Prisoners' Families and the Regulation of Contact

This article explores HM Prison Service policy and the impact of case law on the rights of prisoners to family contact. First, state provision and policy for prisoner-family contact is reviewed and the constraints imposed on contact over the past decade are explored. A number of legal challenges to these constraints have been made recently and, drawing on domestic case law and challenges in the European Court of Human Rights we explore the nature of prisoners' rights of contact in prison. This analysis shows that while fathers' rights for indirect contact are upheld, their rights are not respected as much as those of mothers in cases of direct contact and also that men unable to establish family life have their rights further eroded. Drawing upon empirical research findings as well as case law, the relationship between the Prison Act 1952 and the Children Act 1989 is considered and policy recommendations are put forward.     

MEDICALLY ASSISTED HUMAN REPRODUCTIVE TECHNOLOGIES (ART) AND HUMAN RIGHTS — THE EUROPEAN PERSPECTIVE

The present article examines how the progress of science, and in particular, medically assisted human reproductive technologies (ART) have provoked a revolution in the sphere of family relations, generating a series of ethical and legal conflicts. The article focuses on the European perspective, without ignoring the international sphere, given the globalization of the phenomenon. The emerging legal issues are analyzed through the filter of international human rights, not only an important aspect to take into consideration in the context of bioethics in general, but a “passage obligé” given that certain concepts find their explanation and coordinates in international human rights law. It is from this perspective that the relationship between ART and human rights is presented. The applicable international and European legal instruments and principles shall be mentioned, as well as a brief comparison of national legal frameworks in Europe. The emerging bioethical and legal issues are examined in correlation with the response of the European Court of Human Rights through its case law aimed at balancing conflicting rights when faced with issues pertaining to ART. Lastly, the article presents in more detail the particular legal issues under debate in France and Italy, two European countries with specific legislation in the field.     

Algorithmic surveillance: the collection conundrum

ABSTRACT

Supporters of increased surveillance see tremendous potential in the ever increasing creation, collection, and retention of personal data. Most acknowledge that the massive collection of information also creates challenges where the collection outpaces the ability to meaningfully process the data. Increased processing power and more finely tuned algorithms are often portrayed as the solution to this haystack conundrum. While a human may struggle to find the needle in an overflowing haystack of disordered information, powerful computers can take a logical and structured approach that will make the haystack eminently more searchable. This article evaluates this premise from a human rights perspective and considers whether algorithmic surveillance systems can be designed to be compatible with the right to privacy. In addition to assessing the incongruity between traditional safeguards (such as foreseeability and accountability) with algorithmic surveillance, this article also confronts the problem of initial collection and addresses the contention that well-defined algorithmic search can effectively limit the intrusiveness of surveillance. Evolution in the case law of the European Court of Human Rights and the Court of Justice of the European Union will be factored into this analysis.     

State‐Sponsored Homophobia and the Denial of the Right of Assembly in Central and Eastern Europe: The “Boomerang” and the “Ricochet” between European Organizations and Civil Society to Uphold Human Rights

State‐sponsored homophobia emerged in certain Central and Eastern European states in the past decade, with the denial of the right of assembly for gay pride marches. However, more recently there has been progress in the recognition of the fundamental democratic right of assembly. What accounts for this progress in fulfilling commitments enshrined in the European human rights treaties? This article proposes that the response of European organizations, in particular the Council of Europe and the European Union, as well as human rights nongovernmental organizations working in collaboration with local civil society organizations, have been critical to this progress. Previous literature has described a “boomerang” effect, in which aggrieved citizens use transnational activist networks to publicize human rights violations and put pressure on governments to fulfill their international legal commitments. To understand the functioning and effectiveness of the “boomerang” we introduce the concept of the “ricochet”—a process in which various institutions and civil society rapidly exchange information as well as political and legal argumentation. We posit that the ricochet is an integral process in the development of a European consensus on the human rights recognized by the European Court of Human Rights. Four cases have been selected for empirical analysis: Poland, Latvia, Serbia, and Russia. In analyzing the ricochet of information and argumentation between institutions and civil society, we find the consensus has been framed around the right of assembly, instead of the more contested area of human rights and sexual orientation.     

