European Law

General information : European Law

Highlights

BookCover

Bringing a case to the European Court of Human Rights
Council of Europe


As of 1 November 2014, about 78,000 applications were pending before a judicial formation of the Court. Although the Court’s docket has been reduced by nearly 50% over the last three years, this still represents a very signifi cant number of cases to bebrought before an international tribunal and continues to threaten the effectiveness of the right of petition enshrined in the Convention. The vast majority of cases (92% in 2013) will be rejected by the Court on one of the grounds of inadmissibility. Such cases clog up the Court’s docket and obstruct the examination of more deserving cases where the admissibility requirements have been satisfi ed and which may concern seriousallegations of human-rights violations.The 2010 Interlaken Conference on the reform of the Court called upon the “States Parties and the Court to ensure that comprehensive and objective information is provided to potential applicants on the Convention and the Court’s case-law, in particular on the application procedures and admissibility criteria”. The Court’s first response to the call was to prepare a Practical Guide on Admissibility Criteria which clearly sets out the rules and case-law concerning admissibility. This third edition covers case-law up to 1 January 2014 and the stricter procedural conditions for applying to the Court which came intoforce on that date. Practitioners and prospective applicants should study this Practical Guide carefully before deciding to bring a case before the European Court of Human Rights.

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Recent Publications

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Digital Evidence Changing the Paradigm of Human Rights Protection
Salvatore di Cerbo

In a “digital world” like ours, vast Information and Communication Technology (ICT)
infrastructures are highways where run extensive flows of information, dictating the
rhythm of our day-to-day lives. Such a deep influence, close to be an addiction for us, turns
ICT an unquestioned feature of modern life. These premises well portrait the landscape in which the diverse spectrum of actors
committed to promote, defend and restore the human rights operate. Therefore, the risk is
to mistake the means with the ends; but, even if the subject of this work, Digital Evidence,
is technology-related, the purpose of the study is the goal to which it tends: human rights
and their protection. Moreover, the wide diffusion of “capturing devices” that allow the documentation of human
rights abuses throughout massive streams of data from diverse sources will raise new
needs: in primis a careful collection and interpretation of the most relevant ones, and then
the establishment of mechanisms to ensure the validity and reliability of newly acquired
information. The whole chain that connects all the required steps in order to turn digital data into
“digital legal evidence” relevant for the protection of human rights, represents a challenge
for human rights practitioners, as individual activists, as well as organizations. Every single
step is fundamental: collection, management, preservation, analysis and security of data,
along with an effective communication and strategic use of evidence. Twitter tweets, Facebook and Blogs posts, Instagram photos and Youtube videos, even
when considered too weak for a conviction to be founded on, can play an important
role outside of a courtroom, establishing the grounds for prosecution indictments or, in
general, creating awareness of human rights abuses. Consequently, new forms of human rights activism, like the so-called “hashtag activism”,
pass through social media and have the power to generate a real change at both legal and
awareness level. The risk to be avoided is to mortify this power using social media as a
shortcut to be politically active or socially trendy making a mere “clictivism”. Hence, the core of this work revolves around the pivotal question of legal sufficiency of
the digital means employed in recording human rights abuses and the consolidation of
standards and procedures regulating the admissibility of collected evidence in the court of
law. The purpose is to provide an answer from a tri-folded point of view. The U.S. legal system leads in the regulation of the requirements for digital evidence to be
admitted at trial; nonetheless, also International courts like ICC, ICTY and ICTR follow
rules and procedure for that purpose, based on authenticity, protection of privacy, chain
of possession and reliability of the electronic evidence. At the European level, instead, the
lack of a common legislation relevant to the admissibility of d-evidence at trial required a
comparative study of the respective provisions contained in many Europeans countries’
procedural law. For these three levels a special attention is reserved to the analysis
of the lifecycle of digital evidence, from the creation and use of digital digital human
rights documentation for immediate purpose to its later admission as evidence in legal
proceedings, as well as to the authentication issue. At the last stage a collection of the most relevant case law form the principal U.S. courts
and International courts is provided.

