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Who Uses the European Court of Human Rights, and Who Wins? Evidence from New Studies

Published on July 27, 2009        Author: 

Gabriel Swain is Research Associate, School of Social Policy, Sociology and Social Research, University of Kent.  Previously, he worked as a researcher for the Council of State Governments, a US-based public policy think tank, where he wrote on topics including climate change, natural resource policy, energy policy and federalism.

The margin of appreciation doctrine of European Court of Human Rights (ECtHR) gives states flexibility in their interpretation of the European Convention on Human Rights (the Convention). States also have the freedom to decide how they implement judgments finding violations against them. This means that individuals in each Council of Europe (CoE) member state experience rights protection and abuse in often quite different ways. The JURISTRAS project, which began in 2006 with a grant from the EU Sixth Framework Programme, has sought to shed light on that variation by analyzing the various relationships between the ECTHR and domestic human rights actors (both governmental and non) in CoE member states.

 Our research initially focused on the protection of the core civil liberties (i.e. ECtHR Articles 8-11 & 14: right to private and family life; freedom of thought, conscience and religion; freedom of expression; freedom of association; freedom from discrimination), but was expanded to include any situation in which an individual’s inclusion in a minority or vulnerable group caused her rights to be infringed. Research questions that drove the initial research design included:  How are judgments that find a country in violation of the Convention implemented in that country? What factors influence the effectiveness and speed of judgment implementation? Which groups have experienced rights abuses in the most direct ways? Which groups, if any, have been able to use the ECtHR as a tool, and have litigated strategically in order to bring about policy reform?

 A number of interesting issues arose with an analysis of the United Kingdom’s protection of the rights of minority and other vulnerable groups. Perhaps most interesting is the extent to which various groups are (or are not) successful in winning cases, which factors contribute to that success, and which groups are likely to see violations translated into policy reforms that favour their group’s interests, and why. There is a substantial variation in the answers to those questions, and to highlight the difference and help explain the reasons behind it, we can first look at cases brought against the UK by homosexuals and transsexuals, who have managed to use the Court to change discriminatory policies that directly affect them. We can then turn our attention to victims of wrongful death and illegal imprisonment in Northern Ireland and gypsies in the UK as examples of groups that have been largely unsuccessful at utilizing the Court to their advantage. Read the rest of this entry…

 
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