No description available.

O principal objetivo da presente dissertação é o de descrever o iter processual perante a Corte Interamericana de Direitos Humanos. Sendo estabelecida esta meta, a primeira etapa da pesquisa está voltada para elucidação sobre a historicidade dos direitos humanos do mundo. Na seqüência, o estudo trata do Acesso à Justiça e do Processo Justo, com compõem a linha mestra na qual a pesquisa se embasa. Considerações sobre a formação do sistema interamericano são feitas no terceiro capítulo, quando então busca-se ingressar no exame mais detido sobre a Comissão Interamericana de Direitos Humanos e a Corte Interamericana de direitos Humanos. Todo o Capítulo 7 está voltado para o estudo das etapas do procedimento perante a Corte. No Capítulo 8, finalmente, são feitas as considerações sobre as sentenças proferidas pela Corte e sobre a supervisão de seu cumprimento. Trata-se de uma obra voltada para a promoção e o desenvolvimento científico do sistema interamericano de defesa dos direitos humanos no Brasil. / The main objective of this dissertation is to describe the procedure before the Inter-American Court of Human Rights. Fixed this goal, the first step is devoted to elucidating the History of the Human Rights in the world. In the sequence, the research deals with the Access to Justice and the procedural fundamental guaranties, the basis of the development of this research. Considerations about the creation of the Inter-American system are made in the Third Chapter, when we can examine, deeply, the Inter-American Commission of Human Rights and the Inter-American Court of the Human Rights. The entire Chapter 6 intends to study the steps of the procedure before the Court closely. In the Chapter 8, finally, are made some considerations about the adjudication and the stage of implementation of the decisions issued by the Court. It is a research dedicated to promoting scientific development of the Inter-American system of Human Rights in Brazil.

No description available.

O principal objetivo da presente dissertação é o de descrever o iter processual perante a Corte Interamericana de Direitos Humanos. Sendo estabelecida esta meta, a primeira etapa da pesquisa está voltada para elucidação sobre a historicidade dos direitos humanos do mundo. Na seqüência, o estudo trata do Acesso à Justiça e do Processo Justo, com compõem a linha mestra na qual a pesquisa se embasa. Considerações sobre a formação do sistema interamericano são feitas no terceiro capítulo, quando então busca-se ingressar no exame mais detido sobre a Comissão Interamericana de Direitos Humanos e a Corte Interamericana de direitos Humanos. Todo o Capítulo 7 está voltado para o estudo das etapas do procedimento perante a Corte. No Capítulo 8, finalmente, são feitas as considerações sobre as sentenças proferidas pela Corte e sobre a supervisão de seu cumprimento. Trata-se de uma obra voltada para a promoção e o desenvolvimento científico do sistema interamericano de defesa dos direitos humanos no Brasil. / The main objective of this dissertation is to describe the procedure before the Inter-American Court of Human Rights. Fixed this goal, the first step is devoted to elucidating the History of the Human Rights in the world. In the sequence, the research deals with the Access to Justice and the procedural fundamental guaranties, the basis of the development of this research. Considerations about the creation of the Inter-American system are made in the Third Chapter, when we can examine, deeply, the Inter-American Commission of Human Rights and the Inter-American Court of the Human Rights. The entire Chapter 6 intends to study the steps of the procedure before the Court closely. In the Chapter 8, finally, are made some considerations about the adjudication and the stage of implementation of the decisions issued by the Court. It is a research dedicated to promoting scientific development of the Inter-American system of Human Rights in Brazil.

