scholarly journals Moving Beyond Judicial Conflict in the Name of the Pre-Eminence of Fundamental Human Rights

2021 ◽  
pp. 331-335
Author(s):  
Valerio Onida
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
Armed Forces ◽  
Fundamental Rights ◽  
State Immunity ◽  
International Court ◽  
The Republic ◽  
The Right ◽  
Judicial Protection ◽  
Right Of Access

AbstractSentenza 238/2014 can be criticized insofar as it seems to ground Italy’s refusal to comply with the Jurisdictional Immunities Judgment of the International Court of Justice on the basis of the right of access to a judge for the victims of the conduct of German armed forces during World War II. Indeed, the principle of state’s immunity to the civil jurisdiction of other states regarding the conduct of their own armed forces does not in itself breach a victim’s right of access to a judge, which theoretically in this case might also be granted by a German court. However, Sentenza 238/2014 has the merit of highlighting, in the specific case of the Italian Military Internees (IMIs), the violation of the victims’ right to an effective judicial protection of their fundamental rights, given that German jurisdictions excluded every reparation that favoured IMIs. Such fundamental rights must prevail over the international rules relating to state immunity because, according to the supreme principles of the Italian constitutional order and to international law itself, fundamental human rights violations related to crimes against humanity must benefit from an effective protection. The impasse between Italy and Germany should be solved through a new joint initiative between the two governments (carried out ideally under a common understanding of the two Presidents of the Republic), which should examine the applicants’ cases in order to grant them reparation. Though symbolic, such reparation will have an important moral dimension.

scholarly journals STATE IMMUNITY AND THE RIGHT OF ACCESS TO A COURT UNDER THE EU CHARTER OF FUNDAMENTAL RIGHTS

2016 ◽  
Vol 65 (1) ◽  
pp. 213-228
Author(s):  
Andrew Sanger
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Domestic Service ◽  
European Convention ◽  
State Immunity ◽  
Service Staff ◽  
Charter Of Fundamental Rights ◽  
The Right ◽  
Right Of Access ◽  
The Eu

AbstractThis article examines the application of the right of access to a court as guaranteed by Article 47 of the EU Charter of Fundamental Rights in cases involving State immunity. First, it considers the scope of the right of access to a court under the Charter, including its relationship with Article 6(1) of the European Convention on Human Rights, and the ways in which the Charter is given effect within UK law. Second, the article critically examines the Court of Appeal’s application of both Article 6(1) ECHR and Article 47 of the EU Charter in Benkharbouche v Sudan, a case brought by domestic service staff of foreign embassies based in London against Sudan and Libya respectively. It argues that the Court’s statement that the right of access to a court is not engaged in immunity cases because the court has no jurisdiction to exercise – an analysis which relies on Lord Millett’s reasoning in Holland v Lampen-Wolfe and the dicta of Lords Bingham and Hoffmann in Jones v Saudi Arabia – is erroneousness: the right of access to a court is always engaged in immunity cases because immunity does not deprive the courts of jurisdiction ab initio. The article also argues that contrary to the Court’s reasoning on Article 47 of the EU Charter, the right of access to a court does not need to have horizontal effect in a private between private parties: the right is always enforced against the forum State; it has indirect, not horizontal, effect.

Simoncioni v. Germany

2015 ◽  
Vol 109 (2) ◽  
pp. 400-406
Author(s):  
Riccardo Pavoni
Keyword(s):  
Human Rights ◽  
Crimes Against Humanity ◽  
Access To Justice ◽  
Constitutional Court ◽  
Sovereign Immunity ◽  
International Court Of Justice ◽  
International Court ◽  
Compensation Claims ◽  
The Right ◽  
Right Of Access

With Judgment No. 238/2014, the Italian Constitutional Court (hereinafter Court) quashed the Italian legislation setting out the obligation to comply with the sections of the 2012 decision of the International Court of Justice (ICJ) in Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening) (Jurisdictional Immunities or Germany v. Italy) that uphold the rule of sovereign immunity with respect to compensation claims in Italian courts based on grave breaches of human rights, including—in the first place—the commission of war crimes and crimes against humanity. The Court found the legislation to be incompatible with Articles 2 and 24 of the Italian Constitution, which secure the protection of inviolable human rights and the right of access to justice (operative paras. 1, 2).