What Does Free Movement Mean in Theory and Practice in an Enlarged EU?

Abstract The purpose of this article is to review the main challenges to the principle of free movement of persons in theory and practice in an enlarged European Union. The right to move freely represents one of the fundamental freedoms of the internal market as well as an essential political element of the package of rights linked to the very status of EU citizenship. The scope ratione personae and the current state of the principle of free movement of persons is assessed by looking at the most recent case law of the Court of Justice and the recently adopted Directive on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States. But what are the hidden and visible obstacles to free movement of persons in Europe? How can these barriers be overcome to make free movement and residence rights more inclusive? This article addresses these issues along with the following questions: Who are the beneficiaries of the free movement of persons in an enlarged Europe? What is the impact of the recent legal developments in the freedom of movement dimension, such as the European Court of Justice case law and the new Directive? And to what extent are pro‐security policies such as the Schengen Information System II and an enhanced interoperability between European databases fully compatible with the freedom of movement paradigm?     

Multiculturalism and its Discontents

This article examines the practical and theoretical nature ofthe concept of multiculturalism. Its focus is on multiculturalismin the public space and in immigrant states, particularly inWestern Europe. From a practical viewpoint, the article discusseswhy multiculturalism has taken centre stage in legal and politicalagendas, and how the practical application of the concept hasgiven rise to controversy in a number of states. Particularattention is given to the implications of the judgment of theEuropean Court of Human Rights in the case Refah Partisi v Turkey.In terms of a theoretical viewpoint, the role played by multiculturalismin human rights discourse is examined, as are challenges tothe concept from the fields of legal and political theory.     

Lis Pendens,Choice of Court Agreements and Abuse of Law Under Brussels Ibis

The Brussels Ibis Regulation aims to ‘improve the efficiency of choice of court agreements’ following widespread criticism of the Gasser judgment of the European Court of Justice. To this end, the Regulation introduces a priority mechanism in Article 31(2) in favour of the court designated in exclusive choice of court agreements. This article analyses, first, the problem, which the new priority mechanism in the Brussels Ibis Regulation intends to resolve. Second, it describes how the reforms in the Brussels Ibis Regulation address the practical issues raised by Gasser. In this regard, the relevance of the abuse of law doctrine in EU law will be discussed. Finally, the article considers the practical application of the new priority mechanism and in particular the standard of review the non-chosen court should adopt in applying Article 31(2) Brussels Ibis Regulation.

     

Judicial protection of fundamental rights in the transition from the world of atoms to the word of bits: The case of freedom of speech

This article underlines the role of Courts in protecting fundamental rights in the atomic and the digital dimension. The main aim of this work is to show how the coming of the Internet has affected the exercise and the judicial protection of freedom of expression in a comparative perspective. In order to answer this research question, this study will focus on the role of Courts as ‘playmakers’ in interpreting and solving issues deriving from interconnected legal regimes affecting the protection of fundamental rights and, especially, free speech. More specifically, the comparative focus will be on the decisions of the European Court of Justice, the European Court of Human Right and the US Supreme Court.     

Vulnerability as a normative argument for accommodating “justice” within the AFSJ

Vulnerability is a concept that stems from ethics and legal theory. It has progressively gained momentum in international human rights law, in particular in the European contextof the European Court of Human Rights adjudications. Also, the European Union is sensitive to it.By the introduction of competences in the Area of Freedom, Security and Justice (AFSJ) we are witnessing a progressive “vulnerabilisation” of EU law. This article intends in the first place to outline such a problematic notion and then to highlight the normative effects of vulnerability. In particular, this article will put forward the argument that such notion could serve to revamp the profile of “justice” of the AFSJ, which has been neglected so far, calling for the development of a more sophisticated ethics of State duties.     