The European Convention on Human Rights (ECHR) – supervised by the European Court of Human rights (ECtHR) – coexists with other normative (human rights) instruments that have been created at the national, regional, and international level, both by State and non-State actors. The ECHR represents one legal piece of this normative ‘jungle’, characterized by legal ‘fragmentation’. Whereas a lot is said about the negative aspects of this diverse world, this doctoral thesis aims to focus on its positive sides. To support its interpretation and application of the ECHR, the Strasbourg Court makes reference to a diverse range of instruments other than the ECHR, which we call external instruments. The Grand Chamber-case of Demir and Baykara v. Turkey of 12 November 2008 provides a rare overview of the characteristics of this ‘referencing practice’. In this judgment, the Court included a separate heading to specifically explain its interpretative use of international law, discussing the legal basis as well as the type of instruments that it considers relevant. Two major conclusions follow from the Court’s explanations: firstly, it puts external referencing in the light of some rules on interpretation provided in the Vienna Convention on the Law of Treaties (VCLT) (particularly in Article 31 paragraph 3 (c) VCLT); secondly, it stresses that soft and non-ratified external instruments might equally offer support for (evolutively) interpreting the ECHR. These statements are controversial; the Court has been criticized for misinterpreting the rules of the VCLT, for not well justifying its references as well as for exceeding its powers by incoherently relying on (non-binding) external materials for interpretative purposes.The case of Demir and Baykara v. Turkey left many questions open in respect of the importation of external instruments. There is some confusion about the functions and the weight of (non-binding) external instruments in legal reasoning. In addition, the justificatory arguments developed in this case lack precision and persuasiveness. Addressing these gaps, this study firstly offers an elaborate ‘mapping’ of the usage of external instruments by the ECtHR. For that purpose, all references in each Grand Chamber-case since Demir and Baykara v. Turkey of 12 November 2008 (until the end of 2015) have been analyzed and categorized. Secondly, this work develops arguments to better justify the Court’s practice of using external instruments. Both from a legality and a users’ perspective, this thesis demonstrates how external referencing may (under certain conditions) be a valid method to give meaning to the provisions in the ECHR. The ‘mapping’ of the referencing practice demonstrates that, to support the interpretation and application of the Convention in the ‘law’-section of the decision, external instruments have been invoked by the Grand Chamber in almost 70 percent of the examined cases. This interpretative technique covers a wide variety of instruments, diverging according to their origin as well as to their scope ratione materiae, ratione personae and ratione loci. The legal status of the instruments constitutes an additional root of diversity; the ECtHR imports legal instruments that have been ratified by the Member States, instruments that have not been ratified by some of the Member States and/or by the respondent State, soft instruments created by politically (non-)representative bodies, and finally, case law developed by other (quasi-)judicial bodies. The Grand Chamber references these instruments for different purposes: to dismiss their content, to establish interpretative rules, to support the interpretation of notions and requirements of the Convention, to enable the creation of harmony between the Convention and external legal requirements, or to consider a State’s freedom of manoeuvre when applying the ECHR. An example of a contested – but rather rare – usage of external instruments consists of comparing a mixture of binding and non-binding instruments in order to progressively evolve (and change) the Court’s case law. Overall, however, the Grand Chamber adopts a rather traditional approach to its interpretative ‘sources’, not according to non-binding instruments an independent decisive weight.In the Grand Chamber cases issued after Demir and Baykara v. Turkey, the Court did not undertake efforts to further justify and explain its referencing practice. In our view, two provisions might nonetheless operate as valuable vehicles to enhance the legality of some references. It concerns, more particularly, Article 31 paragraph 3 (c) VCLT, inciting the Court to take into account external applicable norms, and Article 53 ECHR, offering a ‘safeguard’ for human rights. Article 31 paragraph 3 (c) VCLT is regularly used by the Court in connection to the method of ‘harmonious interpretation’, accommodating the obligations of the ECHR with external obligations (that risk to conflict with the Convention). We agree that Article 31 paragraph 3 (c) VCLT – covering a principle of ‘systemic integration’ – offers a legal basis for a coordinative integration of external applicable requirements. Some caution is nonetheless required; the creation of convergence between the ECHR and external legal domains should not supersede the aim of effective and progressive human rights protection. Therefore, when a conflict arises between the ECHR and an external provision, this should be clearly acknowledged instead of being artificially ignored under a pretext of ‘harmonisation’ and ‘anti-fragmentation’. Subsequently, the conflict should be solved by means of ‘hierarchical integration’ (giving precedence to human rights law) rather than by ‘coordinative integration’.Although the Court references Article 31 paragraph 3 (c) VCLT to support harmonious interpretation between the ECHR and external instruments outside the human rights domain, this case law study demonstrates that it does generally not cite this provision in respect of references to human rights catalogues other than the ECHR. For that reason, a criticism claiming that the Court misuses Article 31 paragraph 3 (c) VCLT to expand the ECHR on the basis of external higher human rights provisions, largely misses ground. This does not mean, however, that Article 31 paragraph 3 (c) VCLT has no relevance in respect of the importation of other human rights catalogues. Although this does not accord with the Court’s general practice, we are of the opinion that Article 31 paragraph 3 (c) VCLT mandates the Court to integrate (higher) protection standards applicable in all Member States of the Council of Europe. In other words, the ideal of ‘systemic integration’ is not only relevant in relation to the landscape of (general) international law, but should also permeate the domain of human rights law. As a harmonizing principle, it is supposed to encourage the Court to take account of ratified external human rights catalogues, including their authoritative interpretation by external monitoring bodies. Article 53 ECHR supports this argument too. This provision offers a human rights safeguard ensuring peaceful coexistence between the ECHR and higher protection standards. The message of Article 53 ECHR towards the Strasbourg judges is twofold. In its procedural dimension, the Court should use it directly, to sanction a State that, on the national level, did not give precedence to the highest applicable human rights standard. In its substantive dimension, this provision has effects similar to those of Article 31 paragraph 3 (c) VCLT. When higher and binding human rights standards are applicable in all Member States, Article 53 ECHR obliges the Court to substantively integrate them into its interpretation of the ECHR. In addition, we argue that Article 53 ECHR offers a symmetric human rights safeguard, preventing a downward evolution of the ECHR on the basis of external human rights instruments offering lower standards. The proposed interpretation of Article 53 ECHR is innovative, yet controversial; so far, the Court has not used it in this manner. In line with Articles 31 paragraph 3 (c) VCLT and 53 ECHR, we argue that external instruments, under certain conditions, exercise a binding authority. Apart from that, referencing could be exercised in an optional manner, for instance in order to support argumentative purposes such as ‘evolutive’, ‘practical and effective’, and ‘autonomous’ reasoning and/or the establishment of a ‘margin of appreciation’. Essentially, these interpretation principles are covered by a holistic reading of the rules of the VCLT. A concept that catches well a combined reading of the rules of the VCLT, without losing sight of the specificity of human rights law, is the search for ‘opinio juris under the treaty’. Under this interpretative framework, an emerging or an ambiguous State consensus may suffice to develop a dynamic interpretation of the ECHR, provided that the incomplete consensus is confirmed by an opinio juris. To establish an emerging or ambiguous State consensus, ‘hard’ and ratified legal instruments (of national or international origin) are of particular relevance. In addition, a wide variety of (non-binding) external instruments might be useful to demonstrate the opinio juris. Besides legal provisions, some other, less formal, users’ arguments may validate some aspects of the referencing practice. The usage of external human rights catalogues – possibly containing higher protection standards, rights of other ‘generations’, or more specialized and specific provisions – contributes to the creation of human rights that are effective, universal and indivisible. This serves the rights holders who have an interest in equal treatment by a law that operates as a ‘ius gentium’, and in an adjudication process that does justice to all specificities of their identity and lived experiences. In addition, referencing could contribute to progressively evolve the protection of human rights. The referencing practice also enhances the coherence of the system, which is beneficial for ‘legal certainty’ vis-à-vis all users of human rights. Moreover, external referencing may contribute to a more nuanced and ‘shared’ decision-making, inspired by the positions and insights of various actors. Indeed, by means of comparative law, judges can build a dialectic network of mutual influences and communicative enrichment on a global scale. When we acknowledge that it is the Court’s task to translate pluralism in balanced outcomes and to canalize the different interests underlying a case, the importation of external views from across the globe may help the Court is assuming that responsibility. The Strasbourg judges find particularly valuable tools in external instruments. Not only could their usage enhance the procedural economy and the deformalization of the decision-making process, external citations may also make a reasoning more convincing and authoritative towards the audience. However, these benefits only play to the extent that external referencing is transparent, consistent and systematically relies on a solid legal framework.To optimize the justification of the referencing practice, this doctoral thesis recommends the Court to better embed its external citations in both formal and informal arguments. We have done several suggestions as to how such arguments might be developed in practice. Their use could boost the valid usage of external instruments, which, under certain conditions, offers good opportunities for a persuasive interpretation and application of the ECHRWe started our research with a sketch of the present normative environment; it is disordered and can be metaphorically compared to a jungle. The Strasbourg judges walk through this area and use lianas to make connections between all elements that compose this forest. Through their referencing practice, they communicate, learn, and argue. In an ecosystem, all organisms are dependent on one another; they cannot survive in isolation. Following the rules of nature, the organisms mutually profit from each other’s existence and finally, provide each other with oxygen. In order to be good rangers in this jungle, the Strasbourg judges should recognize and acknowledge the existence and the value of all the other organisms. In addition, to ensure a high degree of balance in the ecosystem, they should keep an eye both on the system’s rules (legality) and on the views and interests of those that benefit from the system (the users of human rights). By handling the lianas in such manner, the Court contributes to more coherence of the system (combating ‘fragmentation’) and caters for the users’ needs. This does not mean that one day, the jungle will be turned into a nicely organized cornfield. Some diversity in global times is inevitable and necessary. After all, it is the chaotic context that offers us tools to advance the law, to persuade the public, etc. The art is not to replace pluralism by unity, but to find a balance between divergence and convergence by creating a form of justice that is shared by all. / Doctorat en Sciences juridiques / info:eu-repo/semantics/nonPublished

