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Case Law

Access_open 2021/1 EELC’s review of the year 2020

Journal European Employment Law Cases, Issue 1 2021
Authors Ruben Houweling, Daiva Petrylaitė, Marianne Hrdlicka e.a.
Abstract

    Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Daiva Petrylaitė

Marianne Hrdlicka

Attila Kun

Luca Calcaterra

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Andrej Poruban

Anthony Kerr

Filip Dorssemont
Article

Beizaras and Levickas v. Lithuania

Recognizing Individual Harm Caused by Cyber Hate?

Journal East European Yearbook on Human Rights, Issue 1 2020
Keywords hate speech, verbal hate crime, cyber hate, effective investigation, homophobia
Authors Viktor Kundrák
AbstractAuthor's information

    The issue of online hatred or cyber hate is at the heart of heated debates over possible limitations of online discussions, namely in the context of social media. There is freedom of expression and the value of the internet in and of itself on the one hand, and the need to protect the rights of victims, to address intolerance and racism, as well as the overarching values of equality of all in dignity and rights, on the other. Criminalizing some (forms of) expressions seems to be problematic but, many would agree, under certain circumstances, a necessary or even unavoidable solution. However, while the Court has long ago declared as unacceptable bias-motivated violence and direct threats, which under Articles 2, 3 and 8 in combination with Article 14 of the ECHR, activate the positive obligation of states to effectively investigate hate crimes, the case of Beizaras and Levickas v. Lithuania presented the first opportunity for the Court to extend such an obligation to the phenomenon of online verbal hate crime. This article will first address the concepts of hate speech and hate crime, including their intersection and, through the lens of pre-existing case law, identify the key messages for both national courts and practitioners. On the margins, the author will also discuss the issue of harm caused by verbal hate crime and the need to understand and recognize its gravity.


Viktor Kundrák
Viktor Kundrák has worked for the OSCE Office for Democratic Institutions and Human Rights (ODIHR) as a Hate Crime Officer since 2018. He has been responsible for ODIHR’s hate crime reporting, trained police, prosecutors and judges, and provided legislative and policy support at the national level. He is also a PhD candidate at Charles University in Prague. The views in this article are his own and do not necessarily represent those of ODIHR. Some of the opinions are based on an article published in Czech earlier this year (see V. Kundrák & M. Hanych, ‘Beizaras and Levickas v. Lithuania (Verbal Hate Crime on Social Network and Discriminatory Investigation)’, The Overview of the Judgments of the European Court of Human Rights, Vol. 3, 2020.
Article

Access_open Positive State Obligations under European Law: A Tool for Achieving Substantive Equality for Sexual Minorities in Europe

Journal Erasmus Law Review, Issue 3 2020
Keywords Positive obligations, sexual minorities, sexual orientation, European law, human rights
Authors Alina Tryfonidou
AbstractAuthor's information

    This article seeks to examine the development of positive obligations under European law in the specific context of the rights of sexual minorities. It is clear that the law should respect and protect all sexualities and diverse intimate relationships without discrimination, and for this purpose it needs to ensure that sexual minorities can not only be free from state interference when expressing their sexuality in private, but that they should be given the right to express their sexuality in public and to have their intimate relationships legally recognised. In addition, sexual minorities should be protected from the actions of other individuals, when these violate their legal and fundamental human rights. Accordingly, in addition to negative obligations, European law must impose positive obligations towards sexual minorities in order to achieve substantive equality for them. The article explains that, to date, European law has imposed a number of such positive obligations; nonetheless, there is definitely scope for more. It is suggested that European law should not wait for hearts and minds to change before imposing additional positive obligations, especially since this gives the impression that the EU and the European Court of Human Rights (ECtHR) are condoning or disregarding persistent discrimination against sexual minorities.


Alina Tryfonidou
Alina Tryfonidou is Professor of Law, University of Reading.

Mark Walters
Mark Walters is Professor of Criminal Law and Criminology, University of Sussex, Brighton, UK. Contact author: Mark.Walters@sussex.ac.uk.
Article

Restorative justice as feminist practice

Journal The International Journal of Restorative Justice, Issue 3 2018
Keywords Restorative justice, gender-based violence, feminism
Authors Leigh Goodmark
AbstractAuthor's information

    Feminists have viewed the implementation of restorative practices warily, particularly in the context of gender-based harms. Concerns include the devaluing of gender-based harms, the reprivatisation of violence against women and the inability of restorative practitioners to guarantee safety for people subjected to abuse. But this article will argue that restorative justice can be a uniquely feminist practice, growing out of the same mistrust of state-based systems and engagement of the community that animated the early feminist movement. Although some caution is warranted, restorative justice serves the feminist goals of amplifying women’s voices, fostering women’s autonomy and empowerment, engaging community, avoiding gender essentialism and employing an intersectional analysis, transforming patriarchal structures and ending violence against women.


