The Transformation of Constitutional Law through the European Convention on Human Rights

2008 ◽  
Vol 41 (3) ◽  
pp. 489-499
Author(s):  
Jochen A. Frowein
Keyword(s):  
Human Rights ◽  
Soviet Union ◽  
National Socialism ◽  
European Countries ◽  
European Convention ◽  
Rule Of Reason ◽  
The Soviet Union ◽  
European Court ◽  
Communist Ideology ◽  
Occupied Territories

Only five years after the end of the Second World War terminating the complete disregard for human rights in one of the important European countries and in the occupied territories, the governments of European countries agreed on a European Bill of Rights and took the first steps toward collective enforcement of certain rights of the Universal Declaration, adopted by the General Assembly of the United Nations in 1948. Evidently the Convention was a response to the totalitarian ideologies prevailing in national socialism but also to the communist ideology and practice governing the Soviet Union and the European countries behind the iron wall. Was the Convention intended to be more than a response and clarification of the fundamental principles which were well recognized in the constitutional structure of the free European states? If this is the case it should have had an impact on the legal system of member states.How far that impact would go was certainly not foreseen in 1950 or 1953 when the Convention came into force. By hindsight we may say that the establishment of the European Commission of Human Rights and the European Court of Human Rights as judicial organs to enforce the Convention had something that is called “List der Vernunft” in German, a certain rule of reason, not fully understood by the drafters.

Challenging the Unconditional: Partial Compliance with ECtHR Judgments in the South Caucasus States

2019 ◽  
Vol 52 (2) ◽  
pp. 169-195
Author(s):  
Ramute Remezaite
Keyword(s):  
Human Rights ◽  
Soviet Union ◽  
European Convention ◽  
The South ◽  
South Caucasus ◽  
Emerging Democracies ◽  
The Soviet Union ◽  
Partial Compliance ◽  
Selective Approach ◽  
European Court

The European human rights system has long been seen as one of the greatest European achievements, with its European Court of Human Rights (ECtHR) as the world's leading human rights court. Current turbulent times, however, pose serious challenges to the European system, which is increasingly being contested by the deepening ‘implementation crisis’. The absolute obligation of member states of the Council of Europe (CoE) to abide by ECtHR judgments under Article 46 of the European Convention on Human Rights has been increasingly compromised by the selective approach of states, often resulting in minimal, dilatory, lengthy or even contested compliance with ECtHR judgments. As the implementation backlog has grown largely after the accession to the CoE of the newly emerged states, as aspiring democracies, in the late 1990s and early 2000s following the collapse of the Soviet Union, this article analyses the compliance behaviour of these states by looking at the South Caucasus states: Armenia, Azerbaijan and Georgia. The research findings suggest that partial compliance is a very likely form of compliance in the South Caucasus states as democratising states, and that some of the factors that explain such behaviour discussed in the article may be distinctive of states that joined the CoE as emerging democracies after the collapse of the Soviet Union. These states continue to display various vulnerabilities in the areas of human rights, the rule of law and democracy. This, in turn, has serious implications for the whole European human rights system and its ability to ensure that states’ commitments to the CoE are duly respected in the longer term.

scholarly journals Georgia v. Russia (II)

2021 ◽  
Vol 115 (2) ◽  
pp. 288-294
Author(s):  
Kanstantsin Dzehtsiarou
Keyword(s):  
Human Rights ◽  
Soviet Union ◽  
Private Property ◽  
European Convention ◽  
Right To Life ◽  
Right To Education ◽  
South Ossetia ◽  
Freedom Of Movement ◽  
The Soviet Union ◽  
European Court

