MEN IN THE AGE OF (FORMAL) EQUALITY: THE CURIOUS CASE OF KHAMTOKHU AND AKSENCHIK

Milica Novaković

Sažetak


Equality before the criminal law and protection of persons with restricted personal liberty in the European states diverge. The European Court of Human Rights has been engaged in establishing and protecting standards and principles for fair pre-conviction proceedings. However, when it comes to sentencing, sex and gender equality, and non-discrimination in sentencing, the European Court faces its own limitations. It has established that there is no consensus in matters of (un)equal treatment of men and women in criminal sentencing in Europe, but has failed to address a more significant issue – is exemption of an entire sex justifiable and reasonable, even in the absence of the afore consensus at European level. This analysis attempts to answer the following questions that arose from this case: Does formal equality eliminate discrimination? When should formal equality yield to achieve genuine equality? Is gender equality attainable and how do we regulate it?


Pojmovne odrednice


Discrimination; Formal and substantive equality; Life imprisonment; Margin of appreciation; Sex and gender.

Ceo tekst:

PDF (English)

Reference


Candia, Gonzalo. 2017. Interpretation of Regional Human Rights Conventions and Originalism: Different Context, Same Myths. DPCE Online 3: 597–606. http://www.dpceonline.it/index.php/dpceonline/article/view/431, last visited July 30, 2019.

Čahojová, Kristína, Nikoleta Bitterová. 2018. Life Imprisonment from the Perspective of Gender Equality: Who Has Really Won the Case?. Common Law Review 15: 27–30.

Davis, Megan. 2009. International Human Rights Law, Women’s Rights and the Intervention. Indigenous Law Bulletin 10: 11–14.

Dimitrijević, Vojin, Dragoljub Popović, Tatjana Papić, Vesna Petrović. 2006. Međunarodno pravo ljudskih prava. Belgrade: Belgrade Centre for Human Rights.

Fredman, Sandra. 2016. Substantive Equality Revisited. International Journal of Constitutional Law 3: 712–738.

Gerards, Janneke. 2018. Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights. Human Rights Law Review 3: 495–515.

Gerards, Janneke. 2017. The Margin of Appreciation Doctrine, the Very Weighty Reasons Test and Grounds of Discrimination. The European Convention on Human Rights and the Principle of Non-Discrimination, ed. Marco Balboni. Naples: Editoriale Scientifica. Forthcoming.

Harris, David, Michael O’Boyle, Colin Warbrick. 2014. Law of the European Convention on Human Rights. 3 ed. Oxford: Oxford University Press.

Kapotas, Manos. 2014. A Tale of Two Cities: Positive Action as “Full Equality” in Luxembourg and Strasbourg. 188–214. Human Rights Law in Europe: The Influence, Overlap and Contradictions of the EU and the ECHR, ed. Kanstantsin Dzehtsiarou, Theodore Konstadinides, Tobias Lock, Noreen O’Meara. Abingdon, New York: Routlege, 2014, Routledge Research in Human Rights Law.

McKean, Warwick. 1983. Equality and Discrimination under International Law. Oxford: Oxford University Press.

Nikolaidis, Charilaos. 2015. The Right to Equality in European Human Rights Law: The Quest for Substance in the Jurisprudence of the European Courts. 1st ed. Abingdon, New York: Routlege, 2015, Routledge Research in Human Rights Law.

O’Connell, Rory. 2009. Substantive Equality in the European Court of Human Rights?. Michigan Law Review First Impressions 107: 129–133.

Radačić, Ivana. 2008. Critical Review of Jurisprudence: An Occasional Series. Gender Equality Jurisprudence of the European Court of Human Rights. The European Journal of International Law 4: 841– 857.

Whitman, James Q. 2009. Equality in Criminal Law: The Two Divergent Western Roads. Journal of Legal Analysis 1:119–165.

Wildhaber, Luzius, Arnaldur Hjartarson, Stephen Donnelly. 2013. No Consensus on Consensus? The Practice of the European Court of Human Rights. Human Rights Law Journal 7–12: 248–263.

Zysset, Alain. 2017. The ECHR and Human Rights Theory: Reconciling the Moral and Political Conceptions. Abingdon, New York: Routlege, 2017, Routledge Research in Human Rights Law.


Povratni linkovi

  • Trenutno nema povratnih linkova