Leigh Goodmark
Leigh Goodmark is Professor of Law and Director of the Gender Violence Clinic at the University of Maryland Francis King Carey School of Law, Baltimore, USA. Contact author: lgoodmark@law.umaryland.edu.

Mary E. McNally MSc, DDS, MA
Mary E. McNally, MSc, DDS, MA, is a Professor at Dalhousie University Faculty of Dentistry in Halifax Nova Scotia, Canada. Contact author: mary.mcnally@dal.ca. Acknowledgement: The author wishes to acknowledge and thank members of the Dalhousie University Dentistry Class of 2015 whose experiences are providing a foundation from which others may learn and benefit.

Marjoleine Zieck
Dr. Marjoleine Zieck is Professor of International Refugee Law at the Amsterdam Law School of the University of Amsterdam, and Professor of Public International Law at the Pakistan College of Law, Lahore.

    Those who talk can be heard. Those who are allowed to talk may be listened to. This study is an attempt to give legal voice to those who cannot talk or are usually not listened to: children. This study is about the attention given to their interests, the best interests of the child. When these interests are immersed in a minority context, children may be overlooked for different reasons, including discriminatory attitudes or prejudice regarding their families. Law and its interpretation must be changed in order to include the difference. This study discusses the best interests of the child principle with special attention to its legal relevance in cases where lesbians, gays, bisexual and transgender (LGBT) are, or want to be, parents. The authoritative source for the interpretation of the principle is the United Nations (UN) Convention on the Rights of the Child (CRC). The analysis focuses on the European Court of Human Rights (ECtHR) and its case law. The study aims to explore the Court’s approach to the best interest of the child and identify whether the principle is being consistently applied in cases involving LGBT families, given the fact that sexual orientation and gender identity are still sensitive issues in Europe. This is done by comparing these cases to cases lodged by applicants who were not identified as an LGBT person. The margin of appreciation doctrine and the lack of European consensus on sexual minorities’ rights are confronted with the urgent paramount consideration that has to be given to children’s best interests. The analysis explores whether there is room for detecting a possible Court’s biased approach towards the concept of the best interests of the child. This study challenges the Court’s decisions in the sense that the focus should not only be at the LGBT parents’ rights to private and family life, but also at the interests of their daughters and sons. This is an attempt to call upon the ECtHR and all states not only to actively fight discrimination against LGBT persons, but, ultimately, to stop interpreting the concept of the best interests of the child in an arguably biased way, and to consider the principle’s legal value in any decision, regardless of their parents’ sexual orientation, gender identity or any other distinction.


Mr. Gabriel Alves de Faria
Gabriel Alves de Faria is a Brazilian lawyer, LGBTI activist and human rights specialist who holds a Law degree from the Federal University of Espirito Santo and a European Master’s Degree in Human Rights and Democratisation (E. MA/EIUC - Utrecht University). Among other legal and social experiences in the human rights field, Gabriel has worked as a researcher in comparative sexual orientation Law at Leiden University and most recently as a Fellow and consultant lawyer at the LGBTI Rapporteurship of the Inter-American Commission on Human Rights in Washington, DC. His latest project is a documentary on the situation of LGBTI persons in Southeast Asia.
Article

Constitutional Review in the Caribbean

Journal European Journal of Law Reform, Issue 1-2 2010
Keywords Guyana, electoral reform, constitutional reform, international human rights law, Caribbean
Authors Avril Anande Trotman-Joseph
AbstractAuthor's information

    Guyana, South America, is a former colony of Britain and the only English-speaking country in South America, but has more in common with its English-speaking Caribbean neighbours. Constitutional reform and resulting constitutional amendments were precipitated in 1999-2000 by civil unrest following national elections and dissatisfaction by the major opposition with the outcome of an election characterized by ethnic differences between respective supporters of parties backed by followers of traditionally Indian, African and Amerindian origin. This process was a brokered effort to ameliorate the national dissatisfaction and an opportunity for civil society representatives and political representatives of the unicameral House of Parliament to work together in recommending electoral and constitutional reform. The outcome was the radical reform and modernization of the constitutional entrenchment of the modern concepts of international human rights law. In this regard Guyana is ahead of the other sister nations of the Caribbean, CARICOM grouping in terms of constitutional advancements. However, the political will to realize far-reaching electoral and governance reforms, as well as the effective implementation of the entrenched human rights reforms, still lags behind, despite the amendment of the constitution, the appointment of several commissions and the establishment of a parliamentary oversight committee tasked with continuous constitution review.


Avril Anande Trotman-Joseph
Avril Anande Trotman-Joseph is presently a law partner with the firm of Joseph & Joseph in Saint George’s, Grenada. She is an OAS and UNIFEM Consultant in the Caribbean; she serves on the Board of the Caribbean Institute of Leadership and as Deputy Chairperson of Grenada’s Integrity and Anti Corruption Commission.
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