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An increasing number of cases before the European Court of Human Rights challenge flaws in criminal proceedings. This chapter analyses the role of prosecution and punishment under the European Convention of Human Rights. Several standards for the criminalization and prosecution of serious human rights violations have been developed by the European Human Rights Court. Enactment and enforcement of criminal law are increasingly seen as mandatory measures to ensure the effective enjoyment of human rights. The chapter elaborates and critically evaluates this fairly recent process. It describes the necessary standards for the criminalization, investigation and conduct of criminal proceedings against human rights offenders. It also considers victims' rights and their role in criminal procedure. A detailed representation of the relevant provisions and the pertinent jurisprudence are provided in order to provide a guide through the wealth of cases. The chapter concludes with a summary and outlook.

This chapter examines the reception of the ECHR in the UK and Ireland both before and after incorporation. Both countries incorporated the ECHR using roughly the same model. One might have assumed that the mode of incorporation into a dualist legal order would largely determine outcomes. In Ireland and the UK, however, the impact of acts of incorporation was heavily mediated by pre-existing constitutional structure and practice.

Chapter 4 analyses the European human rights regime, often regarded as a prime example of constitutionalization beyond the state. At closer inspection, this description turns out to be misguided—the regime is better regarded as pluralist, as characterized by a heterarchical relationship between its constituent parts that is ultimately defined politically and not legally. The chapter traces the emergence and workings of this pluralist order through the interaction of the European Court of Human Rights with domestic courts in Spain, France, the European Union, and the United Kingdom. These cases not only show conflicts over questions of ultimate supremacy but also significant convergence and harmony in day-to-day practice. The analysis suggests that central characteristics of pluralism—incrementalism and the openness of ultimate authority—have contributed substantially to this generally smooth evolution.

This chapter examines the socio‐politics of bill of rights debates and outcomes in the United Kingdom including, in particular, the origins of the Human Rights Act (HRA) (1998). Following a brief chronological overview, the first part of the chapter explores the forces which have fuelled the gradually increased background pressures for a bill of rights. Since the 1960s, a postmaterialist rights lobby of civil libertarians and social equality seekers not only emerged politically but came to advocate for a bill of rights. The United Kingdom's participation in the European Convention on Human Rights (ECHR) also encouraged and shaped the domestic formalization of rights, particularly as instantiated in the HRA. The second part of the chapter explores the much more sporadic nature of elite political interest in a bill of rights. Focusing on the genesis of the HRA, it argues that this was politically triggered by Labour and the left's ‘aversive’ reaction against the perceived authoritarianism of Margaret Thatcher's Conservative Administration. The chapter closes with a brief consideration of the prospects of a fully indigenous British bill of rights designed either to complement or replace the HRA.

This chapter looks at the child's right to privacy. It argues that whilst in theory children have a right to privacy under Article 8 European Convention on Human Rights (ECHR), in practice there is an absence of rights-based reasoning in the privacy jurisprudence concerned with children. The chapter considers a number of areas in which the courts have been faced with cases relating to Article 8 ECHR privacy rights of the child. By analysing the manner in which the courts have addressed the right in these cases, it becomes apparent that the only situations in which the courts have given serious consideration to the child's right to privacy are situations in which either a high degree of protection is afforded to that privacy-related interest in the adult context or where the child is vulnerable to a clearly identifiable harm. This is problematic because the right to privacy is not usually, and should not be, contingent upon the individual suffering harm. Moreover, children may require greater and different privacy protection than adults. It is therefore argued that the child's right to privacy is not being adequately analysed or protected.

Creation of the Council of Europe in the shadow of Nuremburg. History of gradual UK incorporation. European Court of Human Rights. Human Rights Act 1998. Human rights and unpopular minorities. Growth of a human rights culture among lawyers; unpopularity with politicians and media. The weak entrenchment of HRA 1998.

This chapter provides an overview of the story of the evolution of the European Convention on Human Rights. It comments on the current crisis facing the Court. It then discusses the origins of the Convention and explains, in summary form, how it developed over subsequent decades. The situation of the Convention and the European Court of Human Rights over the 1950s, 1960s, 1970s, 1980s, and 1990s is examined.