Partout présentes au cœur de la jurisprudence européenne des droits de l'homme, les valeurs fondamentales des sociétés démocratiques constituent un sujet d'étude pertinent pour apprécier dans quelle mesure ces valeurs sont mobilisées et si elles participent d'une interprétation axiologique de la Convention européenne des droits de l'homme. Simple rappel rhétorique ou véritable outil argumentatif, le recours aux valeurs dans la jurisprudence de la Cour EDH mérite ainsi d'être analysé au travers du prisme de l'interprétation de la Convention. A côté de l'interprétation téléologique, des interprétations évolutive et consensuelle, aucune étude n'a jusqu'alors recherché à systématiser la référence aux valeurs des sociétés démocratiques pour tenter d'en déduire une interprétation axiologique. Mais alors que le juge européen multiplie les références aux valeurs dans ses décisions, il y a néanmoins lieu de constater que l'utilisation de ces valeurs est concurrencée par d'autres politiques jurisprudentielles plus contemporaines et soucieuses des attentes actuelles des populations, de la revendication libertaire individualiste de plus en plus prégnante, et du nécessaire respect du principe de subsidiarité. Phénomènes qui s'accommodent difficilement d'une protection conservatrice de valeurs communes aux Etats parties à la Convention européenne des droits de l'homme. / Everywhere in the legal precedents of the European court of human rights (ECHR), fundamental values of democratic societies are a relevant study subject to understand in which part the values are used and if they participate of a specific interpretation of the European convention based on axioms defense's. Simple rhetoric use or true argumentative tool, values resort's in the legal precedents of the ECHR need to be appreciated as an isolate interpretation method. Next to teleologic, evolutive, and consensual interpretative methods, none study try until then to systematize the resort of fundamental values of democratic societies by the judge and deduct of the European court case law the existence of a specific interpretation based on values defense's. If the European judge multiplies the resorts of values in case law, we have to notice that utilization of values competes with others interpretative methods, more contemporary, and respectful of actual societal expectations, individual claims and to enforce the subsidiarity principle. All social facts and jurisdictional necessities which are difficult to conciliate with requirement of a conservative protection of common values of the contracting States.

