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In: The Development of Legal Instruments to Combat Racism in a Diverse Europe
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Abstract

It is often emphasised that the European Convention on Human Rights (echr or Convention) offers only minimum protection and states are allowed to offer additional guarantees. Indeed, Article 53 echr obliges the European Court of Human Rights (ECtHR) to respect such national guarantees if they go beyond the Convention. Similar provisions are usually included in human rights treaties as ‘priority clauses’, which mean that human rights bodies should respect more protective national laws. In such a reading, Article 53 could both add to and detract from the protection offered by the Convention, especially in cases where national and Convention rights clash. Based on an analysis of the Court’s case law, this paper shows that the Court does not rely on Article 53 in such conflicting rights cases, but rather prefers to use avoidance and balancing strategies. Instead, the Court uses Article 53 to reinforce national fundamental rights protection, thereby reducing the risk of harming the minimum level of protection provided by the Convention.

Open Access
In: European Convention on Human Rights Law Review
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In this study, an assessment model is developed to guide courts in deciding equal treatment cases. Such a model appears to be indispensable, since relevant equality provisions often do not offer much guidance as to the assessment of unequal treatment. This lack of guidance may lead to diverging approaches and outcomes, which is undesirable from the perspective of equality and legal certainty. The use of the assessment model developed in this study will improve judicial reasoning and enhance the legitimacy of equal treatment case law.
The general assessment model developed in this study is based on theoretical research after the standards that should be used in assessing cases against the principle of equal treatment, supplemented by an elaborate comparative analysis of the equal treatment case law in various legal systems. The result of this approach is the design of an assessment model that is both theoretically sound and workable in practice.

The Dutch edition of this book has been awarded with the Erasmus Study Prize 2003, the Max van der Stoel Human Rights Prize and the Constitutional Law Prize.
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Abstract

In many cases, the ECtHR is clearly asked to examine an individual decision, such as an administrative or court decision, but many other applications concern the reasonableness of interferences caused by national legislation. At present, there appears to be considerable confusion and controversy with the Court’s judges as to whether its review in the second category of cases should be concrete (focussing on the individual case only), abstract (focussing on the legislative system as a whole), or both (or a hybrid). This article presents a systematic and qualitative analysis of the Court’s case law to find out which approaches it takes to the reasonableness review of legislation in which types of cases. Based on the results of the analysis it further endeavours to answer the question of which approach would best fit the Court’s double role of delivering both individual and general justice.

Open Access
In: European Convention on Human Rights Law Review
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Abstract

The Covid-19 pandemic truly has been called a global crisis. To fight the spread of the virus, many States have introduced measures that seriously restrict or affect fundamental rights, ranging from procedural rights to the freedom of movement and the right to personal autonomy. In Europe, it is to be expected that many cases concerning such rights infringements eventually will come before the European Court of Human Rights (ECtHR). This contribution aims to give an insight into how the Court will likely give shape to its proportionality test in such cases. It thereby predicts that open balancing review – for which the ECtHR is famous – will play a much less important role than methods of reasoning by analogy and procedural review.

Open Access
In: The Law & Practice of International Courts and Tribunals

Abstract

In the present article, the authors provide a general overview of the academic and legal debate on the regulation of access to and use of genetic information by non-medical actors. Their aim is to give some insight in the academic views on the need to introduce specific genetics legislation and on the balance that might be struck between the various interests concerned. Furthermore, by analyzing relevant legislation and policy measures in the US and in Europe, they identify the issues that are deemed relevant in considering and, eventually, introducing regulative measures with respect to genetic information.

In: European Journal of Health Law