Heteronormativity and the European Court of Human Rights

This article examines a recent judgment by the European Court of Human Rights (E.B. v France) that upheld the complaint of a homosexual woman who alleged that her application for authorization to adopt a child had been refused by domestic French authorities on the grounds of her sexual orientation. I argue that the judgment constitutes an innovative and atypical legal consideration of, and challenge to, the heteronormative social relations of contemporary European societies. After exploring the evidence presented by the applicant, and the Court’s interpretation of it, I argue that in order to reach its judgment it was necessary for the Court to make a significant departure from its established jurisprudence in relation to sexual orientation. An essential element of this involved the adoption of a distinctive critical approach, strongly resonant with aspects of ‘queer theory’, which focused attention on the social, cultural and political construction of normative heterosexuality. Whilst a number of commentators have assessed the importance of the judgment in terms of its evolution of ‘gay rights’ in the area of family life, I argue that the Court’s reconceptualized ‘theoretical’ understanding of, and critical approach to, heteronormativity offers the potential to expand the scope of the European Convention on Human Rights across a number of areas of social life—in marriage, public assembly, freedom of expression, as well as family life—where non-heterosexuals continue to face discrimination in contemporary Europe.     

The Creativity of the European Court of Human Rights

This article discusses the creative role adopted by the EuropeanCourt of Human Rights in the face of situations not envisagedby the drafters of the European Convention in the late 1940s,resulting from the inevitable evolution of societies and theirchanging ethical standards. Although the Vienna Convention onthe Law of Treaties 1969 is a constant source of inspirationto the Court for the interpretation of the Convention, the articlepoints to two new techniques of interpretation adopted by theCourt, namely the ‘living instrument’ doctrine andthe ‘practical and effective’ doctrine. An attemptis made to highlight the advantages and the weaknesses of bothof these innovative interpretational approaches. Additionally,an assessment is made of how the Court has responded to present-daydemands and maintained a balance between judicial creativityand respect for the role of member States as the key policy-makersin determining the scope of rights guaranteed by the Convention.     

Separate opinions in the European Court of Human Rights

Separate opinions, both concurring and dissenting, have beena feature of judgments of the European Court of Human Rightssince its earliest days, but detailed studies of their incidenceand impact have until recently been sparse. This article, basedon an AHRC-funded research study, offers a survey of the researchliterature and describes the outcome of its own considerationof such opinions. The use of separate opinions in the EuropeanCourt of Human Rights is significant, but the incidence of soledissents by national judges is very low. It would appear thatthe main determining factor in the writing of a separate opinionis judicial temperament. There is some evidence that the backgroundof judges prior to their election to the Court has some influenceon their approach to writing separate opinions. The Court, however,demonstrates high levels of collegiality and the use of separateopinions contributes to the transparency of its decision-making.     

Mentally disordered offenders and the European Court of Human Rights

Mentally disordered offenders find themselves at the intersection of the healthcare system and the criminal justice system in most European countries. Decisions on their care often involve lengthy discussions in relation to care versus control in society. In this article, the focus is on one aspect of this debate — that of human rights. An analysis of cases, taken to the European Court of Human Rights by mentally disordered offenders, demonstrates the difficulties inherent in ensuring appropriate care to individuals and safeguards to the public at the same time. The issues raised include the problems raised by indeterminate sentences, the use of detention for preventive purposes, and debates about treatment.The countries represented in this selection of cases are Belgium, Norway, Poland, the Netherlands, Russia and the United Kingdom.     

A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya

The cases on Chechnya recently decided by the European Courtof Human Rights force us to re-evaluate the relationship betweenhuman rights law and humanitarian law. Since the InternationalCourt of Justice held that humanitarian law is lex specialisto human rights law in 1996 – if not since the TehranConference of 1968 – it has been widely accepted that‘human rights in armed conflict’ refers to humanitarianlaw. The ECtHR has directly applied human rights law to theconduct of hostilities in internal armed conflicts. The rulesit has applied may prove controversial, but humanitarian law’slimited substantive scope and poor record of achieving compliancein internal armed conflicts suggest the importance of this newapproach.     

欧洲人权法院判决效力改革研究

《欧洲人权公约》第四十六条规定了欧洲人权法院的判决效力问题,此类判决效力仅约束诉讼当事国。随着积案问题以及判决执行难题的加重,法院从判决效力角度采取了改革。引导性判决改革打破了法院针对具体案件作出特定性判决的裁决思路;非当事国判决改革打破了一般国际法判决仅约束诉讼当事国的传统。这在国际法上具有极大创新性,体现了欧洲人权法院不再仅仅依靠部长委员会监督判决执行,而不断重视自身在判决执行中的作用;同时也体现了欧洲人权法院不断重视国内人权保护机制,人权保护由国际保护层面向国内保护层面转移。     

欧洲人权法院——超国家的人权保护法律机构

欧洲国家对公民基本权利的保护不仅体现在国内立法、执法、司法等环节,而且,还通过创设国家间的法律文件和机构来促进和监督各国人权保护状况。欧洲人权法院就是致力于保护人权的一个超国家的法律机构。本文从欧洲人权法院设立的历史背景、运行机制、对成员国的影响等方面,对欧洲人权法院作一概要介绍,以飨读者。一、历史背景欧洲人权法院与欧洲司法法院是两个完全不同的机构。后者位于卢森堡,是欧洲联盟的一个法律机构。前者位于法国斯特拉斯堡市,是欧洲理事会的一个专门法律机构。欧洲人权法院设立于1959年,设立根据是《保护人权及基本自…     

论欧洲人权法院的非法证据排除

欧洲人权法院对于非法证据的处理有其特色,与英美法国家迥然不同.欧洲人权法院并没有就如何排除非法证据制定系列指导性的纲要,而是采取个案中具体考量,重点考察的是公权力人员的非法取证行为是否给整个诉讼程序造成不公以及所获证据与案件的关联性,并在此基础上决定证据排除与否,这一点值得关注.     

欧洲人权法院视野下的检察官中立性问题--兼论检察官行使强制处分权的正当性

英美法系认为检察官是当事人,不具有中立性地位,不应当享有强制处分权。大陆法系国家认为,检察官具有客观性义务,享有一定的强制处分权。欧洲人权法院认为检察官的中立性取决于它是否独立于行政,独立于当事人,而不是取决于检察机关的属性,法院进一步提出了判断检察官中立性的三个具体标准,符合该标准的检察官所做出的强制处分决定具有正当性。欧洲人权法院判决对我国解决检察官中立性和强制处分权归属问题有借鉴意义,我们应当强化检察官中立地位,赋予检察官一定的强制处分权同时应加强检察机关的侦查监督权。