In this article I develop a normative theory of the subsidiarity principle in international adjudication, which seeks to offer a balanced answer to the question of to what extent is it legitimate for a body such as the European Court of Human Rights to interfere with the national criteria in the face of a complaint on conventional rights violation. In contrast with demands for greater deference to states in both Europe and Latin America, based on a statist idea of subsidiarity, I articulate a «cooperative» understanding of the ideas of human rights and the principle of subsidiarity, linking them to Buchanan’s notion of ecological legitimacy. The proposal I defend leads to a division of institutional labor within regional human rights systems that increases the legitimacy of all the institutions involved. At the same time, I devote the last part of the paper to implement such cooperative view, on the one hand, showing the importance of an incremental logic in the effective protection of human rights and, on the other hand, offering a rationalized version of the national margin of appreciation doctrine. / En este trabajo desarrollo una teoría normativa del principio de subsidiariedad en la adjudicación internacional que pretende ofrecer una respuesta equilibrada a la pregunta de hasta qué punto es legítimo para un órgano como el Tribunal Europeo de Derechos Humanos interferir en el criterio estatal cuando valora una denuncia por violación de derechos convencionales. Frente a las demandas de una mayor deferencia hacia los Estados que encontramos tanto en Europa como en Latinoamérica, basadas en una idea estatista de la subsidiariedad, articulo una concepción «cooperativa» de los derechos humanos y del principio de subsidiariedad, uniéndolas a la idea de legitimidad ecológica sugerida por Buchanan. La propuesta que defiendo conduce a una división del trabajo institucional dentro de los sistemas regionales de derechos humanos que aumenta la legitimidad de todas las instituciones involucradas. Al mismo tiempo, desarrollo una forma de implementar esta concepción cooperativa, por una parte, mostrando la importancia de una lógica incremental en la protección efectiva de derechos humanos y, por otra parte, ofreciendo una versión racionalizada de la doctrina del margen de apreciación estatal.

