THE RECOGNITION OF FOREIGN JUDGMENTS LACKING REASONS IN EUROPE: ACCESS TO JUSTICE, FOREIGN COURT AVOIDANCE, AND EFFICIENCY

2008 ◽  
Vol 57 (1) ◽  
pp. 25-52 ◽  
Author(s):  
Gilles Cuniberti
Keyword(s):  
European Union ◽  
Human Rights ◽  
Access To Justice ◽  
The European Union ◽  
Border Enforcement ◽  
Policy Issues ◽  
Cross Border ◽  
European Court

AbstractThe recognition of foreign judgments lacking reasons raises several policy issues. Reason-giving is perceived by the European Court of Human Rights as critical to ensure an effective access to justice. Yet, foreign judgments often lack reasons because the defendant failed to appear before the foreign court, and it may be right to sanction this strategy of foreign court avoidance. Finally, the European Union has begun to implement its policy of efficiency of cross-border enforcement, which commands states to recognize such judgments irrespective of any other consideration. This article explores whether these conflicting issues can be reconciled.

scholarly journals Castaño avoids a clash between the ECtHR and the CJEU, but erodes Soering. Thinking human rights transnationally

2020 ◽  
pp. 203228442097974
Author(s):  
Sibel Top ◽  
Paul De Hert
Keyword(s):  
European Union ◽  
Human Rights ◽  
Union Member ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Criminal Matters ◽  
European Union Member States

This article examines the changing balance established by the European Court of Human Rights (ECtHR) between human rights filters to extradition and the obligation to cooperate and how this shift of rationale brought the Court closer to the position of the Court of Justice of the European Union (CJEU) in that respect. The article argues that the ECtHR initially adopted a position whereby it prioritised human rights concerns over extraditions, but that it later nuanced that approach by establishing, in some cases, an obligation to cooperate to ensure proper respect of human rights. This refinement of its position brought the ECtHR closer to the approach adopted by the CJEU that traditionally put the obligation to cooperate above human rights concerns. In recent years, however, the CJEU also backtracked to some extent from its uncompromising attitude on the obligation to cooperate, which enabled a convergence of the rationales of the two Courts. Although this alignment of the Courts was necessary to mitigate the conflicting obligations of European Union Member States towards both Courts, this article warns against the danger of making too many human rights concessions to cooperation in criminal matters.

scholarly journals Ferreira, Nuno and Venturi, Denise (2017) Tell me what you see and I’ll tell you if you’re gay: analysing the advocate general’s opinion in case C-473/16, F v Bevándorlási és Állampolgársági Hivatal.

2018 ◽  
Author(s):  
Nuno Ferreira ◽  
Denise Venturi
Keyword(s):  
European Union ◽  
Human Rights ◽  
Public Knowledge ◽  
Right Wing ◽  
The European Union ◽  
European Institutions ◽  
Court Of Justice ◽  
Hungarian Society ◽  
European Court ◽  
Poor Treatment

Hungary has been in the spotlight for all the wrong reasons for quite a while. From legislation targeting ‘foreign-operating universities’ to border walls to keep refugees from entering Hungarian territory, the populist right-wing government of Viktor Orban has been sparking outrage in many sectors of Hungarian society, and the European institutions. The most recent reason for alarm again relates to migration and refugees, an area of widespread criticism of Hungarian authorities. Building on extremely hostile policies towards refugees that have been admonished by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), Hungarian authorities now intend to resort to highly dubious means to assess the applications of individuals claiming asylum on grounds related to their sexual orientation. It was already public knowledge that this category of claimants was subjected to poor treatment by the Hungarian authorities, but recent events suggest that the authorities have reached a new low.

scholarly journals Refl ections on the Principle of Equal Treatment in EU Law and the Jurisprudence of the Court of Justice of the European Union and the European Convention on Human Rights

2020 ◽  
Vol 9 (1) ◽  
pp. 5-23
Author(s):  
Marija Daka
Keyword(s):  
European Union ◽  
Human Rights ◽  
Equal Treatment ◽  
European Convention ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Complex Approach

