Article

Protocol 15 and Articles 10 & 11 ECHR - the partial triumph of political incumbency post Brighton

Authors:
To read the full-text of this research, you can request a copy directly from the author.

Abstract

Protocol 15 inserts a new recital into the Preamble of the European Convention on Human Rights (ECHR) which affirms the primacy of national authorities in securing the effective realisation of Convention rights. As such it states a particular ordering of political and legal power between a central authority in the system of rights protection (the Court) and its member units (State legislatures and courts).The Protocol ‘s origins are to be found in the Brighton Declaration (2012) The following discussion takes as its frame of reference Article 10 jurisprudence of the Court as it touches upon political expression. The first section of materials sets the overall context for Protocol 15 by reference to the Brighton Declaration and the background concerns of certain Council of Europe States as well as the draft Copenhagen Declaration (2018). Then attention is devoted to the questions of democratic principle that are engaged by Protocol 15. Does greater deference to national decision-making threaten open channels of political participation? The final part of the discussion looks to the ‘post Brighton/Protocol 15 pre-entry’ period. The new argument that is made here suggests that a selective retreat away from substantive supranational review towards systemic supranational review in political expression cases may be occurring. Newer and transitional democracies remain subject to fairly strict levels of supranational scrutiny whilst their more established counterparts possessing well-established mechanisms of internal independent rights review look to be the main beneficiaries. Whilst such an emerging pattern may make intuitive sense, the discussion below questions whether it is in fact entirely problem free.

No full-text available

Request Full-text Paper PDF

To read the full-text of this research,
you can request a copy directly from the author.

