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Monique Anderson PhD
Monique Anderson, PhD Researcher, Leuven Institute of Criminology, Catholic University of Leuven, Leuven, Belgium. Contact author: monique.anderson@kuleuven.be.

Carolyn Hoyle
Carolyn Hoyle is Professor of Criminology, University of Oxford (UK).

Diana Batchelor
Diana Batchelor is a DPhil candidate, Centre for Criminology, University of Oxford (UK). Contact author: carolyn.hoyle@crim.ox.ac.uk.
Article

The European Court of Human Rights in the States of the Former Yugoslavia

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Ex-Yugoslavia, European Court of Human Rights, domestic implementation, the rule of law, human rights
Authors Jernej Letnar Černič
AbstractAuthor's information

    The countries of the former Yugoslavia have in past decades failed to fully meet both the challenges of the socio-economic environment and of the full-fledged functioning of the rule of law and the protection of human rights. Their development was in the first decade halted by the inter-ethnic wars, while in the second decade their institutions have been hijacked by various populist interest groups. All the countries of the former Yugoslavia have been so far facing a constant crisis of liberal democratic institutions of the modern state, based on the rule of law. Only a small number of them have decided to accept effective measures to break away from such crises. In order to present the problems of the newly established democracies in the former Yugoslavia, this article presents and analyses the contributions of the European Court of Human Rights to establishing the rule of law and effective human rights protection in Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia. In the closing part of the article, conclusions are drawn on how those countries should proceed to internalize the values of human rights protections in liberal democracies.


Jernej Letnar Černič
Associate Professor, Graduate School of Government and European Studies, Nova Univerza, Ljubljana, Slovenia.
Human Rights Practice Review

Hungary

Journal East European Yearbook on Human Rights, Issue 1 2018
Authors Kriszta Kovács LLM, PhD
Author's information

Kriszta Kovács LLM, PhD
LLM, PhD in Law, associate professor at ELTE University Faculty of Social Sciences, Senior Researcher at WZB Berlin Center for Global Constitutionalism.
Human Rights Literature Review

Poland

Journal East European Yearbook on Human Rights, Issue 1 2018
Authors Vita Zagórowska and Jakub Czepek
Author's information

Vita Zagórowska
Vita Zagórowska, University of Warsaw, Faculty of Law and Administration, Institute of International Law, Department of International Public Law.

Jakub Czepek
Jakub Czepek, Cardinal Stefan Wyszyński University in Warsaw, Faculty of Law and Administration, Institute of International Law, European Union and International Relations, Department of Human Rights Protection and International Humanitarian Law.
Article

Regional Judicial and Non-judicial Bodies

An Effective Means for Protecting Human Rights?

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Direct access, human rights protection, judicial bodies, non-judicial bodies, direct access of individuals
Authors Ján Klučka
AbstractAuthor's information

    Regional human rights systems consisting of regional bodies, instruments and mechanisms play an important role in the promotion and protection of human rights. If one’s rights are not protected on the domestic level, the international system comes into play and protection can be provided either by the regional or global (UN) system. Regional mechanisms of human rights today cover five parts of the world, namely: Africa, the Americas, Europe, Arab countries and the Asia-Pacific. They differ in their origin, resulting from different concepts of human rights and the need of interested states to establish a regional framework for human rights protection. The level and scope of their human rights protection is obviously uneven, although this protection is generally higher in regions with democratic states that have constitutional and rule of law regimes in which human rights are considered an integral part of their constitutional architecture. However, current practice confirms that the creation of judicial systems for the protection of human rights within the context of concrete regions does not automatically guarantee the right of direct access of individuals to them. The regional particularities of locus standi result from a set of factors having historic, religious, ethnic and other nature. In the institutional system of protection of human rights, these particularities manifest also through the optional (non-compulsory) jurisdiction of regional judicial bodies, the preventive ‘filtering’ systems before non-judicial bodies (commissions) combined with the right to bring the case before a judicial body, the systems where different entities are entitled to bring the case before a judicial body but the individual has no such right etc. Nevertheless, the existing practice generally confirms the increasing role of the judicial segment of the regional human rights systems as well as the strengthening of position of individuals within the proceedings before regional human rights judicial and non-judicial bodies. A specific factor in the developing world represents the concept of a ‘strict’ interpretation of sovereignty preventing external control of the respect for human rights before a regional judicial body on the basis of an individual complaint by a concerned person. The specificities of regional systems are without detriment to their widely accepted advantages and benefits. Regional systems allow for the possibility of regional values to be taken into account when human rights norms are defined (e.g. so-called collective rights and duties within the African system), provided that the idea of the universality of human rights is not compromised. The regional systems are located closer to the individual human rights subjects and offer a more accessible forum in which individuals can pursue their cases, and states tend to show stronger political will to conform to decisions of regional human rights bodies. The existence of the regional human rights systems finally allows for the existence of proper enforcement mechanisms, which can better reflect local conditions than a global (universal) system of enforcement.


