Does property protection entail a right to obtain social benefits under the ECHR?

Ingrid Leijten It goes without saying that a supranational court’s engagement with national social policy is a sensitive endeavour. This is all the more so when the norms this court is protecting are of a ‘classic’, rather than of a socio-economic kind. In the recent case of Béláné Nagy v. Hungary the European Court of Human Rights seemingly recognises a right to obtain social security benefits under Article 1 of Protocol No. 1 to the European Convention on Human Rights, which contains the right to protection of property. The case was decided by a three to four vote and hence might be referred to the Grand Chamber. Yet it is especially the strong and diverging conclusions of the majority and the minority on a sensitive issue like the protection of social security qua property rights issue, that make this judgment worth elaborating upon. Continue reading

News

Thu 26. February 22:56
Poland: trust no one but the law
Wed 25. February 09:00
Does property protection entail a right to obtain social benefits under the ECHR?
Tue 24. February 15:35
The “Anti-Mosques” Law of Lombardy and Religious Freedom in Italy

Up for Debate

Poland: trust no one but the law

Adam Bodnar

The Strasbourg court has found that Poland violated the European Convention on Human Rights due to its collaboration in the rendition, imprisonment and torture of two terrorism-suspects (Al-Nashiri and Abu-Zubaydah) by CIA officers. This judgment may be interpreted as an accusation against the US. But neither the ECtHR nor any international human rights’ court has any jurisdiction over the assessment of individual complaints against the US. Therefore, individual cases can only be taken up against supportive countries such as Macedonia, Poland, Lithuania or Romania, but cannot be lodged against the major perpetrator. This is like punishing the fence, but not more

165 Adam Bodnar

Does property protection entail a right to obtain social benefits under the ECHR?

Ingrid Leijten

It goes without saying that a supranational court’s engagement with national social policy is a sensitive endeavour. This is all the more so when the norms this court is protecting are of a ‘classic’, rather than of a socio-economic kind. In the recent case of Béláné Nagy v. Hungary the European Court of Human Rights seemingly recognises a right to obtain social security benefits under Article 1 of Protocol No. 1 to the European Convention on Human Rights, which contains the right to protection of property. The case was decided by a three to four vote and hence might be referred to the Grand Chamber. Yet it is especially the strong and diverging conclusions of the majority and the minority on a sensitive issue like the protection of social security qua property rights issue, that make this judgment worth elaborating upon. Continue reading

340 Ingrid Leijten

The “Anti-Mosques” Law of Lombardy and Religious Freedom in Italy

Giancarlo Anello

Lombardy, Italy’s most populous region, has just enacted a law that seems to be designed to make life for Muslims as hard as possible. On January 27th, the Council of the Lombardy Region has enacted amendments to the Regional Law that regulates the planning of buildings and other structures for religious purposes. These amendments make it extremely cumbersome to build new places of worship for all non-established religious denominations, particularly Muslims – while the still dominant Catholic Church remains exempted from the regulation. Discrimination is not the only aspect of the new law that makes its constitutionality look more than questionable. Continue reading

339 Giancarlo Anello

Who’s Afraid of National Parliaments’ “Green Card”?

Jan Grinc

Five years from the entry of the Lisbon Treaty into force, national parliaments are evaluating the means of their influence and control over the EU law and policies. New ideas and improvements of existing procedures are being tabled. One of them is the so-called "green card" initiative, explored recently at least by Danish, Dutch and British parliament. In my opinion none of the objections against this proposal is convincing, and there are indeed good reasons for trying out the green card. Continue reading

338 Jan Grinc

Welcoming Russian Navy to Cyprus Should Be a Violation of EU Law

Dimitry Kochenov

The struggle for the continued observance of Article 2 TEU values in the EU is on-going. Arguably, it is now much more acute than ever before. The news that Cyprus considers granting the Russian military access to military bases on its territory is just another urgent reminder of the mounting necessity to upgrade the Union’s role in dealing with values crises in the Member States – both internally and externally – issues which are indispensable for the Union’s survival. Continue reading

42 Dimitry Kochenov

CIA Torture Sites in Poland: Thirty Million Dollars for Torture Victims

Adam Bodnar

According to the US Senate report into the CIA rendition programme and prisons, US authorities paid 30 million dollars to Polish secret services in return for the opportunity to establish and operate the CIA detention facility in Stare Kiejkuty. Our country clearly has a lesson to learn. This lesson is to create a comprehensive assistance programme for victims of torture. A sum of 30 million dollars should be enough to finance such a system over the few years following its establishment. Continue reading

165 Adam Bodnar

Will the empire strike back? Strasbourg’s reaction to the CJEU’s accession opinion

Tobias Lock

Annual reports by international courts are rarely the stuff of controversy or harbingers of judicial conflict. Thus the strongly worded response to the European Court of Justice’s (CJEU) Opinion 2/13 in the annual report of the European Court of Human Rights (ECtHR) presented by President Spielmann yesterday warrants a few comments. It is recalled that the CJEU considered the draft agreement on the EU’s accession to the ECHR to be incompatible with the Treaties on a number of grounds. Academic criticism followed promptly, not least on this blog. The short passage in the President’s foreword to the ECtHR’s annual report, probably squeezed in in the last minute, constitutes a first reaction by the institution most affected by the Opinion. Continue reading