scholarly journals Free legal aid in the context of the right of access to court

2020 ◽  
Vol 59 (89) ◽  
pp. 65-82
Author(s):  
Dušica Palačković ◽  
Jelena Čanović
Keyword(s):  
Human Rights ◽  
National Level ◽  
European Convention ◽  
Quality Level ◽  
The European Union ◽  
Legal Aid ◽  
European Court ◽  
The Republic ◽  
The Right ◽  
Right Of Access

The Constitution of the Republic of Serbia explicitly regulates that free legal aid shall be stipulated by the law. In a series of reports on the progress of the Republic of Serbia in the process of joining the EU, there are warnings about the unacceptably low quality level and efficiency of the judiciary, and indications that there is a need to regulate the legal aid system. Finally, this matter was regulated by enacting the Legal Aid Act of the Republic of Serbia, which came into force on 1st October 2019. In addition to the conceptual definition of legal aid, the paper analyzes the right of access to court as a constituent element of the right to a fair trial prescribed in Article 6 of the European Convention on Human Rights, which entails the right to legal aid. The regulation of legal aid at the national level has to meet the standards formulated at the European Union level as well as the standards formulated through the practice of the European Court of Human Rights. In that context, the paper analyzes the regulations and decisions, i.e. the widely recognized and accepted standards. The Legal Aid Act of the Republic of Serbia has been analyzed in the context of meeting these standards, especially in relation to the conditions for granting the right to legal aid and the circle of beneficiaries and providers of certain types of legal aid.

scholarly journals Tajemnica adwokacka jako element realizacji prawa do sprawiedliwego procesu sądowego oraz prawa do poszanowania korespondencji

2021 ◽  
Vol 33 (2) ◽  
pp. 7-21
Author(s):  
Natalia Banach ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Private Life ◽  
Fundamental Rights ◽  
Moral Norms ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Republic ◽  
The Right

The issue of exemption from the attorney-client privilege and the nature of this attorney-client privilege is widely discussed both in the literature on the subject and in the doctrine. In order to analyze this subject, it was necessary to interpret the provisions of the Law on the Bar Ac (26 May 1982), the provisions of the Code of Bar Ethics (23 December 2011) the Constitution of the Republic of Poland (2 April 1997), both guarantees enshrined in the Convention for the Protection of Human Rights and Fundamental Rights of liberty from 1950. The interpretation was made in conjunction with Polish case law common courts and case law of the European Court of Human Rights. This also presents the view of the polish Ombudsman’s Office. Given that the professional secrecy of lawyers is an inseparable element of justice, it would be wrong to omit the generally accepted moral norms of society in relation to the procedural role of a lawyer. The thesis put forward that the professional secrecy of lawyers is part of the implementation of the right to a fair trial and the right to respect for private life. The purpose of the work was to emphasize the essence of lawyers’ secrecy as an inseparable element of defense of the parties to the proceedings and to indicate interpretation differences between Polish courts and the case law of the European Court of Human Rights.

scholarly journals Who is Entitled to the Right to Respect for Family Life Under the European Union Law?

Teisė ◽  
2019 ◽  
Vol 110 ◽  
pp. 24-45
Author(s):  
Ingrida Danėlienė
Keyword(s):  
European Union ◽  
Human Rights ◽  
Family Life ◽  
National Level ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
European Union Law ◽  
The Republic ◽  
The Right

[full article, abstract in English; abstract in Lithuanian] The article investigates the right to respect for family life, established by Article 7 of the Charter of Fundamental Rights of the European Union, as applied and interpreted in conjunction with the right to marry and the right to found a family, laid down in Article 9 of the Charter. The standard of protection set by European Union law regarding these rights is identified by taking into account the standard of protection of the relevant rights established by the European Convention on Human Rights and the established case law of the European Court of Human Rights. Topical issues relating to the consolidation of these individual rights at the national level in the Republic of Lithuania are also addressed in the article. In doing so, an emphasis is laid on the content of the concepts of “family” and “family life” under supranational and national law.

scholarly journals State Immunity Before the International Court of Justice: Jurisdictional Immunities of the State (Germany v Italy)