Ján Klučka
Professor of International Law, Institute of International and European Law, Law Faculty, University P.J. Šafárik, Košice, Slovakia.
Human Rights Practice Review

Serbia

Journal East European Yearbook on Human Rights, Issue 1 2018
Authors Jelena Simić
Author's information

Jelena Simić
Jelena Simić is assistant professor, Union University Law School (Belgrade).
Article

The European Court of Human Rights and the Central and Eastern European States

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Case law regarding Central and Eastern Europe, ECHR, human rights, reform, European system of Human Rights
Authors András Baka
AbstractAuthor's information

    At the time of its creation and during the following 30 years, the European Court of Human Rights was a Western European institution. It was not until the sweeping political changes in 1989-1990 that the Central and Eastern European countries could join the European system of individual human rights protection. The massive and relatively rapid movement of accession of the ‘new states’ to the European Convention on Human Rights had a twofold effect. On the one hand it led to a complete reform of the human rights machinery of the Council of Europe, changing the structure and the procedure. A new, permanent and more efficient system emerged. What is even more important, the Court has had to deal with not only the traditional questions of individual human rights but under the Convention new issues were coming to the Court from applicants of the former eastern-bloc countries. On the other hand, being part of the European human rights mechanism, these countries got a chance to establish or re-establish the rule of law, they got support, legal standards and guidance on how to respect and protect individual human rights. The article addresses some of these elements. It also points out that public hopes and expectations towards the Court – especially nowadays in respect of certain countries – are sometimes too high. The Court has its limits. It has been designed to remedy certain individual injustices of democratic states following common values but cannot alone substitute seriously weakened democratic statehood.


András Baka
Former judge of the ECtHR (1991-2008); former president of the Hungarian Supreme Court.
Article

Politics and Pragmatism

The Constitutional Court of the Russian Federation and Its 20 Years of Engagement with the European Convention on Human Rights

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Constitutional Court of the Russian Federation, European Court of Human Rights, Russia
Authors Bill Bowring
AbstractAuthor's information

    After the highly controversial YUKOS judgment of 19 January 2017, on 23 May 2017 the Constitutional Court of the Russian Federation (CCRF) delivered a warmly received judgment, in which the provisions of the administrative offences legislation prohibiting stateless persons to challenge the reasonableness of their detention in special detention facilities was found to be unconstitutional. The CCRF was addressed by leading Russian human rights advocates. The judgment referred not only to Article 22 of the Russian Constitution but also to the analogous Article 5 of the ECHR. The judgment paid special attention to case-law: Guzzardi v. Italy (1980), Kemmache v. France (1994), Kurt v. Turkey (1998), Aleksei Borisov v. Russia (2015), and Z.A. v. Russia (2017), as well as Alim v. Russia (2011), Shakurov v. Russia (2012) and Azimov v. Russia (2013). Indeed, Strasbourg jurisprudence has played a central role in the development of the CCRF’s jurisprudence since Russia’s ratification of the ECHR in 1998. This article analyses and seeks to explain what in the author’s view is the CCRF’s serious engagement with a body of pan-European quasi-constitutional law, with which Russian jurists feel surprisingly comfortable and experienced. Is there really a cultural incompatibility between Russian and ‘Western’ approaches to human rights law?


