Revista Interamericana y Europea de Derechos Humanos (Vol. 6, 2013)

Este reporte fue elaborado por Oswaldo Ruiz-Chiriboga.

El último volumen de la Revista Interamericana y Europea de Derechos Humanos – Inter-American and European Human Rights Journal (Vol. 6, 2013) ya se encuentra disponible. Esta es la tabla de contenidos:

Auctioning Spectrum Access to Commercial Broadcasters – a Human Rights Perspective 

F. Mendez Powell

Abstract: The auction system is the one preferred for the assignment of spectrum access rights by those who prioritize economic efficiency. However, commentators who are primarily concerned with freedom of expression or human rights in general tend to be mor e wary of the use of auctions. This article argues that the use of auctions in the assignment of broadcasting licences is not necessarily incompatible with State obligations under international human rights law, and that instead it may actually assist States in the fulfilment of those obligations, provided the use of the system is limited only to commercial licences and an adequate number of frequencies is separately reserved for non-commercial purposes and assigned through different mechanisms

Medical-Related Expulsion and Interpretation of Article 3 of the European Convention on Human Rights

E. Webster

Abstract: This article critically reviews the jurisprudence of the European Court of Human Rights (‘the Court’) in cases of expulsion of non-nationals receiving medical care for a serious health condition, based upon Article 3 of the European Convention on H uman Rights. On only one occasion has the Court found a violation of Article 3. To date, critique of this jurisprudence has focused on two points: policy considerations evident in the case-law, and the Court’s refusal to find a violation in respect of applicants not in a terminal phase of illness. This article begins from an alternative perspective. It observes that the Court, whose approach has been mirrored by applicants and domestic courts, has not transparently situated the alleged inhuman or degrading treatment within circumstances of medical-related expulsion; a feature that is unique within the wider body of Article 3 jurisprudence. The extent to which recognising this atypical aspect can shed new light upon the past and future trajectory of the case-law is explored. Three ways of situating the Article 3 harm are considered: inhuman/degrading treatment brought about by sources within the receiving state; inhuman/degrading treatment inflicted by the expelling state; and inhuman/degrading treatment fl owing from illness. It is argued that more explicit engagement with the nature of the alleged harm would be a progressive step towards a richer and appropriately justified jurisprudence. This is important for the reasoning of the Court in medical-related expulsion cases and, more broadly, for the development of the conceptual scope of Article 3.

Conception, Fertilization and the Onset of Human Personhood: A Note on the Case Artavia Murillo et al. v. Costa Rica

E. Rivera López

Abstract: In this critical note it is argued that one of the crucial arguments of the recent judgment by the Inter-American Court of Human Rights in Artavia Murillo fails and shows a common conceptual confusion in legal argumentation. The Court considers tha t the word “conception” in paragraph 4(1) of the American Convention on Human Rights must be understood as “implantation,” and not, as claimed by one part of the doctrine and the minority opinion in this case, as “fertilization.” The normative consequence of this interpretation is that preimplantation embryos (for example, embryos in vitro) do not enjoy the legal protections established by the Convention, that is, the protection (in general) of a right to life. The main argument for this interpretation is that a preimplantation embryo is not viable unless it is implanted in the uterus. The argument is fallacious, since it attempts to support a normative conclusion on scientific, empirical premises alone.  

The Euro-American Human Rights Dialogue and the Crimes of the Francoist Regime

J.J. García Blesa, V.L. Gutiérrez Castillo

Abstract: On 14 April 2010, the Argentinean Supreme Court referred a complaint filed by 150 Spanish citizens, victims and relatives of victims of the Francoist regime, to the competent lower Federal Court of Buenos Aires for further investigation. This is th e American reply, or the beginning of a reply, to the European system of human rights in a dialogue about the international protection of human rights through the exercise of universal jurisdiction. This dialogue had started a few years earlier when Spanish courts prosecuted, tried and punished several human rights violations committed during the Argentinean dictatorship. This paper presents the failure of the Spanish and European continental human rights systems to deal with the case of the atrocities perpetrated in Spain during the civil war and the Francoist dictatorship in accordance with the international rights of the victims and their relatives to truth and justice. It then turns to examine the main aspects of the Argentinean current attempt to fill in the gap of protection left by Europe through the criminal investigation of these atrocities.  

