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

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

Author: Laurens Lavrysen; Natasa Mavronicola
Publisher: Hart Publishing
ISBN: 9781509937875

Published In: November 2020
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509945399

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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.

The collection explores four interlocking themes surrounding the issue of coercive human rights:

1. Key threads in the doctrine of the European Court of Human Rights on duties to mobilise the criminal law as a means of delivering human rights protection 2. 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 3. 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

4. The (prospective) evolution of coercive human rights doctrine and its application within national jurisdictions

Introduction - Laurens Lavrysen and Natasa Mavronicola

Section I: Key threads in ECtHR doctrine

1. Positive obligations and the criminal law: a bird's eye view on the Court's case law – Laurens Lavrysen

2. Positive obligations and coercion: the need for a proper balance – Paul Lemmens and Marie Courtoy

Section II: Perspectives on victims' protection and redress

3. Victims and reparative justice at the ECtHR: scrutinising the coercive dimension of reparations – Alina Balta

4. The concept of vulnerability in the ECtHR's coercive human rights case law – Corina Heri

5. The duty to prosecute hate speech in wider context – Stephanos Stavros

Section III: Critical reflections: theory, impact, limitations

6. A view from criminal law theory: positive obligations in light of the principle of criminalisation as a last resort – Nina Peršak

7. Coercive overreach and the dilution of human rights: potential dangers of requiring recourse to the criminal law – Natasa Mavronicola

8. The limitations of a criminal law approach in a transitional justice context – Brice Dickson

9. Separating protection from the exigencies of the criminal law: achievements and challenges under Article 4 ECHR – Vladislava Stoyanova

Section IV: Uncharted waters for the ECtHR's coercive duties doctrine

10. Coercive human rights beyond the criminal law – Liora Lazarus

11. Coercive human rights and unlawfully obtained evidence in domestic criminal proceedings – Kelly Pitcher

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