This chapter reviews the action of the Council of Europe in the field of trafficking in persons. The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) adopted by the Council of Europe in 1950 does not explicitly mention trafficking in persons, although its Article 4 does deal with slavery, servitude, and forced labour. Therefore, as recently demonstrated in Siliadin v France, the protection of trafficking victims can be achieved through the implementation of this ECHR provision. Furthermore, the recent adoption of the European Convention on Action against Trafficking in Human Beings can be considered as a major step in the fight against the phenomenon, and there is no doubt that this instrument is the most advanced international convention dealing with this phenomenon. The chapter concludes by analysing the activities of the Council of Europe in the field of trafficking in human organs and tissues.

This chapter discusses the reception of the ECHR in Greece and Turkey. Both countries ratified the ECHR almost simultaneously in the 50's, without critically and rigorously scrutinizing their domestic laws as to their conformity with the ECHR, and despite theoretically recognizing judicial review of legislation, the Greek and Turkish courts have traditionally deferred to the other two branches of Government. However, in the last three decades, differences in the effectiveness of the ECHR in Greece and in Turkey have become increasingly visible. Following the restoration of democracy in Greece in 1975, the fundamentals of democracy and rule of law soon became commonplace. In contrast, in Turkey, the traditional resistance to reforms in the State bureaucracy, including the Judiciary, the deficient willpower of the Government's political branches for the implementation of the reforms, the rise of nationalism, and the role of the military have perpetuated the difficulties for an effective reception of the ECHR.

This chapter discusses the reception of the ECHR in Russian and Ukraine. Topics covered include the accession and ratification of the ECHR in both countries, the status of ECHR in national law, an overview of the activity of the Court, and the Court's case law and its effect on the national legal order. Despite the similar starting point for the reception of the ECHR in Russia and Ukraine, the later developments are marked by numerous divergences. The development in Russia, after a period of instability in the 1990s, led to the reestablishment of a more authoritarian rule under President Putin. Internally, Russia is struggling with the consequences of the war in Chechnya, but externally it takes a leading role in world politics and, with newly acquired self-confidence, starts to close the doors for criticism from abroad. In contrast, the transitory period in Ukraine continues.

This chapter discusses the reception of the ECHR in France and Germany. Although both States have been active supporters of human rights and have been close partners in the construction of Europe, their courts were reluctant to refer directly and explicitly to the ECHR. The reception of the ECHR can be characterized as ‘forced’ adaptation, rather than a voluntary process: often, authorities had no choice but to adjust the national legal order to the requirements of the ECHR. In both countries, the relationship between the national courts and the European Court of Human Rights has not always been harmonious, and some tensions remain.

This chapter sets out the intellectual history of the protection of rights in English constitutional thought from 1689 to present, and how this approach to protecting rights was translated to the British overseas territories. It then assesses how the mechanisms for the protection of rights in the overseas territories operated during times of emergency and considers human rights violations in the colonial territories. The impact upon the British attitude to human rights in its colonial territories as a result of Britain's international obligations under the League of Nations and the United Nations as well as the European Convention on Human Rights is considered. Finally, the use of constitutionally entrenched rights in former colonies granted independence prior to 1950 is described.

This book investigates the ways in which human rights articulate with business law and practice, adopting as a facilitatory starting point approaches to the issue common in international law and constitutional law. More closely, it examines the level of protection offered company interests by the European Convention on Human Rights (ECHR). The book thus offers a study of the doctrinal response developed in Strasbourg by the European Court of Human Rights to claims for ECHR protection submitted by or on behalf of companies. It is important to appreciate that under the ECHR, the notion of companies enjoying rights protection is not disputed in principle: the Court does not per se regard corporate litigation with suspicion. This does not mean, however, that the protection of corporate interests is plain sailing in terms of ECHR law. The particular features of the corporate person and the interests pursued by such, combined with the particular structure of the ECHR and its international supervision, sometimes pose interpretative and practical challenges in terms of ECHR guarantees.

This chapter discusses the impact of the ECHR in 18 national legal orders. Topics covered include the reception of the ECHR into domestic law and practice, inputs into the ECHR legal system (applications) and the most important outputs (judgements of the Court and other decisions), the Court's impact on national legal systems, how the evolution of certain structural features of the Convention has complicated the reception process at the domestic level, and the future of the Court.

