Thursday, 24 June 2010

New ECHR Academic Articles

Three new ECHR-related articles have recently been published. The first is authored by Nadezhda Purtova and has just been published in our own Netherlands Quarterly of Human Rights (Vol. 28, No. 2, 2010, pp. 179-198). It is entitled 'Private Law Solutions in European Data Protection: Relationship to Privacy, and Waiver of Data Protection Rights '. This is the abstract of the article:

This paper seeks to define how the legal categories of privacy and data protection correlate in the European legal system, and what the effects such a correlation has on the mode of data protection. Since the norms of the EC data protection law did not provide a conclusive answer, this paper turned to the ECHR for guidance. As a roadmap of analysis this paper picked the dichotomy between privacy and data protection based on the negative rights and positive obligations explained by De Hert and Gutwirth. The analysis of Art. 8 ECHR case-law led to the conclusion that the European Court of Human Rights does not limit the application of Art. 8 ECHR to private sphere only, and the provision on privacy protection has been applied as giving individuals positive rights (for instance, to refute false information about oneself) and imposing on the states affirmative obligations to create and ensure functioning of an effective system of data protection. The conclusion has been reached that European legal order treats data protection as a privacy interest.

Besides, it has been shown that legal recognition of such a close relationship is much more than just a matter of conviction on the philosophical meaning of privacy. Data protection benefits significantly from enjoying protection of a fundamental right status. Removal of data protection from the scope of privacy rights is not necessary and not desirable. First, development of the ECHR case-law expands privacy protection beyond negative right against state intervention to include affirmative obligations of a state to create a data protection system. Second, treating data protection as anything less than a fundamental right under Art. 8 ECHR will allow its waiver and thereby open the door for a dramatic change in approach to data protection.
The second is an article in the same issue of the Netherlands Quarterly, written by Andrew Drzemczewski, entitled 'The Parliamentary Assembly's Involvement in the Supervision of the Judgments of the Strasbourg Court'. This is the abstract:

Even though the Committee of Ministers of the Council of Europe has primary responsibility to supervise the execution of the judgments of the European Court of Human Rrights, by virtue of article 46(2) of the European Convention on Human Rights, the Parliamentary Assembly has increasingly contributed to the process of implementation of the Strasbourg Court's judgments. Composed of national parliamentarians, the Assembly can put pressure on states parties to the Convention to help ensure - through appropriate national parliamentary oversight procedures and mechanisms - rapid and complete implementation of Strasbourg Court judgments. This important Parliamentary dimension should be taken into account when the 2010 Interlaken declaration and action plan are implemented.
The third is an article in the European Journal of Crime, Criminal Law and Criminal Justice (2010, p. 225-236) by Tijs Kooijmans, entitled 'The Burden of Proof in Confiscation Cases: A Comparison between the Netherlands and the United Kingdom in the Light of the European Convention of Human Rights'. This is the abstract:

The Dutch Minister of Justice recently brought a legislative proposal before the Lower House in which a new broadening of the possibilities for deprivation of advantages was proposed. A comparison of Dutch law with the law of the United Kingdom is useful for a proper assessment of the value of the Dutch proposal. For that reason, the possibilities offered by the confiscation order in the United Kingdom are outlined in this paper. Next, it will be examined how, according to the case law of the ECtHR, the imposition of that confiscation order relates to the presumption of innocence as contained in Article 6 ECHR. Afterwards, the case law of the ECtHR will be represented by a Dutch case that shows some similarity to the imposition of the confiscation order in the United Kingdom. Lastly, several conclusions will follow.
Enjoy reading!

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