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How should one balance the freedom of expression and the prevention of violence? This article delves into the grey zone between hate speech and incitement to violence by assessing the jurisprudence of the European Court of Human Rights in cases of allegedly dangerous speech. Rather than labelling this case law as simplistic, as some critics even within the Court have done, it is shown that the jurisprudence reveals cleavages within the Court on whether to adopt a more or less consequentialist approach on the links between speech and violence. Freedom of expression cases should preferably be assessed on the merits under Article 10 ECHR since this allows for a balancing of the various interests involved. The application of the abuse of rights clause of Article 17 ECHR is for that very reason undesirable, in addition to its inconsistent use by the Court.
This assertion from the dissenting opinion of Judge Bonello in the Sejdić and Finci case of 2009 illustrates that there is discussion within the European Court of Human Rights on the Court’s role in transitions. Obviously, the situation at hand – the continuously tense aftermath of the bloody and traumatic war in Bosnia and Herzegovina – might be a very extreme example, but the wider salience of Judge Bonello’s remark should not be ignored. This book set out to question and analyse to what extent the European Court has developed a specific transitional jurisprudence. By looking at a broad range of issues – from freedom of religion to property rights and from the right to free elections to freedom of expression – a diversified picture emerges. This chapter draws together common threads from the preceding contributions and overviews the different settings in which arguments from transition have been permitted or denied.
The European Convention on Human Rights has been a standard-setting text for transitions to peace and democracy in states throughout Europe. This book analyses the content, role and effects of the jurisprudence of the European Court relating to societies in transition. It features a wide range of transitional challenges, from killings by security forces in Northern Ireland to property restitution in East Central Europe, and from political upheaval in the Balkans to the position of religious minorities and Roma. Has the European Court developed a specific transitional jurisprudence? How do politics affect the ways in which the Court's judgments are implemented? Does the Court's case-law itself become woven into narratives of struggle in transitional societies? This book seeks to answer these questions by highlighting the unique role of Europe's main guardian of human rights, the Court in Strasbourg. It includes a comparison with the Inter-American and African human rights systems.
‘Frankly, I do not believe that the fascist organizations … have any independent existence, outside the state apparatus’, wrote senator Miguel Castells in a magazine published in the Basque Country in 1979. Thirteen years later, as the Iron Curtain which had divided Europe for so long had for the most part been torn down, the European Court of Human Rights dealt with this case which touched upon a much less recent transition from authoritarianism to democracy.
In the article, Castells wrote about a series of unsolved murders in the Basque region. He claimed that the authorities refused to investigate who the murderers were and even asserted that the government was quite certainly behind these acts. It can be added that Castells??? article was published in a period which also marked the apex of ETA terrorist activity. The Basque Country was in a situation of turmoil, whereas Spain itself was tentatively trying out democracy after the first multi-party elections and a newly approved constitution in the previous years. In this context the state apparently deemed the article by Castells, a senator for the opposition, so dangerous that it had him prosecuted. He was convicted for insulting the government, by a court mostly consisting of judges appointed during the Franco regime. Subsequently, he took his case to the European Convention institutions in Strasbourg. The European Court of Human Rights found a violation of his freedom of expression.
This book is concerned with the role and contribution of the permanent regional judicial mechanisms – in Europe, Africa and the Americas – to improving human rights compliance in societies emerging from conflict or authoritarian rule. Many studies have contrasted the approaches of constitutional courts in such settings, or the ad hoc and sometimes quasi-judicial mechanisms instituted to navigate transitional obstacles. With few exceptions, however, there has so far been little recognition that the jurisprudence of these regional institutions is profoundly shaping and enriching the law of transitional justice. As critical sites of transitional normativity, the case law of the regional commissions and courts – particularly the European Court of Human Rights – deserves close attention.
This article focuses on state recognition in the European context and on the admission of states to the Council of Europe after the end of the Cold War. It argues that two global trends identified by John Dugard in the 1980s have continued since then: a common approach to state recognition has been adopted and the criteria for state recognition have increasingly been given normative content. This reflects that the constitutive theory of state recognition continued to be popular. The two trends have not automatically resulted in a more legal approach to the issues, as the case study of Bosnia and Herzegovina illustrates.
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