... The judge's decision ignored the fact that the risk assessment by the police turned out to be unfounded); the Pentikäinen GC judgment (n 15), para 114 (containing the 'Overall conclusion'), has no mention of the concept of 'pressing social need'. 82 expression, association and related privacy concerns of citizens and political associations).' 84 Arguably, journalistic newsgathering for press reporting falls squarely into this category. 85 The awareness of the importance of journalistic newsgathering and press rights at public events, such as demonstrations, can be stimulated by reiterating the principle of strict scrutiny, as in the Pentikäinen GC judgment, 86 the Selmani a.o. ...
Article
Full-text available
In a group of cases in which journalists refused dispersal orders at public assemblies, the European Court of Human Rights (ECtHR) found that certain governmental actions interfered with freedom of expression. Based on a doctrinal and conceptual comparative analysis, this article examines this case law about the national police or security personnel wielding governmental power against journalists engaged in nonviolent methods of information-gathering at public events and assemblies within a protest context. It looks into the suitability of national statutory Police Acts and Criminal Law for protecting the rights of journalists who cover public events and demonstrations, in view of this group of cases. It provides an analytical critique of the case law of the ECtHR; especially considering the consequences of the approach taken in its Pentikäinen-judgment. It explains how Human Rights should prevent arrests/prosecutions of journalists who cover demonstrations and other public events in a professional capacity; an issue that seems a longstanding and ongoing challenge. Keywords: Freedom of Journalism, Article 10 ECHR, interference, justification, risk assessment, protests and assemblies, newsgathering, press freedom, media freedom
... 1888 Ian Cram has recently made a similar point even more explicitly: arguing against the ECtHR's use of the rein effect of consensus in Animal Defenders International v. the United Kingdom, based on a lack of consensus in the area of paid political advertising, 1889 he holds that "the very lack of consensus on politi-cal advertising could have been deployed as the basis of a proportionality argument against the UK's position by evidencing that other 'well-functioning' democracies in Europe had managed to uphold the integrity of their political systems without resort to such draconian bans on political expression". 1890 This way of using vertically comparative reasoning is helpful in that it problematises the stark distinction between the rein effect and the spur effect by inverting the usual consequences of lack of consensus, and thus alerts us to the possibility of using vertically comparative law in ways which go beyond (and indeed stand in contrast to) European consensus. I would sound two notes of caution with regard to the examples just cited, however. ...
Chapter
Full-text available
This study offers a critical account of the reasoning employed by the European Court of Human Rights, particularly its references to European consensus. Based on an in-depth analysis of the Court’s case-law against the backdrop of human rights theory, it will be of interest to both practitioners and theorists. While European consensus is often understood as providing an objective benchmark within the Court’s reasoning, this study argues to the contrary that it forms part of the very structures of argument that render human rights law indeterminate. It suggests that foregrounding consensus and the Court’s legitimacy serves to entrench the status quo and puts forward novel ways of approaching human rights to enable social transformation.
Article
Full-text available
The European Court of Human Rights has long been cast as a defender of democracy in Europe. Yet, this idea has not always been at the core of the Court’s perception in the literature or indeed aligned with its jurisprudence which are often viewed in more Dworkinian terms. We suggest that there are good reasons, however, to take this idea more seriously in line with some of the early discussions on the function of the Convention. We argue that a good way to flesh out this idea is by drawing on the recent discussion on comparative representation reinforcement, sometimes labelled comparative political process theory, which builds on earlier work by US constitutional theorist John Hart Ely. Such an – expanded and updated – Elyian approach, we believe, has much to offer not just for domestic constitutional courts around the globe, but also for a supranational human rights court such as the ECtHR. We spell out what this might mean for the Court’s jurisprudence with reference to a few key areas of jurisprudence and the protection of minority rights in particular and sketch some implications for when to exercise restraint and when to intervene in a robust manner.
Article
Avrupa İnsan Hakları Mahkemesi’nin reform süreci Mahkeme’nin iş yükünün artması ve bu iş yükü sebebiyle etkililiğinin zarar görmesi endişesi ile başlatılmıştır. Mahkeme’nin geleceğine dair tartışma ve çalışmaların yapıldığı, koruma mekanizmasının etkililiğinin korunması ve sürdürülmesi amacının ürünü olan reform süreci, bir dizi Sözleşme’ye ek protokolün kabulü ve Üst Düzey Konferans düzenlenmesinden oluşan bir süreçtir ve halen devam eden dinamik bir yapıdadır. Çalışmamızda, reform süreci hakkında bilgi verildikten sonra, 11,14,15 ve 16 no’lu protokoller ve getirileri incelenecektir. Reform sürecinin diğer unsuru olan Üst Düzey Konferanslar ve bu konferanslar sonunda yayınlanan deklarasyonlara değinilerek, Konferansların çıktılarının neler olduğu üzerinde durulacaktır.
Chapter
Full-text available
This study offers a critical account of the reasoning employed by the European Court of Human Rights, particularly its references to European consensus. Based on an in-depth analysis of the Court’s case-law against the backdrop of human rights theory, it will be of interest to both practitioners and theorists. While European consensus is often understood as providing an objective benchmark within the Court’s reasoning, this study argues to the contrary that it forms part of the very structures of argument that render human rights law indeterminate. It suggests that foregrounding consensus and the Court’s legitimacy serves to entrench the status quo and puts forward novel ways of approaching human rights to enable social transformation.
Book
Full-text available
Cambridge Core - Human Rights - Demanding Rights - by Moritz Baumgärtel
Article
