ATALA RIFFO AND DAUGHTERS V. CHILE: THE SEXUAL ORIENTATION OF THE MOTHER AND THE PRINCIPLE OF THE BEST INTERESTS OF THE CHILD
Andrea del Carmen Morgan Alarcon
The Inter-American Court of Human Rights for the first time in its history handed down a ruling overturning the decision of the Supreme Court of Chile granting custody to Ms. Atala Riffo ex-husband based on the mother’s sexual orientation. The Court found that the respondent state had violated the right to equality and the prohibition of discrimination, the right to private and to family life, and the judicial guarantees and protection both of Ms. Atala Riffo and her daughters. The judgment in question evidences that the principle of the best interests of the child had been used to discriminate based on sexual orientation and notes that the law instead of being used as a tool for institutional discrimination has to make society progress.
The human rights standards fixed in the European Convention on Human Rights cannot be interpreted on the basis of the historical compromises achieved in the 1950s, but have to be seen in the light of the development of values and conceptions in modern European societies. On the basis of detailed analyses of the relevant legal regulations in the member States the European Court of Human Rights tries to find out in each controversial case if there is a convergence of legislative approaches, i.e. a “European consensus”. The existence or non-existence of a European consensus is taken into account in determining the width of the margin of appreciation.
A., B. AND C. V. IRELAND: THE EMERGENCE OF TRUMPING INTERNAL CONSENSUS
Fiona de Londras, Kanstantin Dzehtsiarou
A., B. & C. v. Ireland has attracted significant attention for what it says (or does not say) about abortion and the European Convention on Human Rights. However, the decision is also significant for the evolution of decision-making methods in the Court, and especially the notion of “European consensus“. A., B. & C. v. Ireland saw the emergence of what we term “trumping internal consensus“ to allow for moral judgements within a State to “trump“ an identified European consensus. We argue that this raises serious constitutionalist concerns, not least because of its potential impact on harmonisation and questionable methodological basis.
This paper starts with the discussion of the evolution of the application by the European Court of Human Rights of Article 17 ECHR (abuse of rights) which led to some judges calling for the disposal of the applications challenging conviction for homophobic speech on its basis. The case-law of the Russian courts upholding legislation banning any mention of homosexuality, including the arguments on the alleged compliance of such prohibitions with the ECHR, is assessed. Contrasting Russian and European case-law leads to a conclusion that they evolve in such different ways that the vectors determining this evolution lay in different planes.
The wrong demarcation line between criminal and administrative law is one of the deepest deformation inherited from the Soviet law by the Russian law and in the broader context by the Post-Soviet law. This deformation not only hampers the positive evolution of the Russian law and the law of other Post-soviet states, but does not correspond with approaches elaborated by the ECHR and now became classical. The author analyses the genesis of the problem and proposes the theoretical basis for its resolution.
AN OVERVIEW OF DISSENTING OPINIONS OF JUDGE ANATOLY KOVLER
The article analyses and reviews the dissenting opinions of the recently retired judge of the European Court of Human Rights, Anatoly Ivanovich Kovler. Judge Kovler was elected in respect of the Russian Federation. The paper commences with general overview of the Strasbourg system of human rights protection and looks at the significance of dissenting opinions in the decision-making process. The paper then identifies key areas in which judge Kovler did not share the views of majority. The paper gives an overview of the dissents on the issue of expansion of procedural competence of the European Court of Human Rights namely issuing mandatory interim measures or requesting the States to provide classified documents. The paper then examines the dissents dealing with admissibility of complaints and Kovler’s critique of the lack of rigour in the Court’s approach to the admissibility criteria. Finally, the paper looks at the extraterritorial application of the European Convention on Human Rights.
The former Judge of the European Court of Human Rights Anatoly Kovler gave an exclusive interview to our journal. He shares his opinion about qualities of a good judge, controversial legal issues he was involved in dealing with as a judge, and weaknesses and advantages of the European human rights system.
INTERNATIONAL CONFERENCE “INTERNATIONAL LEGAL ORDER IN THE MODERN WORLD AND THE ROLE OF RUSSIA IN ITS STRENGTHENING”: AN OVERVIEW
Adel I. Abdullin, Ruslan Sh. Garipov, Natalya E. Tyurina
The article provides an overview of the International conference “International Legal Order in Modern World and the Role of Russia in its Strengthening”, dedicated to the 90th anniversary of professor David Isaakovich Feldman (1922–1994), held in Kazan (Volga region) Federal University in October 2012.