2013 ◽  
Vol 44 (1) ◽  
Author(s):  
Matthew McMenamin
Keyword(s):  
World War Ii ◽  
Armed Forces ◽  
The State ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
State Immunity ◽  
German Armed Forces ◽  
Court Of Justice ◽  
International Court ◽  
Jus Cogens

The International Court of Justice recently gave judgment in Jurisdictional Immunities of the State. The case concerned German state immunity from civil claims brought in Italian courts by victims of serious violations of international humanitarian law committed by German armed forces during World War II. The Court offered a valuable clarification of the relationship between state immunity and jus cogens norms at customary international law. The conservative reasoning was thorough and extensive and the decision is likely to ossify the evolution of state immunity.

scholarly journals Raamwerkwetgewing ter Verwesenliking van die Reg op Toegang tot Voldoende Voedsel

2017 ◽  
Vol 15 (5) ◽  
pp. 228
Author(s):  
Anél Terblanche ◽  
Gerrit Pienaar
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Food Security ◽  
South African ◽  
The South ◽  
The Republic ◽  
The Right ◽  
Human Rights Based Approach ◽  
Right Of Access ◽  
Sufficient Food

Various South African government reports list food security as a development priority. Despite this prioritisation and despite the fact that South Africa is currently food self-sufficient, ongoing food shortages remain a daily reality for approximately 35 percent of the South African population. The government's commitment to food security to date of writing this contribution manifests in related policies, strategies, programmes and sectoral legislation with the focus on food production, distribution, safety and assistance. A paradigm shift in the international food security debate was encouraged during 2009, namely to base food security initiatives on the right to sufficient food. During a 2011 visit to South Africa, the Special Rapporteur for the Right to Food of the United Nations, accordingly confirmed that a human rights-based approach to food security is necessary in the South African legal and policy framework in order to address the huge disparities in terms of food security (especially concerning geography, gender and race). A human rights-based approach to food security will add dimensions of dignity, transparency, accountability, participation and empowerment to food security initiatives. The achievement of food security is further seen as the realisation of existing rights, notably the right of access to sufficient food. The right of access to sufficient food, as entrenched in section 27(1)(b) of the Constitution of the Republic of South Africa, 1996 will accordingly play a central role within a human rights-based approach to food security. Section 27(2) of the Constitution of the Republic of South Africa, 1996 qualifies section 27(1)(b) by requiring the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of the section 27(1) rights. The South African government's commitment to food security, as already mentioned, currently manifests in related policies, strategies and programmes, which initiatives will qualify as other measures as referred to in section 27(2) mentioned above. This contribution, however, aims to elucidate the constitutional duty to take reasonable legislative measures as required by section 27(2) within the wider context of food security. This contribution is more specifically confined to the ways in which a human rights-based approach to food security can be accommodated in a proposed framework law as a national legislative measures. Several underlying and foundational themes are addressed in this contribution, amongst others: (a) the relationship between food security and the right of access to sufficient food; (b) food security as a developmental goal; and (c) the increasing trend to apply a human rights-based approach to development initiatives in general, but also to food security.

Benkharbouche v. Embassy of the Republic of Sudan (Secretary of State for Foreign and Commonwealth Affairs and Others intervening)

2019 ◽  
Vol 180 ◽  
pp. 575-677
Keyword(s):  
Human Rights ◽  
International Law ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Customary International Law ◽  
State Immunity ◽  
Starting Point ◽  
Charter Of Fundamental Rights ◽  
Right Of Access