288 Tobias Lock
 Focus  Tensions between constitutional and international law

At a crossroads: Russia and the ECHR in the aftermath of Markin

Ilya Levin

As part of Verfassungsblog’s topical focus on the prevailing tensions between international and national constitutional law, we go east and take a look at Russia and its unsteady relationship with the European Convention of Human Rights (ECHR) – particularly the lately arisen tensions between the Russian Constitutional Court (CCR) and Strasbourg in the wake of the ECtHR’s decision in the Markin case. First, and in a more general manner, we briefly review the theories conceptualizing the relationship between domestic and international law, which traditionally go by the names of monism and dualism. In doing so, we do not miss the point that, as national constitutional practice in a variety of member states of the ECHR shows, conceptual clarity in terms of commitment to one or the other grand theory is often blurred, if not contradicted (I.). Clearly, Russia is no exception (II.). The Markin case marks a turning point in the relationship between the CCR and the ECtHR as Strasbourg, for the first time, overruled a decision of the CCR, which spurred a heated constitutional debate. The repercussions are yet to be seen (III.). Continue reading

181 Ilya Levin

Ritual Animal Slaughter and Public Morality: a Comment on the Decision of the Polish Constitutional Tribunal

Anna Śledzińska-Simon

A landmark case of a constitutional court can be told by its impact on consecutive judgments and our understanding of constitutional law and practice. Yet, in the jurisprudence of the Polish Constitutional Tribunal, there are a handful of cases considered as landmark decisions not because of their outcome or the way they are decided, but because the Tribunal got them wrong. In this sense, the Polish ritual animal slaughter case is a landmark decision. Continue reading

335 Anna Śledzińska-Simon

A Fresh Start: How to Resolve the Conflict between the ICJ and the Italian Constitutional Court

Remo Caponi

Three months ago the Italian Constitutional Court decided that it would infringe the fundamental rights of Italians to follow the International Court of Justice and uphold state immunity as a barrier for individual claims of war crime victims (decision no. 238 of 2014). First commentators have pointed out the conflict between the two courts and the regime collision between international and domestic law. Germany’s possible reaction to the Italian breach of international law has also been taken into consideration. Finally, the possible role of the Italian Constitutional Court’s reasoning in the further development of international law with regard to state immunity in cases of serious human rights violations, which amount to the breach of a jus cogens rule, has been the focus of some contributions. I would suggest making a fresh start in this debate. What we need right now are procedural mechanisms to harmonize for the future, as far as possible, the claim of sovereign immunity and access to the courts, in case a state happens to be in a better position to settle the dispute at the international level in the interests of the victims. Continue reading

334 Remo Caponi
Show all Posts

Op-ed

Too big to handle: Why we are so bad at preventing catastrophes

2014-10-12 Disaster
(c) sea turtle, Flickr CC BY-NC-ND 2.0

Financial crises, genocides, environmental catastrophes, epidemics, wars – constantly things happen we knew exactly that they would a) happen with some likeliness or even certainty, and b) be absolutely horrible. And still we have let it happen. And not just because we could not help it. But because somehow, all things considered, we did not want to. We haven’t done what we could have done. We didn’t want to know what we could have known. What is this strange phenomenon about? And how can we improve ourselves? To find answers to those questions, last week an extraordinarily illustrious group of scholars from all sorts of disciplines had assembled at the Wissenschaftskolleg in Berlin. Continue reading

Will an independent Scotland stay in the EU?

2014-09-05 Schottland
(c) James Stringer, Flickr CC BY-NC 2.0

In less than two weeks we will know whether or not Scotland will remain part of the UK. In the polls, the No camp still leads, but just by a slight and shrinking margin. It might actually happen what has never happened before: One EU member state becomes two. Or, will they? Continue reading

Bosnia and the problem of generalizable human rights gauges

2014-07-15 Bosnien
(c) Amanda Robinson, Flickr CC BY-BC-ND 2.0

For five years Bosnia has been digging its heels in, refusing to align its constitution to the demands of the ECHR and to grant non-bosniacs, -serbs and -croats the right to be elected to its second chamber of legislation. Now, the Strasbourg Court has once again declared this state of affairs unacceptable. But what if it would hold other constitutional systems, such as that of the European Union, up to the standard it applies in the Bosnian case? Continue reading

Burqa Ban: My Right to Be Left Alone is Your Tough Luck

2014-07-07 Trespassing
(c) Michael Dorausch, Flickr CC BY-SA 2.0

An often heard argument in the debate on the burqa ban decision by the ECtHR is that a minimum of "vivre ensemble" is a condition of all freedom and hence a legitimate balancing factor with the rights to privacy and religious freedom. This, though, is irreconcilable with the "right to be left alone". Continue reading

Show all posts