This chapter discusses the reception of the ECHR in Austria and Switzerland. Topics covered include the accession and ratification of the ECHR in both countries, the status of the ECHR in national law, an overview of the activity of the European Court of Human Rights, and the ECtHR's case law and its effects on the national legal order. Although both countries joined the ECHR at a relatively early stage, this starting position led to different outcomes. The main reason is because the common denominators of neutrality and federalism in these two countries are actually rather small: as Austria follows a very different concept of neutrality, it did not face any (political) difficulties before and during the ratification process. Switzerland, on the other hand, was very reluctant to join the Council of Europe and careful to avoid any concessions with regard to neutrality.

The accession of Central and Eastern European states into the Council of Europe and therefore the European Court of Human Rights system, prompted a shift of the European Court of Human Rights towards a quasi-constitutional role. The Court moved beyond the simple identification of incorrect individual decisions (in largely Western countries) towards the consideration of systemic legal defects, triggered by structural problems within the new CEE Member States, and further facilitated by collaboration between the Court and the national constitutional courts of the new Member States. The emergence of so-called ‘pilot judgments’ (which mainly originate from CEE states) is the best and most recent illustration of this trend. The way in which a national court may form a de facto alliance with the European Court of Human Rights effectively ‘pierces the veil of the State’ and positions the European Court as a quasi-constitutional judicial body at the pan-European level.

This introductory chapter presents and elaborates on the main theme of the book – the domestic implementation of the European Court of Human Rights (ECtHR) judgments – and highlights its contribution in the existing body of scholarly research. In advancing an interdisciplinary perspective into the subject, it extends beyond the predominantly legal genre of scholarship to explore the institutional actors involved in it, as a few studies have began to do over the past couple of years. At the same time, this chapter also discusses the need for a for a multifaceted approach that further takes into account and explores the political context and the societal dynamics that influence domestic implementation. The next part of this introductory chapter depicts the basic contours of the Convention's institutional evolution and its enforcement machinery. The third part expounds the methodological and analytical considerations guiding the present set of studies, while the last two parts elaborate on and provide an overview of the two main sections of the book that examine a) the implementation responses of, and interactions among different institutional and governmental actors, and b) the patterns of legal and political mobilisation to pursue different minority-related rights claims vis-à-vis states.

This chapter begins by discussing the European Convention on Human Rights (ECHR). Established in 1953, the ECHR created a basic catalogue of rights binding on the signatories, and new institutions charged with monitoring and enforcing compliance. The ECHR has since evolved into an intricate legal system. The High Contracting Parties have steadily upgraded the regime's scope and capacities, in successive treaty revisions. They have added new rights, enhanced the powers of the European Court of Human Rights (ECtHR), and strengthened the links between individual applicants and the regime. Today, the Court is an important, autonomous source of authority on the nature and content of fundamental rights in Europe. In addition to providing justice in individual cases, it works to identify and to consolidate universal standards of rights protection, in the face of wide national diversity and a steady stream of seemingly intractable problems. The methodology used to analyze the case studies presented in the subsequent chapters is described.

This chapter discusses the reception of the ECHR in Poland and Slovakia. Topics covered include the accession and ratification of the ECHR in both countries, the status of ECHR in national law, the implementation of international law by domestic courts, an overview of case law, and the European Court's case law and its effects on the national legal system. It is shown that despite the similar historical situation of both countries, the patterns of reception of the ECHR differ considerably. In Poland, the ECHR became immensely popular and gained the status of an instrument of popular justice, resorted to by individuals in a spontaneous and unorganized manner. In Slovakia, it plays a similar role in so far as it is used extremely rarely by organized civil society institutions as a legal advocacy instrument.

This chapter discusses the mechanisms utilized for the implementation and review of the Council of Europe's position on civil, political, and socio-economic rights. The protection of human rights within the Council of Europe differs according to whether the right in question is protected under the European Convention on Human Rights 1950 (ECHR) or the European Social Charter 1961 (ESC). The level of protection for civil and political rights under the former is far superior to that provided for social rights under the latter. This is significant because the right to strike is expressly protected only under the ESC.