On January 21, 2021, the European Court of Human Rights (ECtHR or Court) issued its judgment in the interstate case of Georgia v. Russia (II). Georgia complained that Russia committed systemic human rights violations in the course of the 2008 war in South Ossetia and Abkhazia. Both of these regions are de jure parts of Georgia, but they have not been effectively governed by central Georgian authorities since the collapse of the Soviet Union in 1991. During the night of August 7–8, 2008, Georgian artillery attacked Tskhinvali (the administrative capital of South Ossetia). Russian forces entered South Ossetia and Abkhazia the next day. Russian and Georgian troops engaged in hostilities for five days, before agreeing a ceasefire on August 12, 2008. Since then, a significant military contingent of Russian troops has remained in South Ossetia and Abkhazia. The Georgian authorities complained of systemic violations of European Convention on Human Rights (ECHR) Articles 2 (right to life), 3 (prohibition of torture), 5 (right to liberty), and 8 (right to privacy), ECHR Protocol 1 Articles 1 (right to private property) and 2 (right to education), and ECHR Protocol 4 Article 2 (Freedom of movement).

The Status of International Treaties in the Legal System of Azerbaijan

2007 ◽  
Vol 32 (2) ◽  
pp. 233-256
Author(s):  
Cavid Abdullahzade
Keyword(s):  
Human Rights ◽  
Soviet Union ◽  
International Law ◽  
Legal System ◽  
European Convention ◽  
International Treaties ◽  
Independent State ◽  
The Soviet Union ◽  
The Status ◽  
Protection Of Human Rights

AbstractAs part of the disintegration of the Soviet Union in 1991, the Azerbaijan Republic ended its protracted existence as one of the fifteen members of the Soviet Union and became an independent state. As a result, on 30 August 1991, she became a full subject of international law. Currently, Azerbaijan is a party to a number of international treaties, virtually all major human rights treaties registered with the UN Secretary-General, the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as a number of related Council of Europe human rights agreements.A tendency towards internationalization and a general 'opening' to international law can also be seen in the Azeri Constitution, which was adopted by public referendum on 12 November 1995. Like many other former Soviet Republics, Azerbaijan, in its 1995 Constitution, has rejected the traditional Soviet dualist approach of the implementation of international law in the domestic legal system and has established a monist system within the context of a relationship between national and international law. This article discusses these changes in the Azeri attitude towards international law, in particular the status of international treaties, with special reference to those problems stemming from the implementation of international treaties in the domestic legal system of Azerbaijan.

The Admissibility of Confessions and Real Evidence Obtained in Violation of Human Rights in Criminal Trials in European Countries: Analysing the Jurisprudence of the European Court of Human Rights

2019 ◽  
Vol 9 (3) ◽  
pp. 335-355
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
The State ◽  
European Countries ◽  
European Convention ◽  
Human Rights Violations ◽  
Criminal Trials ◽  
European Court ◽  
Domestic Courts ◽  
The Right

The right to a fair trial is guaranteed under Article 6 of the European Convention on Human Rights. In an effort to protect this right, the European Court of Human Rights has, inter alia, set criteria to determine whether or not the admission of a confession in domestic courts violated the right to a fair trial. This jurisprudence also shows that the Court has established two broad guidelines that govern the admissibility of confessions obtained through human rights violations. The first guideline is that confessions obtained in violation of absolute rights and in particular in violation of Article 3 of the European Convention on Human Rights must be excluded, because their admission will always render the trial unfair. The second guideline is that a confession obtained in violation of a non-absolute right may be admitted without violating the right to a fair trial if the State had a compelling reason or reasons to restrict the right in question. The Court has also dealt with the issue of the admissibility of real evidence obtained through human rights violations. The purpose of this article is to highlight the Court’s jurisprudence.

Divergent Trends in Legal Recognition of Religious Entities in Europe: The Cases of Slovenia and Hungary

2015 ◽  
Vol 8 (2) ◽  
pp. 286-304
Author(s):  
Miran Lavrič ◽  
Sergej Flere
Keyword(s):  
Human Rights ◽  
Religious Pluralism ◽  
The Other ◽  
European Countries ◽  
European Convention ◽  
The Political ◽  
Council Of Europe ◽  
Legal Recognition ◽  
Political Situation ◽  
European Court