The paper presents some of the most relevant aspects of European nondiscrimination law established th rough European Union law and the European Convention on Human Rights, looking also at the evolution of the norms and milestones of case-law on equal treatment within the two systems. The paper gives an overview of the non-discrimination concept as interpreted by the Court of Justice of the European Union and by the European Court of Human Rights. We examine the similar elements but also give insight into conceptual differences between the two human rights regimes when dealing with equal treatment. The differences mainly stem from the more complex approach taken by EU law although, based on analysed norms, cases, and provisions, the aspects of equal treatment in EU law are largely consistent with the practice of the ECtHR. Lastly, the paper briefl y places the European non-discrimination law within the multi-layered human rights system, giving some food for thought for the future potential this concept brings.

Fundamental Rights Protection between Strasbourg and Luxembourg

2018 ◽  
Author(s):  
Katalin Ligeti
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
Individual Rights ◽  
Eu Law ◽  
The European Union ◽  
Rights Protection ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
Grand Chamber

Since long before the entry into force of the Charter of Fundamental Rights of the European Union (CFREU), the two highest courts in Europe, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have sought to develop their respective jurisprudence in such a way as to ensure a strong protection of individual rights, whilst avoiding clashes between the decisions taken in Luxembourg and Strasbourg. An important statement in this regard is provided by the Bosphorus judgment, in which the Grand Chamber of the ECtHR recognised the existence of a presumption of equivalent protection of fundamental rights under EU law. The presumption is rebuttable, but expresses the trustful attitude (and a certain degree of deference) of Strasbourg towards the ability of EU law (and of the CJEU) to protect Convention rights.

6. Finding cases

2021 ◽  
pp. 114-136
Author(s):  
Emily Finch ◽  
Stefan Fafinski
Keyword(s):  
European Union ◽  
Human Rights ◽  
The European Union ◽  
Court Of Justice ◽  
European Court

This chapter presents the skills needed to find cases. It first explains the meanings of case citations before moving on to discuss how to locate domestic cases. It then describes how to find decisions of the Court of Justice of the European Union, the General Court, and the European Court of Human Rights.

5. Finding cases

Legal Skills ◽  
2017 ◽  
Author(s):  
Emily Finch ◽  
Stefan Fafinski
Keyword(s):  
European Union ◽  
Human Rights ◽  
The European Union ◽  
Court Of Justice ◽  
European Court

This chapter presents the skills needed to find cases. It first explains the meanings of case citations before moving on to discuss how to locate domestic cases. It then describes how to find decisions of the Court of Justice of the European Union, the General Court, and the European Court of Human Rights.

La spinta verso una legislazione europea comune sul diritto di conoscere le proprie origini genetiche / The push towards common European legislation with respect to the right to know one’s genetic origins

2018 ◽  
Vol 66 (6) ◽  
pp. 747-761
Author(s):  
Gianluca Montanari Vergallo ◽  
Natale Mario Di Luca
Keyword(s):  
European Union ◽  
Human Rights ◽  
Right To Know ◽  
The European Union ◽  
European Legislation ◽  
Anonymous Birth ◽  
European Court ◽  
The Right To Know ◽  
Genetic Origins ◽  
The Right