Bill Bowring
Professor of Law, Birkbeck College, University of London.
Human Rights Literature Review

Ukraine

Journal East European Yearbook on Human Rights, Issue 1 2018
Authors Dr. Tetyana Antsupova
Author's information

Dr. Tetyana Antsupova
Dr. habil., Judge of the Supreme Court (Ukraine).
Article

Victims’ Right to Reparation in Light of Institutional and Financial Challenges

The International Criminal Court and the Reparation for the Victims of the Bogoro Massacre

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Bogoro massacre (DRC), International Criminal Court, Katanga case, reparation, victims
Authors Péter Kovács
AbstractAuthor's information

    The aim of the article is the presentation of the recently issued documents – the ‘Order for reparation’ issued by the Trial Chamber II of the ICC and the document called ‘Notification’, recently adopted by the Trust Fund for Victims of the ICC – which are important first and foremost in the reparation procedure of the victims of the Bogoro massacre, subsequent to the case The Prosecutor v. Germain Katanga. Second, these documents will also have a considerable impact on the reparation procedures to be carried out by the ICC in the future. The reader can also see the interactions between classic sources of public international law and those norms which are very difficult to be characterized legally but without a doubt play a very important role during the procedure.


Péter Kovács
Professor of international law at the Péter Pázmány Catholic University, Budapest, and judge of the International Criminal Court (2015-2024).
Article

Changing Realities

Islamic Veils and Minority Protection

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords European Court of Human Rights, freedom of religion Islamic veils, minority protection
Authors Dr Gábor Kardos LLM, PhD.
AbstractAuthor's information

    Most of the immigrant communities in Europe do not show any signs of giving up their identity. Just the contrary, they seem to be more and more committed to preserving their culture, traditions, language and religion. Their growing numbers and adherence to their culture and traditions have raised the question of whether it would be necessary to accept them as permanent factors in the society, and consequently, to secure for them, beside equality and freedom of religion, other minority rights such as the right to preserve their cultural and language identity. This change might presuppose a renewal of the traditional understanding of the concept of the national minority. To raise the standards for minority rights of immigrants and at the same time to maintain the level of protection of homeland minorities is not an easy but a necessary solution. But even the accommodation of certain aspects of the freedom of religion of migrants is a problem in practice. As far as the public use of Islamic veils is concerned, the decisions of the European Court of Human Rights proved to be too lenient towards those state parties which put secularity of public institutions before the freedom of religion of the individual. The dissenting opinions correctly emphasize that the role of the authorities is not to remove the cause of tension by eliminating pluralism but to ensure that competing groups tolerate each other. If the Islamic veils are symbols of pressurization, oppression and discrimination, or proselytism, the intervention of state authorities may be justified but the law cannot presuppose that the aforementioned situations are the prevailing ones. If it does so, the collateral damage at the expense of a basic human right of certain true believers is too high.


Dr Gábor Kardos LLM, PhD.
LLM, PhD. Dr Habil. Professor of International Law, International Law Department, Faculty of Law, ELTE University, Budapest, Hungary.
Article

Access_open On the Concept of Corporate Culture

Journal Corporate Mediation Journal, Issue 1 2018
Keywords administrative instruments, business administration, corporate culture, corporate governance, long-term value creation
Authors Prof. Dr. Hans Strikwerda
AbstractAuthor's information

    The Dutch Corporate Governance Code-2016 stipulates that the executive board is responsible for creating a culture serving long-term value creation. Because the DCGC is law for public firms with this stipulation, the concept of culture is moved from the realm of informal administrative instruments to that of formal instruments, subject to dispute in case the duty of care is questioned. This article explains the provenance of the concept of culture, its multiplicity of attributed meanings and roles, and its changing nature in the digital era. Also, the article explains that for long-term value creation, more and different measures are needed than culture, values, vision, strategy or codes of conducts. This raises the question of whether an executive board having publicly committed the firm to long-term value creation demonstrates a credible commitment by complying with the DCGC, respectively culture as a means only, and can exculpate itself doing so. The answer is: no.