The Judicial Protection of Human Rights in Europe after the Accession of the European Union to the European Convention on Human Rights

N. Van Belle

Abstract: With the Treaty of Lisbon, which amends Article 6(2) of the Treaty on the European Union (TEU), and obliges the European Union (EU) to accede to the European Convention on Human Rights (ECHR), and with the Draft Accession Agreement being finalised,  the accession of the EU to the ECHR seems to be close at hand. However, the question still remains whether the EU, with its specific legal order, will be able to function in the ECHR system. On the basis of the Draft Accession Agreement, this article critically analyses the accession from a procedural point of view in order to anticipate on what the protection of human rights will look like after the accession and to underline the procedural difficulties that remain unanswered, while at the same time making some suggestions on how to overcome these difficulties.  

Delitos internacionales: del ius (non) puniendi del Estado-nación a un deber puniendi imperativo de ius cogens?

J.A.E. Vervaele

Abstract: The article deals with the positive obligation to investigate, prosecute and punish international crimes of serious human rights violations by way of jus cogens. In this sense this obligation is part of the nullum crimen nulla poena sine lege princ iple. The author questions whether, to avoid impunity, this obligation must be converted into nullum crimen nulla poena sine iure, inter alia via ius cogens.

El alcance del derecho al recurso en la jurisprudencia internacional y su recepción en el ámbito doméstico argentino

M. De Las Mercedes López Alduncin, P.D. Moyano Ilundain

Abstract: The establishment of procedures without a possibility of appeal has emerged as a means to speed up criminal prosecutions. In order to try to compensate for the loss of challenging a decision, typical of a single-judge court, multi-judge courts have  been created by the constitution. However, Article 8(2)(h) of the American Convention on Human Rights establishes the right to fully appeal convictions. The Inter-American Court of Human Rights has interpreted this article in Herrera Ulloa v. Costa Rica. The interpretation given to this clause by the Court in the aforementioned case has led the Supreme Court of Justice of Argentina to resort to the old “Leistungsmethode” theory in order to determine the scope of the ordinary review imposed by international standards. Our contribution aims to analyse the concept of appeal, taking into account the German “Leistungsmethode”. Likewise, the contribution aims to identify the challengeable aspects in cases of condemnatory judgments, and to provide a brief review of regulatory schemes on double jeopardy. It is argued that the establishment of horizontal remedies constitutes a normative advance which reconciles the possibility to appeal a judgment of acquittal with the full operability of the guarantee.  

How Does the European System of Human Rights Protect Detainees in Bad Health?

C. Burbano Herrera

Abstract: Interim measures in the European human rights system may be defined as a tool, the purpose of which is to prevent irreparable harm to persons who are in a situation of extreme gravity and urgency. Interim measures result in immediate protection bei ng offered by the member state to beneficiaries in compliance with the order issued by the European Court. This article explores which typologies of cases have lead the former European Commission of Human Rights and the former and current European Court of Human Rights to apply or reject provisional measures in cases related to persons deprived of their liberty. The cases concern situations in which (a) their own nationals and non-national prisoners urgently need medical attention and (b) non-nationals with an order of expulsion or extradition whose life or health would be in serious danger in case of deportation from the member state. In the circumstances mentioned above, the adoption of interim measures for detained people imply the opportunity to be examined by a doctor, to receive medical treatment in the prison hospital or in a specialised institution, or imply the suspension of the expulsion or extradition order while the European Court has the opportunity to examine their case. Through an analysis of the case law, this contribution describes the circumstances the petitioners are in, the order issued by the European supervisory organs in those situations, the State’s compliance and the possibility that interim measures will be lifted.