Actual Malice in the Inter-American Court of Human Rights

The Inter-American Court of Human Rights decided four cases in recent years that represent a positive step for freedom of expression in nations that belong to the Organization of American States. In 2004 and again in 2008, the court stopped short of adopting a standard that would require proof of actual malice in criminal defamation cases brought by public officials. In 2009, however, the court seemed to adopt the actual malice rule without calling it that. The court's progress toward actual malice is chronicled in this article. The article concludes that the court's decision not to explicitly use the phrase “actual malice” may be a positive development for freedom of expression in the Americas.     

Court Considerations in the Termination of Parental Rights: A Comprehensive Analysis of Israeli Court Decisions

Court decisions to terminate parental rights (TPR) have a major impact on parents and children, but the decision‐making process is unclear. Analysis of 261 Israeli TPR court cases indicated the dominance of considerations relating to normative parental functioning, the parents' ability to change, the impact of separating a child from his family, the parents' social normativity and educational ability. The legal considerations relate to the importance of the biological family, the necessity of adoption and the importance of a fair legal process. Insufficient consideration is accorded to cultural differences in parenting practices and the voice of the child.     

Coming to Terms with the Supranational: Translating for the European Court of Human Rights

Translators at the European Court of Human Rights, as at other international courts, have to deal with two different types of legal terminology in judgments and decisions: on the one hand, terms that would be used by a national practitioner in the relevant language, and on the other, the supranational language that has evolved in general international law or that is specific to the Court itself, being enshrined in its basic texts or case-law. The choice of translation will often be imposed by the source text, which may be a constraint; extensive knowledge of the Court’s autonomous terms and other “linguistic precedent” is vital if they are to be used accurately and consistently. The task of devising and using supranational terms to encompass domestic realities in as many as 47 States is not only that of the drafter; the linguist also has a crucial role to play in conveying the Court’s message in a culture-neutral manner.     

在押被告与律师会见通信权的保障与限制——以欧洲人权法院裁判为借镜

在押被告能够接触辩护律师并在不受监察的情况下进行会见通信,是达成有效辩护的关键,但基于监所秩序管理与刑事程序保全,又不能一概排除限制会见通信的措施。这里涉及不同目的之间的冲突和调和,在此欧洲人权法院裁判关于会见通信保障与限制的解释与运作值得参考。我国《刑事诉讼法》应确立自由交流权的立法基点,在押被告与辩护律师之间,应以会见通信不受监察为原则,限制会见通信为例外。监察措施应贯彻必要性和比例性原则,构建防止监察手段滥用的程序担保措施。     

The Humanization of Consular Law: The Impact of Advisory Opinion No. 16 (1999) of the Inter-American Court of Human Rights on International Case-law and Practice

This paper first introduces the process of the humanizationof international law and then analyses one specific aspect ofthis development: the humanization of consular law, with specialreference to the Advisory Opinion No. 16 (1999) of the Inter-AmericanCourt of Human Rights. The paper focuses on three specific points:(1) Consular Law beyond the purely inter-State outlook; (2)the right to information on consular assistance in the frameworkof the guarantees of the due process of law and (3) the humanizationof Consular Law in contemporary international practice.     

The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe

The recent case of Bosphorus Airlines v Ireland provided theEuropean Court of Human Rights (ECtHR) with an opportunity torefine further its relationship with the EU. In particular,the ECtHR was called upon to clarify when States could be heldresponsible for actions taken under the banner of the EU. Thisarticle examines the status quo prior to the Bosphorus judgment,and then scrutinises the judgment itself, focusing particularlyon the use and scope of the doctrine of ‘equivalent protection’to determine State responsibility. The doctrine as outlinedin Bosphorus is applied to some likely scenarios involving EUaction and its relative merits and disadvantages are discussed.The article also briefly addresses the further global implicationsof the judgment, namely for the legal accountability of theUN Security Council and the ongoing issue of responsibilityof international organisations under international law.     

Peacekeepers Facilitating Human Rights Violations: The Liability of the Dutch State in the Mothers of Srebrenica Cases

This article provides a critical reading of the judgments of The Hague District Court and especially The Hague Court of Appeal in the case of Mothers of Srebrenica v. the State of the Netherlands, which concerned the liability in tort of the Dutch State for facilitating the massacre of Bosnian Muslims in 1995. It engages with the courts’ considerations regarding the attribution of conduct to the State in UN peacekeeping operations, the extraterritorial application of human rights treaties, the State obligation to prevent genocide, and the State’s liability for damages. While not fully agreeing with the courts’ argumentation, the author concludes that the judgments contribute to the refinement of the law and practice of State responsibility in respect of wrongful acts committed in complex multinational peace operations.

     

Interview with Judge Luzius Wildhaber,President of the New European Court of Human Rights

On Tuesday, November 3, in Strasbourg, the new, full-time European Court of Human Rights will be inaugurated. Judges will be sworn in, including the new president of the court, Mr. Luzius Wildhaber of Switzerland.     

The Logics of Supranational Human Rights Litigation,Official Acknowledgment,and Human Rights Reform: The Southeast Turkey Cases before the European Court of Human Rights, 1996–2006

This article examines the domestic impact of supranational human rights litigation on acknowledgment of state violence in the context of macroprocesses of global governance. The article's argument is that the impact of supranational human rights litigation on the process of acknowledgment must be seen through counternarratives on state violence. The article undertakes a detailed textual analysis of the truth claims and denial strategies that emerged from the European Court of Human Rights proceedings on state violence during Turkey's struggle against the armed group the Kurdistan Workers Party (PKK). It assesses these in the context of the human rights reforms that were created following pressure from European-level governance processes. The article argues that attention must be paid to agency in acknowledgment and truth-telling processes, and points to the limits of technical-bureaucratic forms of human rights reform interventions in the context of state violence.     

保障与限制:对质询问权在欧洲人权法院的实践及其启示

欧洲人权法院在其审判实践中,对《欧洲人权公约》第6条第3款d项规定的对质询问权所应具备的公正要素,包括口头询问、证人出庭、平等武装以及官方义务进行了有条件的限缩,但同时也提出了唯一或决定性规则作为底线性保障。对于一项最低限度的基本权利,欧洲人权法院的保障与限制,无疑关乎其对公正审判标准的界定。对质询问权在欧洲人权法院的实践对我国的司法实践无疑也具有借鉴意义。     

规模与内部治理——中国法院编制变迁三十年(1978—2008)

中国法院编制从1978-2008扩展了5.5倍,法院内部编制规模的激增,导致中国法院内部出现坚硬的科层化。这不仅导致结案上的内卷化,而且使整个法院、法官被接受性降低。传统对策均将案件数量增加作为因果性前提以进行应对,但实际导致法院规模扩大的真实原因在于法院事权的扩大。司法的边界划定,不仅是一个司法问题,而且是一个政治问题。