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Proving Discriminatory Violence at the European Court of Human Rights
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In Proving Discriminatory Violence at the European Court of Human Rights Jasmina Mačkić unveils the evidentiary issues faced by the European Court of Human Rights when dealing with cases of discriminatory violence. In that context, she evaluates the Court’s application of the standard of proof ‘beyond reasonable doubt’ and aims to answer the question whether that standard forms an obstacle in establishing the occurrence of discriminatory violence. In addition, she offers an assessment into the circumstances in which the burden of proof may shift from the applicant to the respondent state. The author also looks at the types of evidentiary materials that may be used by the Court in order to establish discriminatory violence.
Jasmina Mačkić, Ph.D. (1984), Leiden University, is Assistant Professor of Human Rights Law at that university. She has published articles and case notes on the topical theme of discriminatory violence.
1 Introduction 1 Discriminatory Violence as a Global Phenomenon 2 The Need for a More Significant Role for the ECtHR In Addressing and Combating the Phenomenon of Discriminatory Violence 3 Scope and Structure of this Book 4 Some Final Words 0n Methodology 2 Contextualising Discriminatory Violence within the Council of Europe 1 Introduction 2 The Substantive Legal Framework: Anti- Discrimination Law in the Council of Europe 3 General Features of Article 14 Echr and their Impact on Complaints of Discriminatory Violence 4 Important Taxonomies to Categorise Discrimination Complaints 4.1Formal and Substantive Equality 4.2Direct and Indirect Discrimination 5 Conclusion 3 Ordering Discriminatory Violence: Three Types of Complaints 1 Introduction 2 The Negative Duty of State Officials to Refrain from Inflicting Discriminatory Violence 3 The Positive Duty of State Officials to Effectively Investigate Discriminatory Violence and to Identify and Punish those Responsible 4 The Positive Duty of State Officials to Take Preventive Measures against Discriminatory Violence 5 The remaining Cases of Discriminatory Violence: Complaints Connected to Provisions other than Article 2 or Article 3 ECHR 6 Conclusion 4 The Collection of Facts and the Actors Involved in Fact- Finding at the ECtHR 1 Introduction 2 The legal Framework for the Examination of a Case by the ECtHR 3 How Applicants and Respondent States are Engaged in Fact- finding during the Procedure before the ECtHR 3.1Presenting an Application to the Court 3.2The Parties’ Obligation to Cooperate with the Court 4 Fact- finding Missions Conducted by the ECtHR 5 Contributions to Fact- Finding by External Actors 6 Conclusion 5 The Standard of Proof in Cases of Discriminatory Violence 1 Introduction 2 Some General Observations on The Notion of ‘Standard of Proof’ 3 Standards of Proof in ECtHR Case Law 4 ‘Beyond Reasonable Doubt’ in ECtHR Case Law 4.1The ECtHR Definition of ‘Beyond Reasonable Doubt’ and the Origins of this Standard of Proof 4.2Testing the ‘Beyond Reasonable Doubt’ Standard in Cases of Discriminatory Violence 5 Conclusion 6 The Distribution of the Burden of Proof in Cases of Discriminatory Violence 1 Introduction 2 Some General Observations on the ‘Burden of Proof’ 3 Presumptions and Inferences 4 The Influence of Presumptions and Inferences on the Distribution of the Burden of Proof in Violence Cases 4.1Cases in which Individuals were Injured, Died or Disappeared while in the Hands of State Agents 4.2Presumptions and Inferences in Cases in which Evidence Discloses an Administrative Practice 4.3Interim Conclusion 5 The Distribution of the Burden of Proof in Cases in which a Discriminatory Nature of Violence is Alleged 5.1The Circumstances Under which the Burden of Proof May Shift 5.2Exploring New Criteria to Shift the Burden of Proof in Cases of Discriminatory Violence 6 Conclusion 7 Evidentiary Material Used to Prove Discriminatory Violence at the ECtHR 1 Introduction 2 Admissibility of Evidence in ECtHR Proceedings 3 Factual Elements from the Domestic Case File Pointing to Discriminatory Violence 3.1Confessions 3.2Instructions 3.3Discriminatory Remarks 3.4Extremist Groups 3.5The Remaining Factual Elements 3.6Interim conclusion 4 Statistics 4.1General Views on Statistics as Evidence 4.2The ECtHR Approach: Statistics Gaining Ground as Evidence in Cases of Indirect Discrimination 4.3The Use of Statistics in Cases of Discriminatory Violence 5 Reports Issued by Intergovernmental Organisations and NGO s 6 Conclusion 8 Conclusion 1 Introduction 2 Discrimination’ and ‘Discriminatory Violence’ in ECtHR Case Law: A Call for a More Substantive Conception of Equality in Cases Concerning Discriminatory Violence 3 Most Notable Means of Gathering Facts and Evidence in the Context of Complaints of Discriminatory Violence at the Court 4 The Adequacy of the Evidentiary Framework in Cases of Discriminatory Violence 4.1Standard of Proof 4.2Burden of Proof 4.3Evidentiary Material 4.4Synopsis: Evaluating the Evidentiary Framework in ECtHR Cases of Discriminatory Violence 5 Epilogue and Outlook: The Ecthr as the Guardian of the Rights of Disadvantaged Groups Bibliography Index
All interested in human rights law and the European Court of Human Rights, and anyone concerned with issues related to hate crime and the law of evidence.