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European Convention (european + convention)
Selected AbstractsBetween Immigration and Policing: Cross RecognitionEUROPEAN LAW JOURNAL, Issue 2 2004Andrew Nicol The Dublin Convention of 1990 addressed some of the problems which this policy created, but left others unresolved. Domestic legislation has progressively reduced the opportunities for challenging safe third-country removals, especially to an EU state. The incorporation of the European Convention on Human Rights into UK law has generated new possibilities for challenging safe third-country decisions where removal might damage physical or mental health. Articles 3 and 8 have been invoked in particular. The Dublin machinery established ,rules' to decide which member state was responsible for considering the asylum claim and the procedure to be followed. The article examines why the UK courts have said that these provisions are not justiciable in the English courts. Finally the article considers whether the experience with Dublin provides any useful guidance as to the approach that will be taken to European arrest warrants and extradition requests. [source] The General Provisions of the Charter of Fundamental Rights of the European UnionEUROPEAN LAW JOURNAL, Issue 4 2002R. Alonso García The Charter of Fundamental Rights of the European Union provides the Union with a ,more evident' (as the European Council of Cologne asked for) framework of protection of the individuals before the public authorities within the European context, after more than thirty years (since the Stauder Case) of full confidence in the leading role played by the jurisprudence of the Court of Justice of the European Communities. This new normative catalogue of fundamental rights (included the so called ,aspirational fundamental rights') implies one more instrument of protection which has to find its own place with regard to the protection afforded by the national Constitutions and the international agreements on human rights, particularly the European Convention on Human Rights, which are already a privileged source of inspiration for Court of Justice of the European Communities. It is the main objective of the General Provisions of the Charter to clarify which is that place and the relationship with those other levels of protection as managed by their supreme interpreters (i.e., the Constitutional,or Supreme,Courts of the Member States of the Union and the European Court of Human Rights). [source] The politics of Europe 2002: flexibility and adjustmentINDUSTRIAL RELATIONS JOURNAL, Issue 5 2003Erik Jones The European Union entered a new phase of integration in 2002. The single currency, the European Convention, and enlargement signalled progress. The conflict over the Stability and Growth Pact, the tensions between the member states, and the political turmoil in a number of core countries suggested retreat. This paper examines the resulting pattern of integration. It argues that the European Union is becoming more legalistic than leader-oriented, and that it rests on common principles rather than accepting the imposition of some grand design. Such a European Union cannot challenge the United States for global leadership. But it is likely to prove stable nonetheless. [source] Thinking about the Recent Past and the Future of the EU,JCMS: JOURNAL OF COMMON MARKET STUDIES, Issue 2 2008GEORGE TSEBELIS After the referendums in France and the Netherlands, the European Union was in disarray. However, political elites in all countries were insisting in the adoption of the Treaty Establishing a Constitution for Europe, which in turn was a slight modification of the text adopted in the European Convention. The solution was found in the IGC of Brussels in 2007, where the substance of the Treaty was adopted, and symbolic details (flag, anthem) were dropped out. The article explains the impact of the institutions adopted in the Convention, and argues that these institutions would help political decision-making in the EU. It then explains how such significant results became possible (because of the important role of the Presidium in terms of agenda-setting). Finally it argues that the text of the Constitution became a focal point for all negotiating governments. This is why elites came back to it despite the public disapproval of the referendums. [source] ,Condemn a Little More, Understand a Little Less': The Political Context and Rights' Implications of the Domestic and European Rulings in the Venables-Thompson CaseJOURNAL OF LAW AND SOCIETY, Issue 3 2000Deena Haydon In 1993 Jon Venables and Robert Thompson were found guilty of the abduction and murder of two-year-old James Bulger. Aged ten at the time of the offence, the children were tried in an adult court before a judge and jury amidst a blaze of publicity. They were named by the trial judge and sentenced to detention at Her Majesty's Pleasure [HMp]. The Home Secretary set a minimum tariff of fifteen years imprisonment. In December 1999 the European Court of Human Rights held that, in the conduct of the trial and the fixing of the tariff, the United Kingdom government was responsible for violating the European Convention on Human Rights. This article maps how the case became a watershed in youth justice procedure and practice influencing Labour's proposals for reform and the 1998 Crime and Disorder Act. Examining the progression of appeals through the domestic and European courts, it explores the dichotomous philosophies separating the United Kingdom and European approaches to the age of criminal responsibility, the prosecution and punishment of children, and the influence of political policy on judicial decisions. Finally, the ,backlash' against ,threatening children', the affirmation of adult power and knowledge, and the implications of the European