Eva Brems

Conflicting Human Rights: An Exploration in the Context of the Right to a Fair Trial in the European Convention for the Protection of Human Rights and Fundamental Freedoms

The proliferation of human rights claims increases the occurrence of situations in which two or more distinct human rights enter into conflict. Conflicts between human rights are a challenge for both legislators and judges. In this article, the issue of conflicting human rights is explored in the context of one particular human right—the right to a fair trial—and one judicial body—the European Court of Human Rights. Part I introduces the multifaceted nature of the right to a fair trial as protected in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Part II attempts to outline a general framework for approaching conflicting human rights and analyzes the recent case law of the European Court of Human Rights in light of that framework, dealing with both conflicts between different aspects of the right to a fair trial, as well as with conflicts between the right to a fair trial and other human rights. Part III summarizes the findings of the case law research.

Doing Minority Justice Through Procedural Fairness: Face Veil Bans in Europe

Abstract The French and Belgian bans on face veils in public places have been subjected to strong substantive human rights critiques. This article takes a complementary approach, examining the bans from the perspective of procedural fairness. Indeed, the French and Belgian bans are extreme examples of legislative processes taking place above the heads of the people concerned, neglecting the ban’s possible human rights impact. After exploring what the social psychology notion of procedural fairness entails for the judiciary and the legislator, especially in a multicultural context, this article details procedural fairness shortcomings with respect to the face veil ban in France and Belgium. Subsequently, the article sets out how the European Court of Human Rights might compensate for these shortcomings.

State regulation of xenophobia versus individual freedoms: the European view

In Europe today, racism and xenophobia are recognized as major societal and political problems. When the heads of state and government of the member states of the Council of Europe met for the first time in their organization’s history at a 1993 summit in Vienna to make plans for the reunited Europe, racism was one of their main agenda points. In a ‘Declaration on combating racism, xenophobia, anti-Semitism and intolerance’,1 they showed themselves ‘alarmed by the present resurgence of racism, xenophobia and antiSemitism, the development of a climate of intolerance, the increase in acts of violence, notably against migrants and people of immigrant origin, and the degrading treatment and discriminatory practices accompanying them’. They were equally alarmed by ‘the development of aggressive nationalism and ethnocentrism which constitute new expressions of xenophobia’. One of the commitments the European heads of state and government undertook in their Vienna declaration was ‘to combat all ideologies, policies and practices constituting an incitement to racial hatred, violence and discrimination, as well as any action or language likely to strengthen fears and tensions between groups from different racial, ethnic, national, religious or social backgrounds’. This position was adopted not only out of sympathy with the victims of racist discrimination and abuse, but also because of a more fundamental concern about the future of democracy in Europe. The authors of the declaration were ‘convinced that these manifestations of intolerance threaten democratic societies and their fundamental values and undermine the foundations of European construction’.

Diversity and European human rights : rewriting judgments of the ECHR

Introduction Eva Brems Part I. Children: 1. Rewriting V v. the United Kingdom: building on a groundbreaking standard Ursula Kilkelly 2. Images of children in education: a critical reading of D. H. and Others v. The Czech Republic Sia Spiliopoulou Akermark 3. Mainstreaming childrens rights in migration litigation: Muskhadzhiyeva and Others v. Belgium Wouter Vandenhole and Julie Ryngaert Part II. Gender: 4. Redrafting abortion rights under the Convention: A, B and C v. Ireland Patricia Londono 5. A noble cause: a case study of discrimination, symbols and reciprocity Yofi Tirosh 6. From inclusion to transformation: rewriting Konstantin Markin v. Russia Alexandra Timmer Part III. Religious Minorities: 7. Rethinking Deschomets v. France: reinforcing the protection of religious liberty through personal autonomy in custody disputes Renata Uitz 8. Mainstreaming religious diversity in a secular and egalitarian state: the road(s) not taken in Leyla Sahin v. Turkey Pierre Bosset 9. Suku Phull v. France rewritten from a procedural justice perspective: taking religious minorities seriously Saila Ouald Chaib Part IV. Sexual Minorities: 10. Rewriting Schalk and Kopf: shifting the locus of deference Holning S. Lau 11. The burden of conjugality Aeyal Gross 12. The public faces of privacy: rewriting Lustig-Prean and Beckett v. the United Kingdom Michael Kavey Part V. Disability: 13. Unravelling the knot: Article 8, private life, positive duties and disability: rewriting Sentges v. The Netherlands Lisa Waddington 14. Re-thinking Herczegfalvy: the Convention and the control of psychiatric treatment Peter Bartlett 15. Rewriting Kolanis v. the United Kingdom: the right to community integration Maris Burbergs Part VI. Cultural Minorities: 16. Minority marriage and discrimination: redrafting Munoz Diaz v. Spain Eduardo J. Ruiz Vieytez 17. Chapman redux: the European Court of Human Rights and Roma traditional lifestyle Julie Ringelheim 18. Erasing Q, W and X, erasing cultural difference Lourdes Peroni.