Prof. Dr. Hans Strikwerda
Prof. Dr J. Strikwerda, University of Amsterdam.
Article

European Perspectives on Enforcement of Med-Arb Clauses and Med-Arb Awards

Journal Corporate Mediation Journal, Issue 1 2018
Keywords Mediation, Arbitration, Hybrid Dispute Resolution, Due process, Europe
Authors Prof. Dr. Bas van Zelst
AbstractAuthor's information

    In Europe, mediation has historically taken a facilitative approach. It is therefore no surprise that Med-Arb – a hybrid dispute resolution mechanism combining elements of mediation and arbitration – is not high on the agenda of European politicians, academics and practitioners.
    As a result of this (apparent) lack of interest in Med-Arb, it remains unclear to what extent contractual clauses referring parties to Med-Arb (“Med-Arb Clauses”) and arbitral awards resulting from a Med-Arb procedure (“Med-Arb Awards”) are compliant with European standards on due process of law.
    It is this void this article seeks to fill. It will discuss the American experiences with Med-Arb and the pros and cons of Med-Arb forwarded in that context (Section 2). Against this background, the feasibility of Med-Arb from the perspective of European standards on due process of law is assessed. It is concluded that from a European perspective, no overriding concerns of law exist that should call a halt to Med-Arb. Parties must, however, discount certain specific EU standards when agreeing on and conducting a Med-Arb procedure.


Prof. Dr. Bas van Zelst
Bas van Zelst is professor of Dispute Resolution & Arbitration at Maastricht University. He practices law at Van Doorne N.V. in Amsterdam, the Netherlands.

    The Irish Court of Appeal recently clarified the obligations of employers towards employees with a disability.
    The judgment suggests that an employer is not required to alter the duties of a position held by an employee with a disability in order to accommodate that employee’s return to work if the duties, which the employee is no longer capable of performing, are considered essential to the employee’s position.


Lucy O’Neill
Lucy O’Neill is an attorney at law at Mayson Hayes & Curran.
Article

The Margin of Appreciation in the ECtHR’s Case Law

A European Version of the Levels of Scrutiny Doctrine?

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords ECHR, judicial deference, levels of scrutiny, margin of appreciation, U.S. federalism
Authors Koen Lemmens
AbstractAuthor's information

    Although the American doctrine of levels of scrutiny and the European concept of margin of appreciation are regularly compared as typical instances of deferential judicial decision-making, this article argues that owing to the institutional setting in which they operate, the differences between the two are notable. It is also argued that the social consequences of the application of the two concepts may even be radically opposed.


Koen Lemmens
Associate professor of Public Law at KU Leuven (Belgium) and press law VU Brussels (Belgium). The author thanks Toon Agten for his comments and Camille Van Peteghem for her assistance during research. The usual disclaimer applies. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Federalization through Rights in the EU

A Legal Opportunities Approach

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords EU Charter of Fundamental Rights, Federalization, Integration, Legal change, Legal opportunities, Litigation, Scope of application
Authors Marie-Pierre Granger
AbstractAuthor's information

    While academic contributions abound on the reach and impact of the European Union (EU) system of fundamental rights protection, and notably on the desirability of a more or less extensive control of Member States’ actions in light of the rights protected by the EU Charter of Fundamental Rights, there have been few attempts to explain the dynamics of integration-through-rights in the EU. This article proposes an explanatory framework inspired by a legal opportunities approach, which emphasizes the relevance of national and EU legal opportunities, and interactions between them, in determining the actual scope and pace of federalization through rights in the EU. It suggests that the weaker the legal opportunities for fundamental rights protection are at the domestic level, the greater the federalizing pressure is, and call for more empirical comparative studies to test this framework out.


