Tuesday 3 August 2010

New Articles on ECHR (Hate Speech, Minorities, and More)

I am back after a summer break with fresh energy and a new reading notification for this blog's readers: Uladzislau Belavusau, a Ph.D. researcher at the European University Institute in Florence has published 'Dernier Cri from Strasbourg: An Ever Formidable Challenge of Hate Speech' in European Public Law (Vol. 16/3, 2010, pp. 373-389). This is the abstract of the article:

This article provides the analysis of three recent decisions of the European Court of Human Rights on the problem of hate speech, pertinent in the context of the danger of terrorism, an infamous (anti)-immigration debate, and an extreme nationalist historical mythology (Soulas & Others v. France, Leroy v. France, Balsytė-Lideikienė v. Lithuania). The author endeavours to answer if the ‘dernier judicial design’ of these decisions is actually posing a risk of chilling effect (as some scholars have recently argued) or the earlier Strasbourg proportionality is still à la mode.
The same issue of European Public Law contains no less than five other ECHR-related articles:

* Individuals from Minority and Marginalized Groups before the Strasbourg Court: Legal Norms and State Responses from a Comparative Perspective, by Anagnostou and Millns

The obligation of states to implement the European Court of Human Rights case-law and the potential to exert influence in domestic laws and policies have been instrumental in the establishment and consolidation of the regime of human rights protection established by the European Convention on Human Rights. This article outlines a frame for exploring domestic implementation of ECtHR judgments by specifically focusing on case-law pertaining to marginalized individuals and minorities across different countries. The Court’s jurisprudence has progressively extended the scope of the civil and political rights contained in the Convention to address and at times embrace a multifaceted set of rights claims by non-dominant and marginalized groups, such as prisoners, immigrants, refugees, ethnic, religious, sexual minorities, etc. The purpose of the research introduced by this article is to comparatively explore the conditions under which state authorities implement adverse judgments pertaining to such groups, as well as to probe whether these promote rights-expansive policy change at the national level.
* Human Rights Litigation and Restrictive State Implementation of Strasbourg Court Judgments: The Case of Ethnic Minorities from Southeast Europe, by Anagnostou and Grozev

Legal action by members from ethnic minorities in Strasbourg has often been an alternative route or mobilization strategy aiming to redress broader problems beyond the individual grievances concerned and to pressure national governments to change the way they treat minorities. It is premised on a widespread, but also highly disputed, expectation that judicial rulings can vindicate minorities and exert pressure upon governments to change their relevant laws and practices. Focusing specifically on four countries of Southeast Europe (Greece, Bulgaria, Turkey, and Romania), this article explores the domestic implementation of the European Court of Human Rights (ECtHR) judgments addressing minority claims, as well as its impact (or lack of it) on the ways in which national authorities deal with minorities. Do national authorities implement Strasbourg Court judgments related to ethnic minorities, to what extent and under what conditions are they likely to do so? Does their implementation promote progressive reforms in state laws and policies towards historical minorities? What is the nature of European judicial and human rights influence – if any – at the national level?
* Litigation before the European Court of Human Rights and Domestic Implementation: Does the European Convention Promote the Rights of Immigrants and Asylum Seekers?, by Buchinger and Steinkellner

The purpose of this article is to compare the evolution and current state of European Court of Human Rights (ECtHR) jurisprudence in issues of immigration and asylum. Looking at the variable patterns of litigation and implementation across Europe, the article examines the common challenges to all States in dealing with complex questions of state sovereignty, the regulation of the entry and stay of immigrants and asylum seekers and the human rights of non-nationals. Following a description of the Council of Europe (CoE) framework in dealing with immigration and asylum issues, the article goes on to examine noteworthy case law from the Strasbourg Court, followed by a detailed account of the variable patterns and causes of litigation in different European Union Member States and the different patterns of implementation of ECtHR decisions. The article concludes with a consideration of the impact of European human rights law on the protection of the rights of individuals with an immigration or asylum background.
* Gendered Rights on the European Stage: Do Marginalized Groups Find a ‘Voice’ in the European Court of Human Rights?, by Brayson and Millns

This article examines the pursuit of gender equality rights before the European Court of Human Rights from a comparative perspective. Drawing on material from case reports from a number of European countries, this article investigates the application of Article 14 of the European Convention on Human Rights (the non-discrimination provision) to instances of gender discrimination. Using a theoretical framework of ‘intersectionality’, this article suggests that many cases that arguably have a gender component to them are not viewed as such by the European Court of Human Rights. Instead, they are treated as generic claims raising other civil or political rights and are thereby stripped of their important gender dimension. Two recent cases of the Court brought against Bulgaria (MC and Bevacqua) are, however, celebrated for a more gender specific analysis of the ‘private’ harms suffered by the victims in these cases.
* Secularism and the European Court of Human Rights, by Gülalp

This article examines the variety of State-religion relations and the place of Islam in Europe through a critical analysis of the case law of the European Court of Human Rights (ECtHR, or the Court). This examination reveals both the patterns of litigation, hence the diversity in national political cultures, and the dominant normative assumptions about religion and secularism in Europe more generally, which are implicit in the Court’s reasoning. Although the Court grants a ‘margin of appreciation’ to individual states, the margin itself seems to vary according to those implicit normative preferences. The essay argues that although neither the Convention nor the Court prescribes a normative model of secularism or State-religion relations, there still seems to be an implicit pattern whereby the Court prefers some models to others. Historically ingrained cultural assumptions about not only the division between Christianity and Islam but also between Western and Eastern Christianity appear to have played a part in the reasoning of the judges of the ECtHR.
Thanks to the author for notifying me of this!