Human Rights Enforcement by People Living in Poverty: Access to Justice in Nigeria

This article analyses the challenges facing those living in poverty in Nigeria in accessing justice for the enforcement of their rights, despite those rights being constitutionally protected and despite the existence of a specific procedure for their enforcement. People living in poverty are generally most likely to see their human rights violated, and least likely to enforce their rights. The article posits that the judiciary in developing countries has a crucial role to play in fighting human rights violations specifically affecting people living in poverty, and notes the great challenge for the Nigerian legislator and judiciary towards making justice accessible in practical terms to the needy in Nigeria. The example of public interest litigation in India can serve as a source of inspiration in this respect.

Uncovering French and Belgian Face Covering Bans

This paper analyses the French and Belgian bans on face covering by taking a close look at the aims they are intended to serve in the eyes of the legislators in the two countries. These stated aims are the basis for a critical assessment of the bans from a human rights perspective. The authors conclude that the reasons proffered for the prohibition can legitimize at most a limited set of contextual bans, not the broad nationwide bans that are in place.

Transitional justice and cultural contexts: learning from the Universality debate

Whenever a society faces the difficult process of substantial political transition after a period of gross human rights violations, the issues of justice, reconciliation, truth and reparation appear on the agenda. They form the key concepts of the emerging global paradigm of transitional justice. This booming field is faced with several unresolved and contested issues one of which is a criticism based on local and cultural particularities. In this article it is argued that it is useful to draw lessons from the universality-diversity debate in international human rights law and confront them with local and cultural challenges that arise in the transitional justice context. It seems that the ideal of inclusiveness that remains hard to realise in human rights law, despite theoretical consensus, might have better chances of being put in practice in transitional justice initiatives.

The experiences of face veil wearers in Europe and the law

One of the most remarkable aspects pertaining to the legal bans and societal debates on the face veil in Europe is that they rely on assumptions which lack any factual basis. To rectify this, Eva Brems researched the experiences of women who wear a face veil in Belgium and brought her research results together with those of colleagues who did the same in four other European countries. Their findings, which are outlined in this volume, move the current discussion on face veil bans forward by providing a much-needed insider perspective. In addition, a number of legal and social science scholars comment on the empirical findings and on the face veil issue more generally.

The Experiences of Face Veil Wearers in Europe and the Law: Introduction to the volume

In Belgium, as in France, legal restrictions on relegions dress worn by Muslim women have been on the agenda for over two decades.....

Reconciling Universality and Diversity in International Human Rights Law

Today, the concept of universality is inherent in that of human rights. Human rights are by definition the rights of all human beings around the world. At the same time, human rights are increasingly considered to be the most fundamental norms, which should receive priority over all other norms and interests. Human rights are presented as the ultimate criteria of human behavior: of government behavior but also increasingly of the behavior of economic actors and private individuals. The question that is addressed here relates to the tension between this claim of universality and the reality of enormous diversity in the world.