New articles on ECHR and ECJ

Below are listed some of the articles,  which have been published in past months on the European system of human rights protection.

Scott L. Greer, Tomislav Sokol, Rules for Rights: European Law, Health Care and Social Citizenship, European Law Journal (2014) Volume 20, Issue 1, 66–87.

Social citizenship is about equality. The obvious problem for European social citizenship in a very diverse Union is that Member States will not be able or willing to bear the cost of establishing equal rights to health care and similar aspects of social citizenship. Health care is a particularly good case of this tension between EU citizenship and Member State diversity. The European Court of Justice (ECJ) strengthened the right to health care in other Member States, but this cannot create an equal right to health care when Member States are so different. In its efforts to balance a European right, the Court has formulated ‘rules for rights’—not so much European social citizenship rights, as a set of legal principles by which it judges the decisions of the Member States.

Lourdes Peroni & Alexandra Timmer, Vulnerable Groups: the Promise of an Emergent Concept in European Human Rights Convention Law, 11 International Journal of Constitutional Law (2013), 1056-1085.

The concept of “vulnerable groups” is gaining momentum in the case law of the European Court of Human Rights. The Court has used it in cases concerning Roma, people with mental disabilities, people living with HIV and asylum seekers. Yet the appearance of the vulnerable group concept in the Court’s legal reasoning has so far escaped scholarly attention. Drawing on theoretical debates on vulnerability and equality as well as on the Court’s case law, this Article offers a descriptive and normative assessment of the concept. Reasoning in terms of vulnerable groups opens a number of possibilities, most notably, the opportunity to move closer to a more robust idea of equality. However, the concept also has some inherent difficulties. This Article argues for a reflective use of the concept and points out ways in which the Court can avoid its pitfalls.

Anthony Cullen, Steven Wheatley, The Human Rights of Individuals in De FactoRegimes under the European Convention on Human Rights, Human Rights Law Review (2013)13 (4): 691-728.

The objective of this article is to evaluate the extent to which we can regard individuals in the territories of de facto regimes in the Council of Europe region (Abkhazia, South Ossetia, Nagorno-Karabakh, Transdniestria and Turkish Republic of Northern Cyprus) as enjoying the protection of the European Convention on Human Rights. The work considers the utility of recognising ‘de facto regimes’ as subjects of international law, before examining the relevant case law of the European Court of Human Rights and wider international law on the human rights obligations of such political entities. It then draws on the doctrine of acquired human rights to recognise, in certain circumstances, that the European Convention on Human Rights can be opposable to such regimes and concludes by reflecting on the implications of the analysis for understanding human rights in world society.

Jernej Letnar Černič, The prohibition on hate speech in the case-law of the European Court of Human Rights, Dignitas – Slovene Journal of Human Rights (2013), Issue 57-58, 128-145.

The right to freedom of expression is one of the foundations of a free, pluralistic, tolerant and democratic-minded society. However, the right to freedom of expression is not absolute because it must be protected in relation to other values. This article addresses and analyses 42 cases from the case-law of the European Court of Human Rights relating to hate speech. The analysis of these 42 cases illustrates the lowest common denominator, namely, that freedom of expression does not protect hate speech based on the glorification of genocide, crimes against humanity, the Holocaust or discriminatory and xenophobic statements against racial, religious or ethnic groups. The article concludes that individuals hold a key responsibility for creating a tolerant, open-minded and pluralistic public sphere in the respective European societies.

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