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A Comparative Study of Cybercrime in Criminal Law
Q. Wang

The development of information technology provides new opportunities for crimes. Firstly, it facilitates traditional crimes such as fraud, and secondly, it breeds new crimes such as hacking. The traditional crimes facilitated by information technology and the new crimes bred by it are the so-called cybercrime in this book. To regulate cybercrime, legal regimes have developed countermeasures in the field of criminal law at different levels. At the national level, China, the United States, England and Singapore have all undergone reforms to adapt their criminal law. At the international level, the Council of Europe has drafted the Convention on Cybercrime and opened it for signatures. However, the still commonly committed cybercrime, such as DDoS attacks and online fraud, indicates the insufficiency of these countermeasures. In this background, this book intends to answer the research question: how can the criminal law be adapted to regulate cybercrime? By using doctrinal research and comparative study as the main methods, this book firstly explores and analyses the approaches of cybercrime legislations in the selected five legal regimes both in the past and in the present, and secondly, compares the different approaches and concludes with respect to the following aspects:   Aspect 1: Do we need a cyber-specific legislation to regulate cybercrime?   Aspect 2: If we do need a specific legislation, what approaches are more systematic for it?   Aspect 3: What principles are sufficient and appropriate to determine jurisdiction over cybercrime?   Aspect 4: What is the function of the Convention on Cybercrime in shaping appropriate legislation against cybercrime?

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Children’s Rights in a Digital Environment and European Union Law
J. Auer

Being online has become part of the daily routine for the most of us, particularly for young people. Children are growing up in a fast-paced technological environment, in which the new Information and Communications Technologies (ICTs) such as smartphones or tablets provide limitless internet access and with that a limitless communication. The internet changes the way children interact, communicate, play and learn and in this context, it offers a broad range of opportunities. However, given that the dissemination of personal data as well as of violent or illegal content has been facilitated, the online environment also entails new risks to which children are exposed. With the increasing children’s internet use, the anxiety that children are particularly vulnerable to those risks grows and raises questions about how policy makers, the public and parents may effectively protect children online by balancing opportunities and risks. The aim of this book is to analyse the current legal framework with regard to the protection of the children’s rights in a digital environment. It examines which legal provisions apply to the risks a child may encounter when using the internet and in particular, which instruments have been implemented to prevent child pornography, grooming and the violations of personal data protection rights. It is intended to give an overview of the existing legal instruments on an international and a European Union level, with focus on the European Union legislation and the recent developments in the case law of the European Court of Justice.

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Solving Statelessness
Laura Van Waas & Melanie Khanna (eds)

Interest in statelessness has been steadily increasing since the late 1990s – within academia, among governments, at the UN and among civil society organisations. Research projects, mapping studies and doctrinal discussions have helped to clarify the challenges faced and our understanding of what is at stake. This has led to a fresh sense of purpose in addressing the issue and there is now a growing international movement engaged in finding solutions, spurred on by the UNHCR-led #IBelong Campaign to End Statelessness by 2024. Making meaningful progress towards this goal demands a new and more ambitious approach, one that moves beyond stocktaking to inspire solutions. As Volker Türk outlines in his introduction to this ground-breaking publication: “The global debates have moved beyond the need to explain the problem and its causes and consequences. The time has come to accelerate the momentum to implement durable solutions effectively.” The essays which have been collected in this edited volume all approach statelessness from a solutions perspective, looking at what is being done, and what more can be done, to address the issue. The first part of the book has a thematic focus, exploring perspectives, tools and techniques for solving statelessness which are relevant across different countries and regions. Chapters in the second part each have a regional focus, exploring region-specific challenges, developments and innovations set against the backdrop of the broader context of a global campaign to solve statelessness. With contributions from both scholars and practitioners, the book is likely to be of interest to anyone engaged in studying or implementing solutions for statelessness, including researchers, government policy-makers, staff of international or regional inter-governmental bodies and UN agencies, grass-roots and international civil society organisations, legal practitioners and advanced-level students.

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Medische aansprakelijkheid
S. Heirman, E.C. Huijsmans & R. van den Munckhof (red.)

