in European integration in order to achieve collective enforcement of rights and therefore compatible interpretationsmust be constructed. Fundamental rights are an ingredient of a European and democratic public order, and the European Convention on Human Rights must work as a constitutional instrument of this order. The idea of judicial dialogue is such a flexible and ambiguous device that it becomes very useful for organizing a network in this scenario of constitutional pluralism. Nevertheless it is not at all clear what the expression «dialogue » means, however it is probably better not to go very much into detail because of the wide number of member States which have to understand it. Constitutional Courts should act as partners of the European Court of Human Rights and also as mediators, spreading European legal doctrine and making it compatible with their own constitutional doctrines by means of an interpretation secundum conventionem. It would be convenient to reform constitutional parameters in order to harmonize their internal standards with the system of the Convention. But we should go further and explain in detail the different relationships which are included under the word «dialogue».


2007 ◽  
Vol 40 (2) ◽  
pp. 527-562 ◽  
Author(s):  
Dominic McGoldrick

This article considers how arguments relating to the principle of joint applicability of international human rights law (IHR) and international humanitarian law (IHL) are playing out in the United Kingdom's courts. The core of the article is a case study of the decisions of the Divisional Court, the Court of Appeal and the House of Lords in Al-Skeini v. Secretary of State for Defence. The central issues of the case concerned the application of the UK's European Convention on Human Rights (ECHR) obligations in the context of its activities in Iraq, and the extraterritorial application of the Human Rights Act, 1998. This case study of the domestic application of the principle is particularly useful for considering (i) its practical implications on the specific facts of particular cases; (ii) the argumentation used by the UK government and judges; (iii) the difficulties of national courts in analyzing the IHR and IHL rights jurisprudence; and (iv) the significant differences between IHR and IHL in terms of positive obligations and domestic remedies.


2007 ◽  
Vol 9 ◽  
pp. 1-42 ◽  
Author(s):  
Nicholas Bamforth

Both EU law and the European Convention on Human Rights contain protections against invidious forms of discrimination. EU law has long been concerned to combat discrimination on the grounds of sex and nationality, and has more recently begun to tackle discrimination on the bases of race, sexual orientation, age, religion or belief and disability. Article 14 of the Convention is also concerned with these grounds—some explicitly, some through judicial interpretation—as well as others such as birth status. However, at a level of detail the two bodies of law differ in many ways: for example, in the contexts in which they apply, in their treatment of justifications for prima facie acts of discrimination, and in the extent to which direct and indirect discrimination are prohibited. It is thus a matter for debate how far they in fact overlap, or have the potential to do so. Furthermore, given that it is a shared concern of EU law and the Convention to combat invidious forms of discrimination, their respective anti-discrimination protections might be felt to provide a particularly strong illustration of the extent to which there are similarities and divergences between the two bodies of law. In this sense, anti-discrimination law offers an illuminating case study of the intersections and differences between the two bodies of ‘European’ law, both at European level and within the domestic legal systems of EU Member States.


2019 ◽  
Vol 1 (2) ◽  
pp. 263-282
Author(s):  
Louise Reyntjens

In response to Islamic-inspired terrorism and the growing trend of foreign fighters, European governments are increasingly relying on citizenship deprivation as a security tool. This paper will focus on the question of how the fundamental rights of individuals deprived of their citizenship are affected and which protection is offered for them by the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’). In many countries, these new and broader deprivation powers were left unaccompanied by stronger (procedural) safeguards that protect the human rights they might affect. Unlike the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights, the ECHR does not provide for an explicit right to citizenship. The question therefore rises what protection, if any, is offered by the ECHRsystem against citizenship deprivation and for the right to citizenship. Through a case study of the Belgian measure of citizenship deprivation, the (implicit) protection provided by the Convention-system is demonstrated.


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