Marie-Pierre Granger
Associate Professor, Central European University, Budapest. The development of the conceptual framework proposed in this article was inspired by empirical studies on France and Hungary carried out within the EU-funded project ‘bEUcitizen: barriers towards EU Citizenship’ under the FP7 programme (Grant agreement 320294). This volume (The EU Bill of Rights' Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets `Momentum' Research Group.
Article

The Architecture of American Rights Protections

Texts, Concepts and Institutions

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords American constitutional development, American legal history, Architecture, Bill of Rights, Congress, constitutional interpretation, constitutionalism, discrimination, due process, equal protection, equality, institutions, statutes, U.S. Constitution, 14th Amendment
Authors Howard Schweber
AbstractAuthor's information

    This article examines the architecture of American rights protections. The term ‘architecture’ is used to convey the sense of a structure system with points of entry, channels of proceeding, and different end points. This structural understanding is applied to the historical development of national rights protections in the United States in three senses: textual, conceptual and institutional. The development of these three structured systems – architectures – of rights reveals dimensions of the strengths, limitations and distinctive character of the American rights protections in theory and in practice.


Howard Schweber
Professor of Political Science and affiliate faculty member of the Law School, Legal Studies, and Integrated Liberal Studies at University of Wisconsin-Madison. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Rights in the Australian Federation

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Australian Constitution, bill of rights, constitutional rights, democracy, federalism, freedom of interstate trade, freedom of religion, implied rights, judicial independence, property rights, right to trial by jury, separation of powers
Authors Nicholas Aroney and James Stellios
AbstractAuthor's information

    The Australian Constitution is unique among constitutional instruments. It was primarily designed to federate self-governing British colonies within the British constitutional tradition and to establish institutions of federal government. As such, the constitutional instrument does not contain an entrenched bill of rights. Yet Australia has been a stable federal democracy since its establishment in 1901 and, by international standards, it is consistently assessed as maintaining high levels of personal freedom, political rights, civil liberties and the rule of law. This article considers the place of rights in the Australian federation against Australian constitutional history and its constitutional context.


Nicholas Aroney
Nicholas Aroney is Professor of Constitutional Law, The University of Queensland. The support of Australian Research Council grant FT100100469 is gratefully acknowledged. Thanks are also due to Terry East for his very capable research assistance. James Stellios is Professor, Law School, Australian National University. Part of this article benefited from the Australian Research Council’s Discovery Projects funding scheme: DP140101218. Part of this article benefited from the Australian Research Council’s Discovery Projects funding scheme: DP140101218. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.

James Stellios
Article

The Harmonization Potential of the Charter of Fundamental Rights of the European Union

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords application of EU law, Article 51 of the Charter, Charter of Fundamental Rights of the EU, Court of Justice, jurisdiction of the Court of Justice, market freedoms, spontaneous harmonization
Authors Filippo Fontanelli and Amedeo Arena
AbstractAuthor's information

    This article discusses two underrated and connected aspects that determine the applicability of the EU Charter on Fundamental Rights to Member State measures. First, the Charter can be a decisive standard of review for domestic measures only when they are covered by EU law but are not precluded by it. In this respect, the distinction between non-preclusion and non-application of EU law has been overlooked by legal scholarship. Second, because the scope of application of EU law and that of the Charter are identical, the latter suffers from the same uncertainties as the former. This article concludes that the entry into force of the Charter has exposed the blurred contours of the application of EU law, in particular in the area of the market freedoms. As a result, a certain spontaneous harmonization of human rights protection has emerged.


Filippo Fontanelli
Respectively, Senior Lecturer in International Economic Law, University of Edinburgh; and Associate Professor, Università degli Studi di Napoli ‘Federico II’. The work is the outcome of both authors’collaboration. Amedeo Arena drafted sections A to C, Filippo Fontanelli drafted sections D to G.

Amedeo Arena
A previous version of this work appeared in M. Andenas, T. Bekkedal & L. Pantaleo (Eds.), The Reach of Free Movement, Springer, TMC Asser Press, 2017, p. 293-312. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
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