AbstractReligious dynamics in Europe, especially regarding religious pluralism, are largely affected by the characteristics of legal recognition of religious entities in individual countries. The implementation of the European Convention of Human Rights by the European Court of Human Rights clearly points to democratic pluralism as the essential principle in treating religious entities by the state. On the other hand, the situation in European countries is very complex and certain tendencies opposite to the European Convention of Human Rights directions, particularly in terms of privileging of traditional entities, are still deeply entrenched. Recent changes in Slovenia, where two essentially parody religions have been registered, and in Hungary, where registration and recognition of previously registered churches have been annulled, are considered. It is argued that the implementation of the liberal course set by the Council of Europe is (still) largely dependent on the political situation in individual countries.

scholarly journals Legal nature and place of judicial precedent in the system of sources of law of Ukraine

2021 ◽  
pp. 26-31
Author(s):  
I.S. Ivanyura ◽  
D.V Shevchenko ◽  
A.S. Sivets
Keyword(s):  
Human Rights ◽  
Soviet Union ◽  
Rule Of Law ◽  
General Rule ◽  
Constitutional Court ◽  
Court Decisions ◽  
Negative Consequences ◽  
The Soviet Union ◽  
European Court ◽  
Legal Nature

This article is devoted to the analysis of the essence of judicial precedent as a source of law in Ukraine, its legal nature and the definition of the place among the sources of national law. The issue of judicial precedent, its role has worried many scholars of the Soviet Union, and now it is the focus of many scholars and is central to the study of jurisprudence. Given the determination of the place of precedent among the sources of law, a general analysis of the system of sources of law in Ukraine is conducted. During the analysis the structure of judicial precedent is considered on the example of the decision of the Constitutional Court of Ukraine, several alternative definitions of the term "judicial precedent" are given. Some scholars suggest that "judicial precedent" is a decision based on a general rule of law created by a court that courts of the same or lower instance must comply with, and that their decisions in future cases should be based on this rule of law. The article establishes the role of judicial precedent in the legal system of Ukraine, emphasizes its importance in that it significantly increases the motivation of court decisions. Attention is also paid to the decision of the European Court of Human Rights - a typical example of judicial precedent - as a mandatory source of law in Ukraine. Emphasis is placed on the positive and negative consequences of the official recognition of judicial precedent as a source of law in Ukraine. Considerable attention is also paid to the decisions of the Constitutional Court of Ukraine and the legal positions of the Supreme Court. The authors emphasize the recommendatory nature, in addition to the precedents of the European Court of Human Rights, judicial precedent as a source of law. This is confirmed by the thesis that the rule of law can be reflected in laws and regulations, as judicial precedent is not officially recognized as a source of law in Ukraine, it is believed that court decisions do not create rules of law. The authors emphasize the need for recognition at the legislative level of judicial precedent as a source of law.

The Arab Organization for Human Rights

2008 ◽  
Vol 1 (4) ◽  
pp. 621-630
Author(s):  
Mohsen Awad
Keyword(s):  
Human Rights ◽  
Soviet Union ◽  
Arab World ◽  
Reference Points ◽  
The West ◽  
Arab Region ◽  
The Soviet Union ◽  
Communist Ideology ◽  
The Many ◽  
Degrees Of Severity

The Arab Organization for Human Rights was founded in 1983, at a time when the legal, political and cultural environment in the Arab world was not at all amenable to human rights. On the legal level and when present, societies' laws ranged between banning outright and imposing restrictions, and the very concept of human rights was deeply misunderstood. This was due to the many relevant interpretations and reference points and to its use by the West to contain communist ideology and apply pressure on the Soviet Union. In the meantime, all across the Arab region, public freedoms were experiencing crises of varying degrees of severity. It is in this legally restricted, culturally dubious and politically stifled environment that efforts to establish the Organization first saw the light of day in what amounted to an effort to swim against the current.