Given the unprecedented medical progress combined with longer life expectancies, the right to die has become one of the main contemporary social issues. The objective of the thesis titled "The Right to Die in Light of European System of Protection of Human Rights" is to present conclusions in following matters: inclusion of the right to die in European human rights system and addressing the right to die before the European Court on Human Rights. Though the right to die can take on many forms, two basic categories of such are euthanasia and assisted suicide on one hand and withdrawal of treatment on the other. First of all, the thesis is concerned with characteristics of individual forms of the right to die. It focuses primarily on the difference between those two categories i.e. the intention of the action, for such distinction forms the basis of the European system of protection of the right to die as well as ECHR case-law. The right to die is provided for by the European human rights system to some extent. The thesis therefore focuses on the most important European acts pertinent to this area. Neither European Convention on Human Rights nor Convention on Human Rights and Biomedicine establishes the right to die explicitly, yet several forms can be derived by interpreting them. Conversely, the...

The aim of this diploma thesis is the analysis of the connection between the protection of human rights to environment of the certain quality and the protection of the environment itself. The diploma thesis is divided into three chapters. The first chapter is focused on theoretical basis of the topic, especially the relation between two areas of law - international environmental law and human rights law, concerns advantages and disadvantages of the approaches to this topic, and definitions of the most important terms, including different use of these terms by the individual authors. The second chapter outlines the evolution of these rights in the hard law and soft law universal international agreements with the overlap into the regional systems of human rights protection. The first part of this chapter relates to the documents about substantive rights and the second part examines the procedural documents with special reference to the Aarhus Convention. The third chapter analyzes the case law of the European Court of Human Rights in detail; this chapter is divided into three parts. The first one contains the explanation of the common features of decisions connected to the protection of environmental human rights. The second one describes the evolution of environmental case law connected to the...

Proceedings before the European Court of Human Rights and their reform The purpose of this thesis is to analyse and evaluate the proceedings before the European Court of Human Rights. This Court that exists within the Council of Europe is the guardian of guaranteed human rights and fundamental freedoms defined in the European Convention on Human Rights. Under this Convention an individual is entitled to submit an application to the Court and seek for the protection of his rights that were violated by one of the Member states. One of the conditions that ensure this protection is an effective and adequate proceedings before the Court. At present, the Court has to face many problems that are able to put this human rights protection in danger. Therefore the Member states decided to initiate a reform of the Court and its proceedings. The basic goal of this reform process is to ensure the long-term efficiency of the proceedings. This thesis analyzes the outcomes of this reform and how it affects the current proceedings. Key words: the European Court of Human Rights, proceedings, reform, workload, caseload