judgments in the context of a rights-based agenda are analysed. [source] Monetary remedies for breach of confidence in privacy casesLEGAL STUDIES, Issue 3 2007Dr Normann Witzleb In Campbell v MGN Ltd, the House of Lords endorsed an expansive interpretation of the breach of confidence action to protect privacy interests. The scope and content of this transformed cause of action have already been subject to considerable judicial consideration and academic discussion. This paper focuses on the remedial consequences of privacy breaches. It undertakes an analysis of the principles which govern awards for pecuniary and non-pecuniary loss, the availability of gain-based relief, in particular an account of profits, and exemplary damages. Even in its traditional scope, the monetary remedies for breach of confidence raise complex issues, mainly resulting from the fact that this doctrine draws on multiple jurisdictional sources such as equity, contract and property law. The difficulties of determining the appropriate remedial principles are now compounded by the fact that English law also aims to integrate its obligation to protect the right to privacy under Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 into the conceptual framework of the breach of confidence action. The analysis provided in this paper supports the contention that not only the scope of the cause of action but also important remedial issues are likely to remain in doubt until the wrong of ,misuse of private information' is freed from the constraints of the traditional action for breach of confidence. A separate tort would be able to deal more coherently and comprehensively with all wrongs commonly regarded as privacy breaches. [source] Seeking the principle: chancels, choices and human rightsLEGAL STUDIES, Issue 2 2002Ian Dawson Chancel liability is an ancient property right, enforced by a Parochial Church Council, attaching to certain former rectorial lands. It requires a landowner to bear the cost of repair of the parish church chancel. The right poses particular problems for a purchaser, not least because it is hard to discover and is not limited to the value of the land. A recent decision of the Court of Appeal has found that a Parochial Church Council falls within section 6 of the Human Rights Act 1998 as a public authority, and that chancel liability infringes article I of the First Protocol of the European Convention on Human Rights. This paper will dispute the rationale used by the Court of Appeal, and in so doing will argue that whilst chancel liability is outmoded, widely regarded as incongruous and does not bear scrutiny in its modern context, it should nevertheless be removed on a principled basis, avoiding unwanted repercussions elsewhere in the law. [source] Osman and police immunity in the English law of tortsLEGAL STUDIES, Issue 3 2000Paula Giliker This article examines and questions the nature of police immunity from claims for negligence in the investigation and suppression of crime, as stated by the House of Lords in Hill v Chief Constable of West Yorkshire. This issue has been discussed before the European Court of Human Rights in Osman v United Kingdom, where the court held that a blanket application of the immunity was contrary to art 6 of the European Convention on Human Rights. This article will argue that this decision does not overturn the basic public policy principles for the immunity stated in Hill and that further examination of this area of law is required. It is submitted that if the law is considered in terms of proximity rather than in terms of public policy immunity, a clearer understanding of the principles underlying this area of law can be reached together with the desirable goal of removing the term ,immunity' from this area of law. [source] Is Constitutional Politics like Politics ,At Home'?POLITICAL STUDIES, Issue 4 2008The Case of the EU Constitution A large number of delegates from different institutional levels within the EU have achieved a remarkable consensus on a draft constitution. Has this consensus been made possible because the nationally predominant left,right divide was only weakly present during the deliberations of the delegates? Left,right differences have been analysed by means of a content analysis on submitted documents during the European Convention. The data analysis confirms our assumption that the left,right distinction was relevant, although not very dominant. The draft constitution did not take a mean position on left and right issues, but in fact puts more emphasis on substantial goals related to both left and right, giving an equal weight to both anti-poles. However, if we exclude the Charter of Human Rights, the draft constitution appears to be strongly tilted to the right. The analysis also shows that party family differences did affect the process of coalition building during the Convention, since more than half of all documents have been submitted together with at least one member of the same party family and/or with one family member close by. Our analysis also indicates that the process of consensus building was enhanced by the absence of many extremist and new parties during the Convention. This may have enhanced agreement on the Constitution, but later it became problematic for the domestic democratic process and for the acceptance of the Constitution in some countries, such as France and the Netherlands, especially since some of the excluded parties have actively and successfully mobilised voters to vote against the Constitution. [source] A Tort-Based Approach to Damages under the Human Rights Act 1998THE MODERN LAW REVIEW, Issue 5 2009Jason N. E. Varuhas This article argues that a strong case can be made for departing from the current approach to damages under the Human Rights Act 1998, and for the adoption of an alternative tort-based