Cover

Halftitle

Title

Copyright

Contents

Contributors

Acknowledgements

1 Introduction

1. The importance of ‘shaping rights’ - and the difficulties related to it

2. Shaping rights: four central themes

2.1 Conceptual, structural and constitutional issues

2.2 Developments in the case law of the European Court of Human Rights

2.3 Similar issues in different systems - a 360° comparison

2.4 A closer look at specific Convention rights

3. Findings: a compilation

3.1 Conceptual, structural and constitutional issues relating to the scope of rights

3.2 Scope and more - developments in the case law of the ECtHR

3.3 360° comparison

3.4 A closer look at specific rights

Part 1 Conceptual, structural and constitutional issues relating to the scope of rights

2 Between the will of the Contracting Parties and the needs of today

1. Technological progress

2. Changing social relationships

3. Evolution in human rights standards

4. The Court’s jurisprudential tools for expanding the application of the Convention

5. Conclusions

3 The scope and balancing of rights

1. Constitutive v. diagnostic questions

2. Constitutive elements of fundamental rights

3. Three test cases

4. Strasbourg’s diagnostic test and its shortcomings

4.1 Mary

4.2 Smith

4.3 Betty

5. Conclusion

4 Interpreting the protection guaranteed by two-stage rights in the European Convention on Human Rights

1. Focusing on interpretation

2. Scope and limit

3. Wide interpretation advocated

4. Wide interpretation questioned

5. Constitutionalisation of disputes

6. Deluge of cases

7. Conclusion

5 The scope of ECHR rights and institutional concerns

1. Introduction

2. The connection between the scope of rights and institutional concerns

2.1 Introduction: the assumption of a connection between scope of rights and case load

2.2 Defining ‘core’ and ‘peripheral’ fundamental rights cases

2.3 Disproving a quantitative connection

2.4 The qualitative connection: institutional concerns and the scope of rights

3. Are there any solutions?

3.1 Introduction

3.2 Looking ahead

3.3 Clarifying the scope of the Convention

3.4 Setting clear thresholds for Convention applicability

4. Conclusion

Part 2 Scope and more - developments in the case law of the ECtHR

6 Defining the scope of economic and social guarantees in the case law of the ECtHR

1. Introduction

2. Economic and social aspects of the Court’s case law: avoiding the definition question

3. Determining the scope of rights in line with the structure of fundamental rights

4. Framing the issue in a different fashion: defining minimum core obligations

5. Conclusion

7 Procedural protection

1. Procedural scope

2. Right to a procedure

2.1 Right to an investigation

2.1.1 Under Article 2 ECHR

2.1.2 Under Article 3 ECHR

2.1.3 Other ECHR provisions

2.2 Right to a remedy

2.3 Evaluation/supervision procedure

2.4 Procedure as right/right as procedure

3. Procedural quality control

3.1 Effectiveness

3.2 Independence/impartiality

3.3 Participation

3.4 Timeliness/promptness

3.5 Motivation of decision

3.6 Assessment of relevant information and expertise

3.7 Accounting for relevant specificities

3.8 Other procedural guarantees

3.8.1 Public character of investigation

3.8.2 Overall fairness of decision-making procedure

3.8.3 Procedural guarantees in general rules (and their application)

3.8.4 Procedural guarantees in court

3.9 ‘Inhuman’ procedural shortcomings

4. Implications

4.1 Relationship to procedural provisions

4.1.1 Article 13

4.1.2 Article 6

4.2 Relationship to substantive guarantees

4.3 Relationship to margin of appreciation

5. Conclusion

8 The scope of rights and the scope of obligations

1. Introduction

2. Structure of human rights

2.1 Bifurcation scope - limit

2.2 The symmetrical model

2.3 The scope of a Convention right

2.3.1 Protected interest/infringement

2.3.2 Wide interpretation

2.3.3 Application to the Court’s case law

2.3.4 A ‘knowledge’ condition?

2.4 The second stage of the analysis

2.4.1 Legality and legitimacy

2.4.2 Necessary in a democratic society

2.4.3 ‘Non-qualified’ rights

2.4.4 Determining the ‘scope’ of positive obligations

3. Keep the scope ‘clean’

3.1 Keep proportionality out of the scope

3.1.1 Reasonable accommodation

3.1.2 Environmental cases

3.1.3 Religion in the workplace

3.1.4 De minimis

3.2 Keep legality out of the scope

4. Conclusion

9 Contested contours

1. Introduction

2. An unnoticed side entrance: the genesis of Article 17

3. Character and meaning

4. The relationship between Article 17and other Convention provisions

5. Case law - ways of applying Article 17

5.1 Direct application

5.2 Indirect application

5.3 No application

6. Conclusion - pros and cons of applying Article 17

Part 3 360° comparison

10 Bottom-up shaping of rights

1. Introduction

2. UK influences in the shaping of ECHR rights

2.1 Courts martial: independence and impartiality in light of Article 6

2.2 Brown v. Stott: the right to remain silent under Article 6

2.3 The Horncastle and Al-Khawaja saga

2.4 Countryside Alliance in the House of Lords and in Strasbourg

3. The approach of national courts is not necessarily unitary

4. Conclusion

11 Old and new human rights in Europe

1. Material and personal scope of the ECHR versus the Charter

1.1 Material scope of the Charter versus the ECHR

1.2 The personal scope of the Charter versus the ECHR

2. The relationship between the Charter and the ECHR in light of Article 52(3) EUCFR

2.1 The problem of ‘more extensive protection’

2.2 The primary duty under Article 52(3)

2.3 More extensive protection

3. Conclusion

12 European human rights as universal rights

1. Introduction

2. ECHR and universal human rights

3. Phases of scope determination

4. Two short remarks about the World Court of Human Rights

Part 4 A closer look at specific rights

13 The ‘absolute’ prohibition of torture and inhuman or degrading treatment in Article 3 ECHR

1. Introduction

2. How Article 3should function for it to be truly absolute

3. The negative dimension of Article 3: the role of illegitimate purposes and legitimate objectives

3.1 Contradictions in cases concerning solitary confinement and force-feeding

3.2 Addressing the contradiction: possible ways forward

4. The positive dimension of Article 3: is absolute protection possible?

4.1 Protection in mixed cases

4.2 Strictly positive obligations to protect and to fulfil

5. Conclusion

14 The right to a fair trial and its multiple manifestations

1. Introduction

2. Interpretation of the various elements of Article 6(1) ECHR

2.1 Scope of application

2.1.1 Applicability under the civil head

2.1.2 Applicability under the criminal head

2.2 Right to a court

2.3 Some structural and procedural guarantees

2.3.1 Independence

2.3.2 Impartiality

2.3.3 Oral and public hearing and public judgment

2.3.4 Fairness of the proceedings

3. Concluding remarks

15 How the right to respect for private and family life, home and correspondence became the nursery in which new rights are born

1. Introduction

2. The Convention’s evolution and Article 8

2.1 Pact against totalitarianism or European bill of rights?

2.2 ‘Living instrument’

2.3 Going beyond the drafters’ explicit intentions

2.4 Autonomous concepts

3. Use of previous case law for further development

4. Conclusion

16 Discrimination as a magnifying lens

1. Introduction

2. The relationship between Article 14and Protocol No. 12

3. Article 14as a magnifying lens

3.1 The autonomous nature of Article 14and the ambit doctrine

3.2 Three kinds of magnifying effect

3.3 When do the facts of the case fall within the ambit of a Convention right?

3.4 The ambit test as a ‘canary in the coal mine’

4. The ‘floodgates’ and the margin of appreciation

5. Conclusions

Index