This article takes its title from Lord Rodger's oft cited dictum in Secretary of State for the Home Department v AF (No 3): ‘Argentoratum locutum: iudicium finitum – Strasbourg has spoken, the case is closed’. The article focuses upon the following two questions: What should be the approach of the Supreme Court of the United Kingdom to interpretations of the European Convention on Human Rights by the Strasbourg Court and what should be the approach of the Strasbourg Court to the decisions of the highest courts in member states? On the first question, the ‘mirror’ approach and criticisms of it are considered and examples are given of the Supreme Court following its own, rather than a pan-European, approach. On the second question, the view of the new president of the Strasbourg Court is welcomed.
Article
This Article documents the patterns of judicial divergence in the area of non-derogable rights. It examines the increased conservatism of the European Court of Human Rights relative to other international bodies in one specific area; the interpretation and protection of human rights violations in situations of emergency. This Article explores the responses of international courts and tribunals to situations where states have limited the exercise of their citizens' rights as a result of political crisis. These limitations are examined in relation to the agreed obligations of states to protect rights when they sign human rights treaties. Part I looks at the pivotal role of the European Court and Commission of Human Rights. Case by case analysis reveals that both institutions have developed state focused doctrines at the expense of protecting individual rights. Part II recounts how the Inter-American Court, in its short history, has shown greater willingness to confront state violations of rights in situations of political instability where the state argues that it is justified by the crisis in limiting its international obligations. Part II also examines the multi-layered thinking of the Court, its mechanisms for interlinking different rights as a means of compounding protection for the individual citizen. Part III looks at the Human Rights Committee of the United Nations. Part III suggests that, despite its burden of inter-state political wrangling and its disadvantages of limited procedural accessibility, it has functioned reasonably well in confronting state obligations in situations of emergency. This Article concludes that more attention must be paid to the similarities and differences in jurisprudence emerging from different international tribunals. Equally, it strongly re-enforces the dangers of failing to pay due regard to the political leanings of judges monitoring state obligations in international courts. Ultimately, it points to the danger of assuming that a vision of universal human rights goals will be realized without active oversight of the judicial branch.
Article
Status of the European Convention on Human Rights in German domestic law—the right to respect for one's family life—custody and access of a father to his child born out of wedlock and adopted by another family—domestic effect of judgments of the European Court of Human Rights—constitutional complaint based on alleged violation of the European Convention on Human Rights.
Article
The doctrine of the margin of appreciation that the European Court of Human Rights has developed in its case law has given rise to considerable criticism. In this article I draw a distinction between two different ways in which the Court has used the doctrine. The first one is in cases where the Court has to decide whether a particular interference with a Convention freedom is justified. In answering that question, the Court often uses the label ‘margin of appreciation’ without drawing on a substantive theory of rights that can justify the conclusion reached. The second use appears in cases where the Court refrains explicitly from employing a substantive test of human rights review on the basis that there is no consensus among Contracting States on the legal issue before it. My aim is to highlight the principles that can be used to justify each use of the doctrine, by locating human rights within broader issues in moral and political philosophy. Particular emphasis is placed on the distinction between reason-blocking and interest-based theories of rights as well as on the nature of the duties of the European Court, as a matter of international human rights law.
Article
Competitive elections are the minimal essential element of democratic systems. They promote broad public debate, stimulate voter participation, and are the central means by which voters hold officeholders accountable. Yet as is now widely recognized, such elections are in decline in the United States, due in part to the intentional and systematic creation of artificially safe election districts. This article provides a constitutional framework for responding to this problem. In recent years, the Supreme Court has more aggressively enforced constitutional limitations on the scope of Congress's enumerated powers. In the same way, the Court has begun to enforce limits on the Art. I, Sec. 4 power of state legislatures to set the ground rules for congressional elections. Art. 1, Sec. 4 is the only source of constitutional power states have to regulate national elections. But just as Congress' powers under Art. I are limited to the scope and purposes for which granted, the Art. I enumerated power does not authorize state legislatures to design congressional districts with the systematic and intentional aim and effect of creating artificially non-competitive election districts. Not all election districts can be made competitive, nor is competitiveness the only relevant democratic and constitutional value. But state legislative manipulation of congressional districts that intentionally and systematically aims to create overwhelmingly safe election districts is not within the purposes or scope of the power Art. I grants. More generally, Art. I is an important source of limitation on the ability of states to manipulate national elections.
Universality versus Subsidiarity in the Strasbourg Case Law on Free Speech: Explaining Some Recent Judgments
  • P Mahoney
Universality versus Subsidiarity: A Reply
  • Lester
Marvellous Richness of Diversity
  • Mahoney
Proportional Voting through the Elections Clause: Protecting Voting Rights Post-Shelby County
  • Johnson
The Draft Copenhagen Declaration: Whose Responsibility and Dialogue?
  • Ulfstein
At a Crossroads: Russia and the ECHR in the Aftermath of Markin’ Verfassungsblog
  • Levin
67 See on this point the dissenting opinion of Judge Tulkens (joined by Judges Spielmann and Laffranque) para 16. A separate set of dissenting judgments was jointly authored by Judges Ziemele
  • De Gaetano
8 For a classic statement of this argument, see
  • J Ely
  • Hart
EHRR 212-No violation of artist's or gallery owner's freedom of expression after conviction under Swiss obscenity laws for exhibiting paintings depicting sexual relations between men and animals
  • Müller V Switzerland
App No 32772/02, Judgment of
  • Vgt V Switzerland
One Man Banned: Russia's Treatment of Solo Protests Scrutinised in Novikova v Russia’ Strasbourg Observers
  • O Novikova
  • Thers V Russia
Reconfiguring the Dscourse on Political Responses to Declarations of Incompatibility
  • C Chandrachud