The right to data portability in the GDPR: Towards user-centric interoperability of digital services

The right to data portability is one of the most important novelties within the EU General Data Protection Regulation, both in terms of warranting control rights to data subjects and in terms of being found at the intersection between data protection and other fields of law (competition law, intellectual property, consumer protection, etc.). It constitutes, thus, a valuable case of development and diffusion of effective user-centric privacy enhancing technologies and a first tool to allow individuals to enjoy the immaterial wealth of their personal data in the data economy. Indeed, a free portability of personal data from one controller to another can be a strong tool for data subjects in order to foster competition of digital services and interoperability of platforms and in order to enhance controllership of individuals on their own data. However, the adopted formulation of the right to data portability in the GDPR could benefit from further clarification: several interpretations are possible, particularly with regard to the object of the right and its interrelation with other rights, potentially leading to additional challenges within its technical implementation. The aim of this article is to propose a first systematic interpretation of this new right, by suggesting a pragmatic and extensive approach, particularly taking advantage as much as possible of the interrelationship that this new legal provision can have with regard to the Digital Single Market and the fundamental rights of digital users. In sum, the right to data portability can be approximated under two different perspectives: the minimalist approach (the adieu scenario) and the empowering approach (the fusing scenario), which the authors consider highly preferable.     

Reproductive Health: Morals,Margins and Rights

Reproductive interventions and technologies have the capacity to generate profound societal unease and to provoke hostile reactions underpinned by various moral concerns. This paper shows that this position currently goes relatively unchecked by the European Court of Human Rights, which allows the margin of appreciation and consensus doctrines significantly to limit the scope of reproductive rights under the right to respect for private and family life under Article 8. This occurs both in relation to the interest in avoiding reproduction at stake in abortion, and that in achieving it at stake in medically assisted reproduction. The paper demonstrates significant flaws in the Court's framing and deployment of these doctrines in its reproductive jurisprudence. It argues that, as regards existing and upcoming reproductive interventions and technologies, the Court should attend to the concept of reproductive health, long recognised in international conventions and policy materials.     

NGO Standing in the European Court of Justice – Does the Aarhus Regulation Open the Door?

This article assesses whether the new European Community (EC) Regulation applying the provisions of the Aarhus Convention to EC institutions and bodies provides non-governmental organizations (NGOs) with access to justice in compliance with the EC's obligations under the Aarhus Convention. We conclude that, notwithstanding the uncertainty over the wording finally adopted in the Aarhus Regulation, the procedural rights granted to NGOs in the Regulation brings NGOs within the standing requirements of the EC Treaty, such that they can seek justice in the European courts. This is a significant development in the field of environmental democracy and procedural rights to the environment – including the ability to seek enforcement of the right to a healthy environment.     

Corporations as Moral Agents: Trade-Offs in Criminal Liability and Human Rights for Corporations

This article argues that a common way of defending corporate criminal liability creates a dilemma: it provides a strong justification for giving human rights to corporations. This result follows from approaches to punishment and human rights which predicate each on the status of moral agency. In short, if corporations are moral agents in a sufficient sense to attract criminal liability, they are eligible holders of human rights. The article also discusses the doctrinal application of this philosophical claim. Drawing on US jurisprudence, it illustrates how the European Court of Human Rights might deploy corporate moral agency as a theoretical foundation for its otherwise weakly-reasoned attribution of human rights to corporations. If proponents of corporate criminal liability are dissatisfied with these conclusions, they face difficult policy trade-offs: they must abandon the doctrine, or adopt alternative approaches to punishment or human rights.     

The Child in European Human Rights Law

This article examines the category of ‘the child’ in European human rights law, based on an analysis of the child‐related jurisprudence of the European Court of Human Rights. It argues that a full account of legal selfhood is constructed through the notion of ‘the child’ in this jurisprudence. The two notions – of ‘the child’ and ‘the self’ – are, from the outset, mutually dependent. The conceptualisation of ‘the child’ in human rights law is underpinned by an account of the self as originating in another and childhood is cast as enabling self‐understanding by making possible the formation of a narrative about the self. The vision of ‘the self’ that emerges is one of ‘the narrative self’, and I assess the implications of this both for the idea of childhood in which this narrative originates and for the vision of the human condition that is expressed in European human rights law more broadly.     

