We are happy to announce the results of our poll on the best and worst ECtHR judgment of 2016. For an overview of the shortlist of candidates, including a motivation for selecting them, see our previous blog post published on the occasion of the opening of the polls.
In light of the recent Oscars ceremony fiasco, we have made sure to double-check all votes. In the category of best judgment, the winner is… Continue reading →
The Strasbourg Observers are launching the annual poll for best and worst European Court of Human Rights judgment, 2016 edition!
This year, the pre-selection of nominees was particularly challenging. A diverse batch of 28 (!) judgments received nominations from our blogging team at the Human Rights Centre of Ghent University. Ultimately, our internal voting process led to the ten below nominees, across both categories.
It is now up to you, our readers, to elect the winner (best judgment) and loser (worst judgment) of 2016! The results will be announced next month.
Attentive readers will note that quite a large number of our nominees address asylum and migration issues. This not only reflects the ‘reality’ of today’s political and judicial scene in Europe. It also signals, in the category of best judgment, that we are impressed by how the European Court of Human Rights has remained, in the nominated cases, an independent stronghold against the populist tide that threatens to sweep migrants, asylum seekers and refugees away from Europe.
To refresh your memory on the nominated judgments – or introduce you to them – we have included brief summaries below the polls (please click ‘Continue reading’).
[the order of judgments in both polls is automatically randomized on each page visit]
By Corina Heri, PhD candidate at the University of Zürich / Visiting Scholar at Ghent University
The concept of vulnerability has had wide-ranging effects for the Strasbourg jurisprudence, although the European Court of Human Rights, in what appears to be a matter of conscious choice, has never defined it. Instead, the Court has opted for a flexible and reactive application of the concept in a broad array of cases under various Convention articles. This approach, which has been employed by the Court in deciding hundreds of cases to date, has recently benefitted from much-needed scholarly attention. It has also enjoyed further exploration in the context of Laurens Lavrysen’s recently-published Ph.D. thesis on Human Rights in a Positive State. Against the backdrop provided by these findings, the following will seek to shed some additional light on the Court’s approach to vulnerability-based positive obligations. Continue reading →
By Malu Beijer, researcher Radboud University Nijmegen
The concept of positive obligations has become a regular feature of the case law of the European Court of Human Rights (ECtHR) ever since the classic cases of Marckx v. Belgium, Airey v. Ireland and X. and Y. v. the Netherlands. The ECtHR has made very clear in this case law that the full and effective protection of fundamental rights requires states to take active measures. States cannot simply remain passive by complying only with their negative obligations.
In other systems of international human rights law and under national law, a similar concept of positive obligations can often be recognised. The same does not hold true for the protection of fundamental rights under EU law. The EU’s (relatively) more recent system of fundamental rights protection so far mainly has had a focus on negative obligations. Can it be established by the European Court of Justice (ECJ) that the EU institutions and the member states must fulfil positive obligations as well? In this post I will briefly explain some of my thoughts on this specific question which formed the topic of my PhD research. Continue reading →
I certainly agree with Dr. Laurens Lavrysen’s assessment that the concept of positive obligations has remained undertheorized in the existing literature and in this respect, his book constitutes an invaluable contribution aimed at filling the gap. There is much in Lavrysen’s Human Rights in a Positive State for human rights scholars, lawyers, students and both national and international judges to engage with and enjoy. The book offers an impressive review of recent judgments and demonstrates an excellent analytical rigor in its efforts to extract relevant principles and structure these in a clearer analytical framework. In this contribution, I would like rather focus on two issues: the analytical distinction between qualified and unqualified rights and, as related to the above, the proximity requirement, namely the proximity between State conduct and the harm sustained by the individual. Continue reading →
I am proud to announce the publication of my PhD “Human Rights in a Positive State – Rethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights”. In my PhD, I have exhaustively studied the concept of positive obligations in the case law of the European Court of Human Rights, on the basis of a corpus of 2618 cases in which the Court used the notion of positive obligations, identified through the Court’s HUDOC database. During my PhD research, I was particularly interested in how the Court distinguishes between the respective concepts of positive and negative obligations and how the choice to examine a case from the one or the other perspective influences the Court’s legal reasoning. Continue reading →