State immunity — Jurisdictional immunity — Embassy employment disputes — Domestic staff — Claims for infringement of employment rights — Whether claims barred by State immunity — State Immunity Act 1978 (“SIA”), Section 1 — Exceptions to immunity — Limitations to exceptions — Section 16(1)(a) of SIA — Section 4(2)(b) of SIA — Scope of immunity — Absolute immunity — Restrictive immunity — Whether starting point absolute or restrictive immunity — Distinction between jure gestionis and jure imperii — Customary international law — Whether rule of customary international law justifying Sections 4(2)(b) and 16(1)(a) of SIA — Whether United Kingdom having jurisdiction over respondent States — Whether Article 6 of European Convention on Human Rights, 1950 and Article 47 of Charter of Fundamental Rights of the European Union engagedDiplomatic relations — Immunity from jurisdiction — Embassy employment disputes — Domestic staff employed locally — Whether members of mission — Vienna Convention on Diplomatic Relations, 1961, Article 1 — Whether Section 16(1)(a) of SIA applicable to claimants — Whether employment of domestic staff of diplomatic mission an act jure gestionis — Whether State entitled to State immunity in proceedings against employer embassiesRelationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950, Articles 6 and 14 — Charter of Fundamental Rights of the European Union, Article 47 — Incorporation into English law — Sections 4(2)(b) and 16(1)(a) of SIA — Whether compatible — Whether Article 6 of European Convention engaged by claim to State immunity — Jurisprudence of European Court of Human Rights — Customary international law — Scope of State immunity — Whether starting point absolute or restrictive immunity — International Law Commission’s Draft Article 11 — United Nations Convention on Jurisdictional Immunities of States and their Property, 2004, Article 11 — Relevance — Whether Sections 4(2)(b) and 16(1)(a) of SIA having any basis in customary international law — Whether employer States entitled to immunity as regards claimants’ claims — Whether Sections 4(2)(b) and 16(1)(a) of SIA compatible with Article 6 of European Convention and Article 47 of EU CharterHuman rights — Right of access to court — State immunity — European Convention on Human Rights, 1950 — State Immunity 576Act 1978 — Claimants bringing proceedings against foreign States in relation to employment at embassy — Whether defendant States immune — Whether provisions of SIA barring claimants’ access to court — Whether recognition of immunity involving violation of right of access to courts — Whether infringement of Article 6 of European Convention and Article 47 of EU CharterHuman rights — Prohibition of discrimination — State immunity — European Convention on Human Rights, 1950 — Whether Section 4(2)(b) of State Immunity Act 1978 discriminating on grounds of nationality — Whether infringing Article 14 taken together with Article 6 of European Convention — The law of England

scholarly journals O direito de acesso à justiça efetiva e em tempo razoável e o pacto de San José da Costa Rica na proteção do direito à saúde

2020 ◽  
Vol 24 (2) ◽  
pp. 81-100
Author(s):  
Juliane Caravieri Martins ◽  
◽  
Igor Vinícius de Lima Afonso ◽  
Keyword(s):  
Human Rights ◽  
Social Justice ◽  
Costa Rica ◽  
Right To Health ◽  
Access To Justice ◽  
San Jose ◽  
International Treaty ◽  
The Right ◽  
Judicial Protection ◽  
Right Of Access

This research examines the right of access to justice – fair, effective and timely judicial protection – from the perspective of the American Convention on Human Rights, also known as the Pact of San José of Costa Rica, and Brazilian constitutional norms, verifying wether they protected the right to health in order to realize social justice. Furthermore, this study questiones whether this Pact contributed to the protection of the right to health for Brazilians. In other words, this paper investigates if this international treaty contributed to the promotion of the right to health in Brazil by allowing citizens, through the phenomenon of judicialization of public policies, access to fairer and more effective judicial protection.

scholarly journals A Story of ‘Trials and Errors’ That Might Have No Happy End

2021 ◽  
pp. 119-142
Author(s):  
Jörg Luther†
Keyword(s):  
World War Ii ◽  
Cultural Context ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
International Court Of Justice ◽  
State Immunity ◽  
International Court ◽  
The Icj ◽  
Forced Labour ◽  
To Come

AbstractThe International Court of Justice (ICJ) and Italian Constitutional Court (ItCC) have created a deadlock between two diverging res iudicatae on state immunities and judicial remedies as well as a tension between two republics that do not share the same constitutional and international identities. In order to avoid a further spiralling of decisions, judges tried to promote the negotiation of ‘a happy outcome’ for a category of victims of war crimes that risk dying without being entitled to any compensation. This chapter analyses the general cultural context of ‘academic diplomacy’. Both state sovereignty and human solidarity could be maintained through a voluntary compensation for moral damages to the victims of massacres, deportation, and forced labour during World War II. The moral-responsibility approach suggested by the ICJ could be stronger than the legal-liability threat backed by the ItCC. A belated common solidarity funded by both German and Italian citizens and employers could be the best way out, but considering that many of the now elderly victims are approaching the end of their lifespans, it might be cynically too late. This could, paradoxically, help to remind the world of the injustices they suffered. Yet, on grounds of this tragic end, state immunity and fundamental rights might further be delegitimized in possible wars to come.

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