approach. The article critically analyses the English courts' arguments against adopting a tort-based approach and demonstrates that neither the Act nor the European Convention on Human Rights militate against such approach. It makes a positive case for a tort-based approach, arguing that the law of damages in tort provides an appropriate model for damages under the Act as a matter of principle given the common functions and protected interests that underpin both areas of the law. Further, tort law offers an established and elaborate corpus of principles to draw on, which can readily and naturally be read across to the human rights context. A tort-based approach would also promote consistency across English law, while generally affording greater protection to human rights than the English courts' current approach. [source] Remanding Women in Custody: Concerns for Human RightsTHE MODERN LAW REVIEW, Issue 3 2007Elaine Player Concern about the increasing population of women in prison has tended to focus on the sentencing of female offenders. It is often overlooked that about one in five women held in custody is there on remand, awaiting trial or sentence, and that most of them will not receive a prison sentence at the end of the process. This article examines the legal grounds for a custodial remand and explores the extent to which individual rights guaranteed under the European Convention are adequately protected. It is argued that women are particularly disadvantaged by the laws governing bail and by their practical application in the criminal justice system; and that the pre-trial detention of so many women routinely violates the spirit of the Convention by allowing questionable claims to social utility to prevail over the right to liberty and to a fair trial. [source] The Case for a Rational Reconstruction of Consent in Criminal LawTHE MODERN LAW REVIEW, Issue 2 2007Catherine Elliott This article argues for consistency in criminal law and the need for ,rational reconstruction' of the law where necessary to achieve this. It focuses Parliament's failure to respect the need for consistency by passing a statutory definition of consent in the Sexual Offences Act 2003 which appears to apply only to sexual offences. As a result, the law on consent risks being a patchwork of statute and ad hoc case law, without any overarching principle to deal with new situations and different offences. The consequent lack of certainty, accessibility, predictability and fairness is compared to the standards of the European Convention on Human Rights. The statutory definition of consent in the context of the sexual offences is assessed critically as a model which could be used in offences against the person and property offences. The article concludes that until Parliament responds to the need for certainty and consistency by legislating on consent, there can be no rational reconstruction of consent under the Sexual Offences Act 2003. [source] The Enjoyment of Rights and Freedoms: A New Conception of the ,Ambit' under Article 14 ECHRTHE MODERN LAW REVIEW, Issue 5 2006Aaron Baker, Article first published online: 16 AUG 200 Article 14 of the European Convention on Human Rights, as applied by the UK judiciary under the Human Rights Act 1998, is in danger of becoming as ,parasitic' as it is often described. Judges have inappropriately narrowed the scope of the ,ambit' of other Convention articles, and thus limited the number of claims to which Article 14 can apply, by defining it according to considerations more properly weighed in a justification analysis incorporating proportionality. The emerging approach departs from Strasbourg jurisprudence, and fails to give full effect to the language and intent of Article 14. This trend need not continue. This article begins the process of fashioning a new conception of the ambit of Convention articles: one that could change the fortunes of Article 14 cases in the UK, but that flows naturally from the precedents of the European Court of Human Rights, and gives effect to the spirit of the HRA. [source] Protection of Property Rights Within the European Convention on Human RightsTHE MODERN LAW REVIEW, Issue 4 2005Article first published online: 1 JUL 200, M.A. Sanderson First page of article [source] The Presumption of Innocence and the Human Rights ActTHE MODERN LAW REVIEW, Issue 3 2004Victor Tadros There has recently been a proliferation of case law dealing with potential inroads into the presumption of innocence in the criminal law of England and Wales, in the light of article 6(2) of the European Convention on Human Rights. This article is concerned with the nature of the presumption of innocence. It considers two central issues. The first is how the courts should address the question of when the presumption of innocence is interfered with. The second is the extent to which interference with the presumption of innocence may be justified on the grounds of proportionality. It is argued that the courts have not developed the appropriate concepts and principles properly to address these questions. [source] Police Complaints and Criminal ProsecutionsTHE MODERN LAW REVIEW, Issue 3 2001Graham Smith The police complaints process is the sole means by which criminal proceedings are initiated against police officers after allegations by members of the public that they were the victim of an offence committed by officers when in the execution or purported execution of their duty. Yet this state of the law has hardly figured in recent debate, which has seen the complaints process examined almost exclusively as the preliminary stage of the disciplinary process. This paper considers police complaints, the criminal liability of the officer and the implications for reform of the process after incorporation of the European Convention on Human Rights. [source] | |||||||||||||