Het kenniscentrum Milieu en Gezondheid is een initiatief van het gerechtshof ’s-Hertogenbosch en de rechtbank Oost-Brabant. Doel van het kenniscentrum is om bij te dragen aan de kwaliteitsverbetering van de rechterlijke oordeelsvorming op het vlak van milieu en gezondheid. Door het verzamelen, beheren en delen van kennis over de strafrechtelijke, civielrechtelijke en bestuursrechtelijke aspecten hiervan, ondersteunt het kenniscentrum rechters en juridisch medewerkers in het hele land op dit vlak. Eén van de werkzaamheden van het kenniscentrum is het organiseren van themadagen voor de leden van de zittende magistratuur en de juridische ondersteuning van alle gerechten. Op deze themadagen wordt steeds een onderwerp op het gebied van milieu en gezondheid nader belicht. Op vrijdag 8 april 2016 organiseerde het kenniscentrum een themadag over het onderwerp medische aansprakelijkheid, in samenwerking met het Studiecentrum Rechtspleging (SSR). In dit kennisdocument zijn bijdragen van een aantal sprekers en deelnemers van die themadag gebundeld. De auteurs in deze bundel:                  Prof. dr. R.J. van der Gaag Prof. mr. A.C. Hendriks Prof. mr. dr. A.R. Mackor Prof. mr J. Legemaate Mr. dr. R.P. Wijne Mr. P.M.J. Eken-de Vos Mr. P.J. van Eekeren Mr. drs. E.C. Huijsmans Mr. R. van den Munckhof

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Crimmigration law in the European Union (Part 2)
A. Pahladsingh

In the European Union the Return Directive aims at establishing common standards and procedures to be applied in Member States for returning illegally staying third-country nationals (Article 1).  In part 2 of the serie on crimmigration in the EU this research is focusing on 2 other instruments of the Return Directive: the return decision and the detention.
As defined in Article 3 (4) a return decision “means an administrative or judicial decision or act, stating or declaring the stay of a thirdcountry national to be illegal and imposing or stating an obligation to return.” According to Article 6 of the Return Directive Member States are obliged to issue a return decision to any third-country national staying illegally in their territory, unless an express derogation is foreseen by Union Law.
As studies have showed in some countries of nationality there is for the illegal third-country national, who is expelled by EU Member States, a risk of criminalization in the form of criminal sanctions such as fines and detention. This is the situation when these countries of nationality criminalize emigration. Forced to return immediately to their countries of departure or nationality, these “inadmissibles” never fully become immigrants. I label this as double crimmigrations. These failed migrants become at least suspect citizens and they risk a form of double crimmigration in their countries of departure or nationality as they risk to be penalized twice: firstly by their involuntary return and secondly by the instigation of ciminal proceedings against them in the country of nationality. Double crimmigration should become a topic in EU return policy and security policy in which the EU should also formulate solutions.

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Stelselherzieningen
mr. S.S. Zoeteman

Met preadviezen van: mr. J.H. Meijer, mr. H.A. Oldenziel en mr. H.W. de Vos (allen ministerie van Infrastructuur en Milieu), mr. M.M. den Boer, mr. J.A. Janssen, mr. Y.L. Lont, mr. R. Buitenhuis, mr. M.J.P.C. Zeegers, mr. E. van Schooneveld en mr. M.T. Veldhuizen (allen ministerie van Volksgezondheid, Welzijn en Sport) en mr. R. Bekker

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Trust on the line
Esther Keymolen

Governments, companies, and citizens all think trust is important. Especially today, in the networked era, where we make use of all sorts of e-services and increasingly interact and buy online, trust has become a necessary condition for society to thrive. But what do we mean when we talk about trust and how does the rise of the Internet transform the functioning of trust? This books starts off with a thorough conceptual analysis of trust, drawing on insights from -amongst othersphilosophy and sociology to sharpen our understanding of the topic. The book explains how the arrival of large systems – such as the internet- has changed the character of trust which today is no longer based on interpersonal interactions but has become completely mediated by technologies. Based on the layered building plan of the Internet itself, a new conceptual lens called 4 Cs is developed to analyse and understand trust in the networked era. The 4Cs refer to the 4 layers which all have to be taken into account to assess trust online, namely: context,code, codification, and curation. The 4cs bring together the firsthand experiences of the user (context), the sort of technology that is being used (code), the legal implication (codification) and business interests (curation) in order to get a clear picture of the trust issues that may arise. In the final part of the book some real-life cases are discussed (digital hotel keys, Airbnb, online personalization) to illustrate how trust –analysed through the 4 Cs lens- might flourish or be challenged in our current networked era.

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