A venti anni dalla sua approvazione, la Convenzione di Oviedo necessita di un aggiornamento. Infatti, non affronta la questione del diritto dei bambini nati da fecondazione eterologa di conoscere l’identità dei donatori di gameti. La Corte europea dei diritti dell’uomo ha recentemente stabilito che: a) il diritto di conoscere le proprie origini biologiche è tutelato dall’art. 8 della Convenzione dei diritti dell’uomo; b) tale diritto deve essere bilanciato con quello della madre biologica di rimanere anonima (c.d. parto anonimo). Al fine di trovare tale bilanciamento, una possibile soluzione consiste nel richiedere ai giudici di convocare la madre per chiederle se intende revocare l’anonimato. Se la madre ribadisce la propria originaria intenzione di rimanere sconosciuta, il Tribunale non può consentire al figlio di conoscere la sua identità. Gli autori analizzano anche altre due questioni non prese in considerazione dalla Corte europea: a) l’equilibrio tra il diritto di conoscere le proprie origini e quello dei donator di gamete all’anonimato; b) se tale diritto dei bambini nati da fecondazione eterologa vincoli i genitori legali a rivelargli le modalità del concepimento. Tali problemi e l’importanza degli interessi in gioco inducono gli autori a sostenere che la scelta di usare il citato art. 8 come criterio di giudizio non è affatto ottimale. Appare preferibile affrontare queste questioni attraverso un aggiornamento della Convenzione di Oviedo o comunque con modalità tali da arrivare ad una regolamentazione che sia uniforme all’interno dell’Unione europea. ---------- Twenty years since it was opened for signature, the Oviedo Convention needs updating. It does not deal with the issue of the donor-conceived children’s right to know the identity of the gamete donors. The European Court of Human Rights has recently stated that: a) the right to know one’s biological background is protected by article 8 of the Convention on Human Rights; b) such a right must be balanced with the biological mother’s right to anonymity (anonymous birth). In order to find such balancing, a possible solution might be to require judges to summon mothers to ask them whether they would like to reverse their decision to be anonymous. If the mother reaffirms her intention to remain unknown, the court may not allow the child to learn of her identity and contact her. The authors also analyze two other issues not taken into account by the European Court: a) the balancing between the right to know one’s origins and the gamete donors’ right to anonymity; b) whether the donor-conceived children’s right to know would make it mandatory for legal parents to disclose conception procedures. These problems and the importance of the interests at stake induce the authors to argue that the choice to keep using the above mentioned article 8 as yardstick is far from ideal. It appears to be far preferable to deal with these issues while updating the Oviedo Convention or in such a way as to incentivize the enactment of legislation that would be uniform throughout the European Union.

Between Informal Dialogue and Official Criticism

2019 ◽  
Vol 21 (5) ◽  
pp. 409-420
Author(s):  
Anna Podolska
Keyword(s):  
European Union ◽  
Human Rights ◽  
Mutual Recognition ◽  
Case Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings

Abstract There are various forms of jurisdictional dialogue. In addition to drawing from the case law of another court or seeking direct assistance of such another court in passing the judgment, we can notice in practice situations when by issuing a verdict the courts are communicating with each other. The rulings of the Bundesverfassungsgericht, the Court of Justice of the European Union, and the European Court of Human Rights regarding the free movement of judgments in the European Union and protection of fundamental rights are the example of such activities. Each of these bodies was interpreting separately the extent to which the mechanisms of recognising and executing the judgments may interfere with the level of protection of fundamental rights. A common conclusion concerns assigning the priority to protection of fundamental rights, while individual bodies were determining differently the standards of such protection. The analysed judgments can be construed as a communication between these bodies. Although no direct discussion takes place between these courts, this is still a form of interaction which affects the development of the case law and understanding of the boundaries of mutual recognition of judgments and protection of human rights within judicial proceedings.

Ne Bis Interpretatio In Idem?The Two Faces of theNe Bis In IdemPrinciple in the Case Law of the European Court of Justice

2017 ◽  
Vol 18 (1) ◽  
pp. 39-58 ◽  
Author(s):  
Alessandro Rosanò
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
European Court Of Justice ◽  
Antitrust Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Ne Bis In Idem ◽  
Regional Custom

The meaning ofidemin thene bis in idemprinciple is controversial in the case law of the Court of Justice of the European Union. In interpreting the provision of Article 54 of the Convention Implementing the Schengen Agreement, the court has emphasized the necessary requirement in the identity of the material acts while in antitrust law three requirements have been deemed necessary: (1) Identity of the facts, (2) unity of offender, and (3) unity of the legal interest protected. Despite the opinions of some Advocates General, the court has confirmed different interpretations of the same principle, depending on differences of the legal scope in question. A few years ago, however, the European Court of Human Rights proclaimed the criterion based on the identity of the material acts as the most suitable. This might push the Court of Justice of the European Union to correct its position in the antitrust field. Should this happen, this adjustment might serve as grounds to recognize the existence of a regional custom concerning thene bis in idemprinciple.

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