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

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