Coercive Human Rights: Positive Duties to Mobilise the Criminal Law Under the ECHR

Description

Traditionally, human rights have protected those facing the sharp edge of the criminal justice system. But over time human rights law has become increasingly infused with duties to mobilise criminal law towards protection and redress for violation of rights. These developments give rise to a whole host of questions concerning the precise parameters of coercive human rights, the rationale(s) that underpin them, and their effects and implications for victims, perpetrators, domestic legal systems, and for the theory and practice of human rights and criminal justice. This collection addresses these questions with a focus on the rich jurisprudence of the European Court of Human Rights (ECtHR). The collection explores four interlocking themes surrounding the issue of coercive human rights: First, the key threads in the doctrine of the ECtHR on duties to mobilise the criminal law as a means of delivering human rights protection. Secondly, the factors that contribute to a readiness to demand coercive measures, including discrimination and vulnerability, and other key justificatory reasoning shaping the development of coercive human rights. Thirdly, the most pressing challenges for the ECtHR's coercive duties doctrine, including: - how it relates to theories and rationales of criminalisation and criminal punishment; - its implications for the fundamental tenets of human rights law itself; - its relationship to transitional justice objectives; and - how (far) it coheres with the imperative of effective protection for persons in precarious or vulnerable situations. Fourthly, the (prospective) evolution of the coercive human rights doctrine and its application within national jurisdictions. Foreword Contents Notes on Contributors 1. Coercive Human Rights: Introducing the Sharp Edge of the European Convention on Human Rights PART I: KEY THREADS IN ECtHR DOCTRINE 2. Positive Obligations and the Criminal Law: A Bird’s-Eye View on the Case Law of the European Court of Human Rights I. Introduction II. Substantive versus Procedural Positive Obligations III. The Obligation to Criminalise IV. The Obligation to Punish V. Conclusion 3. Positive Obligations and Coercion: Deterrence as a Key Factor in the European Court of Human Rights’ Case Law I. Introduction II. General Context: The Positive Obligation to Protect III. The Substantive Obligation to Criminalise Certain Acts IV. The Procedural Obligation to Investigate, to Prosecute and to Punish V. The Convention as a Limitation of National Criminal Policy? PART II: PERSPECTIVES ON VICTIMS’ PROTECTION AND REDRESS 4. Retribution through Reparations? Evaluating the European Court of Human Rights’ Jurisprudence on Gross Human Rights Violations from a Victim’s Perspective I. Retributive Responses as Reparations II. Victims and Retributive Responses III. Reparations at the ECtHR IV. Discussion V. Conclusion 5. Shaping Coercive Obligations through Vulnerability: The Example of the ECtHR I. Introduction II. Vulnerability in the Court's Article 3 Case Law III. Three Examples of the Coercive Power of Vulnerability IV. Vulnerability and the Risk of Coercive Overreach V. Conclusion 6. Criminal Law Responses to Hate Speech: Towards a Systematic Approach in Strasbourg? I. Introduction II. The CoE and Hate Speech III. Criminal Law Mobilisation to Counter Hate Speech in Freedom of Expression Cases before the ECtHR IV. The Court Recognises a Convention-Based Obligation to Prosecute Hate Speech V. Prosecuting Hate Speech and Other Positive Obligations under the Convention VI. In What Kind of Cases Would/Should the Obligation to Prosecute Hate Speech Arise? VII. Discharging the Obligation to Prosecute Hate Speech VIII. Conclusions PART III: CRITICAL REFLECTIONS: THEORY, IMPACT, LIMITATIONS 7. Positive Obligations in View of the Principle of Criminal Law as a Last Resort I. Introduction II. The Principle of Criminal Law as a Last Resort III. Positive Obligations Affecting Criminal Law IV. Conclusion 8. Sowing a ‘Culture of Conviction’: What Shall Domestic Criminal Justice Systems Reap from Coercive Human Rights? I. Introduction II. The Rise of the Penal State in Europe III. ECtHR Case Law on Coercive Human Rights IV. The Modern Slavery Act 2015 V. Conclusion 9. Coercive Overreach, Dilution and Diversion: Potential Dangers of Aligning Human Rights Protection with Criminal Law (Enforcement) I. Introduction II. Duties to Mobilise the Criminal Law in the Protection of Life and Personal Integrity under Articles 2 and 3 ECHR III. The Danger of Coercive Overreach IV. The Prospect of Weakening Human Rights Standards V. The Problem of Diversion VI. Conclusion 10. Separating Protection from the Exigencies of the Criminal Law: Achievements and Challenges under Article 4 ECHR I. Introduction II. Overview of the Case Law under Article 4 III. The Positive Obligation to Identify Victims in the Case Law IV. Challenges Ahead 11. The Limitations of a Criminal Law Approach in a Transitional Justice Context I. Introduction II. International Principles on Counter-terrorism and Transitional Justice III. Tampering with the Criminal Law in a Conflicted Society IV. Respect for Human Rights and for the Principle of Legality V. Human Rights and the Criminal Law VI. Expanding Accountability for Violations of the Right to Life VII. Investigations Not Followed by Prosecutions VIII. Maintaining Effectiveness, Independence, Co-operation and Respect IX. Conclusion PART IV: UNCHARTED WATERS FOR THE ECtHR’S COERCIVE DUTIES DOCTRINE 12. Preventive Obligations, Risk and Coercive Overreach I. Preventive Operational Obligations II. Risk Aversion and Preventive Obligations III. Case Studies on Preventive Obligations IV. Conclusion 13. Coercive Human Rights and Unlawfully Obtained Evidence in Domestic Criminal Proceedings I. Introduction II. Coercive Human Rights in Domestic Criminal Proceedings: The Dutch Example III. The Procedural Coercive Obligation under the ECHR IV. Implications of the Procedural Coercive Obligation for the Exclusion of Evidence V. The Procedural Coercive Obligation as a Reason Not to Exclude Evidence and the Risk of Coercive Overreach: Returning to the Dutch Example Postscript: Coercive Human Rights in Times of Coronavirus Index