Sowieckie ludobójstwo i prawo międzynarodowe. Litewskie zmagania ze zbrodniami ZSRS w świetle orzeczenia Europejskiego Trybunału Praw Człowieka w sprawie Drelingas

2021 ◽  
Vol 19 (2) ◽  
pp. 237-258
Author(s):  
Tomasz Lachowski
Keyword(s):  
Human Rights ◽  
Soviet Union ◽  
International Law ◽  
Russian Federation ◽  
Soviet Occupation ◽  
The Soviet Union ◽  
European Court ◽  
The Russian Federation ◽  
Resistance Movement

The aim of the paper is to analyze the endeavors undertaken by the authorities of independent Lithuania to deal with the crimes committed by the Soviet Union against Lithuanian society, in particular against representatives of the anti-Soviet resistance movement, by using the notion of crime of genocide rooted in international law. The judgment of the European Court of Human Rights in the case of Drelingas v. Lithuania of 12 March 2019, which approved the legality of the qualification of “ethno-national-political” genocide of “forest brethren” committed by the Soviet occupation authorities, was one of the key elements confirming the Lithuanian policy in this regard. This ruling reopens the discussion on the possibility of trying the crimes of the Soviet Union, at the same time raising certain legal and political doubts – as generally expressed by the Russian Federation.

The Katyń Massacres before the European Court of Human Rights

2015 ◽  
Vol 29 (4) ◽  
pp. 784-810
Author(s):  
Ireneusz C. Kamiński
Keyword(s):  
Human Rights ◽  
Soviet Union ◽  
Prisoners Of War ◽  
Personal Account ◽  
The Soviet Union ◽  
European Court ◽  
History Of ◽  
Russian Military ◽  
Grand Chamber ◽  
Close Relatives

The Polish case of Janowiec and Others v. Russia was initiated by a group of close relatives of victims of the 1940 Katyń Massacres. Only in 1990 did the Soviet Union recognize that it had perpetrated the massacres. The applicants in the Janowiec case alleged that the Russian investigation into the massacres, which commenced in 1990 as transparent proceedings but was terminated in 2004 in secrecy, cannot be considered effective under the Convention. Furthermore, inasmuch as the Russian military prosecutors and courts held that the Polish prisoners-of-war “had disappeared” in the spring of 1940 or—if “hypothetically” killed—there might have existed just cause for such an execution, the applicants complained that such statements denied established historical facts and were tantamount to the denigrating and inhuman treatment prohibited by the Convention. The Grand Chamber judgment was not in the applicants’ favor. By a majority, the judges either declined to hear the case on its merits or held that there had been no violation of the Convention, turning—as the four minority judges wrote in their dissent—“the applicants’ long history of justice delayed into a permanent case of justice denied.” This article is a personal account of the principal lawyer acting on behalf of the applicants in the Janowiec case.

A Sacred Space Is Never Empty

2018 ◽  
Author(s):  
Victoria Smolkin
Keyword(s):  
Soviet Union ◽  
Sacred Space ◽  
Russian Revolution ◽  
Mikhail Gorbachev ◽  
Soviet Leadership ◽  
Sacred Spaces ◽  
The Soviet Union ◽  
Communist Ideology ◽  
History Of ◽  
Soviet Experiment

When the Bolsheviks set out to build a new world in the wake of the Russian Revolution, they expected religion to die off. Soviet power used a variety of tools—from education to propaganda to terror—to turn its vision of a Communist world without religion into reality. Yet even with its monopoly on ideology and power, the Soviet Communist Party never succeeded in overcoming religion and creating an atheist society. This book presents the first history of Soviet atheism from the 1917 revolution to the dissolution of the Soviet Union in 1991. The book argues that to understand the Soviet experiment, we must make sense of Soviet atheism. It shows how atheism was reimagined as an alternative cosmology with its own set of positive beliefs, practices, and spiritual commitments. Through its engagements with religion, the Soviet leadership realized that removing religion from the “sacred spaces” of Soviet life was not enough. Then, in the final years of the Soviet experiment, Mikhail Gorbachev—in a stunning and unexpected reversal—abandoned atheism and reintroduced religion into Soviet public life. The book explores the meaning of atheism for religious life, for Communist ideology, and for Soviet politics.

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