Ironies in Human Rights Protection in the EU: Pre-Accession Conditionality and Post-Accession Conundrums

In the wake of the extensive scrutiny of the human rights credentials of the new Member States under the EU pre-accession conditionality, which itself was riddled with paradoxes, this article considers a rather unexpected irony thrown up by the accession of these countries. It is that the post-communist constitutional courts, which have been applauded for vigorous protection of fundamental rights after the fall of the Communist regime that was marked by nihilism to rights, have come rather close to having to downgrade the protection standards after accession, due to the new constraints of supremacy of EC law. The article will consider the sugar market cases of the Hungarian and Czech Constitutional Courts and of the Estonian Supreme Court, which appear to add weight to the concerns that have been voiced in some older Member States about the fundamental rights protection in the EU. Indeed such concerns were recently also addressed in the concurring opinions to the Bosphorus judgment of the European Court of Human Rights.     

Citizenship of the European Union—A Legal Analysis

Abstract:  The aim of this article is to present a legal analysis of the concept of citizenship of the EU. This concept was considered by some to be embryonic in the original Community Treaties, but was first expressly incorporated into the Treaties by the Treaty on European Union, signed at Maastricht on 7 February 1992. In the case-law of the European Court of Justice, which has given citizenship a content going beyond the express Treaty provisions, the concept is closely related to other basic concepts, including free movement of persons, the prohibition of discrimination on grounds of nationality and the protection of fundamental rights. This article seeks to review the case-law, to disentangle citizenship from other related concepts, and to determine what added value citizenship has brought to the Treaties and what the potential and the proper limits of the concept might be.     

Critical Thoughts on Article 59(2) of the ICC Statute

The International Criminal Court (ICC) has already issued itsfirst arrest warrants. Hence, the question of the custodialstate arresting a person in response to a request issued bythe Court and his or her appearance before competent judicialauthorities (per Article 59(2) ICCSt.), becomes compelling.Several pertinent questions arise in relation to the applicationof this provision. The article addresses, in particular, issuessuch as: (i) the rationale for Article 59; (ii) the implicationsof paragraph 2; (iii) the consequences of non compliance withthis provision; (iv) the impact of human rights decisions onits application and (v) the question of self-referrals in relationto paragraph 2.     

The General Provisions of the Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union provides the Union with a 'more evident' (as the European Council of Cologne asked for) framework of protection of the individuals before the public authorities within the European context, after more than thirty years (since the Stauder Case ) of full confidence in the leading role played by the jurisprudence of the Court of Justice of the European Communities. This new normative catalogue of fundamental rights (included the so called 'aspirational fundamental rights') implies one more instrument of protection which has to find its own place with regard to the protection afforded by the national Constitutions and the international agreements on human rights, particularly the European Convention on Human Rights, which are already a privileged source of inspiration for Court of Justice of the European Communities. It is the main objective of the General Provisions of the Charter to clarify which is that place and the relationship with those other levels of protection as managed by their supreme interpreters (i.e., the Constitutional—or Supreme—Courts of the Member States of the Union and the European Court of Human Rights).     

Two Concepts of the Margin of Appreciation

The doctrine of the margin of appreciation that the EuropeanCourt of Human Rights has developed in its case law has givenrise to considerable criticism. In this article I draw a distinctionbetween two different ways in which the Court has used the doctrine.The first one is in cases where the Court has to decide whethera particular interference with a Convention freedom is justified.In answering that question, the Court often uses the label ‘marginof appreciation’ without drawing on a substantive theoryof rights that can justify the conclusion reached. The seconduse appears in cases where the Court refrains explicitly fromemploying a substantive test of human rights review on the basisthat there is no consensus among Contracting States on the legalissue before it. My aim is to highlight the principles thatcan be used to justify each use of the doctrine, by locatinghuman rights within broader issues in moral and political philosophy.Particular emphasis is placed on the distinction between reason-blockingand interest-based theories of rights as well as on the natureof the duties of the European Court, as a matter of internationalhuman rights law.     

Privacy and the regulation of 2012

This paper explores the European Commission’s proposal for a new Regulation to update and reform data protection law in Europe. As regards the Regulation itself, without presenting an exhaustive analysis of all the provisions, this paper aims to highlight some significant changes proposed to the data protection regime by comparison between Directive 95/46 and the proposed Regulation. It takes particularly into account legislative innovation concerning data protection principles, data subjects’ rights, data controllers and data processors obligations, and the regulation of technologies. Before analyzing these innovations, it introduces some considerations about the Commission’s choice to use a Regulation instead of a Directive to harmonize national data protection regime.