Reforming Property Law in Kosovo: A Clash of Legal Orders

2015 ◽  
Vol 23 (4) ◽  
pp. 566-582
Author(s):  
Marco Roccia
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
International Organizations ◽  
Technical Assistance ◽  
Legal Framework ◽  
Property Law ◽  
The European Union ◽  
Strict Adherence ◽  
European Court ◽  
Human Rights Standards

The legal framework regulating property in Kosovo has been defined as ‘A jumble of laws, regulations, administrative instructions, court practices and directives combine to create a complicated and seemingly impenetrable system for determining contests over immovable property ownership in Kosovo. At the highest level, international human rights standards affect property rights…’1 As in other areas of legislation, laws addressing property issues derive from different periods in Kosovo’s history, that is to say the Yugoslav time, the so-called discriminatory period of the 1990s, UNMIK’s rule of the first decade of the 2000s and, finally, independent Kosovo. Laws are scattered through several legal texts, regulate different aspects of property rights, and often refer to institutions that no longer exist. This paper focuses on the specific issues affecting property law in Kosovo, a sector where international organizations and bilateral cooperation are massively intervening. While assessing legal acts in force and data collected on the field, the author argues how, for an effective reformation of the sector, a clear and coordinated strategy will have to be adopted by the two main donors which, in the next few years, will be launching several technical assistance contracts. Comparing European best practices with the proposed intervention suggested by the European Union and USAID will also give the chance to illustrate how a strict adherence to ECHR standards in the field of property, as the Constitution of Kosovo requires, will bring to light problems already seen in other European countries, that is to say a clash between domestic civil legislation on property, on the one hand, and the case-law of the European Court of Human Rights on Article 1 Protocol 1, on the other. The author will also notice that the tendency to adopt a too political approach, typical of international organizations and donors, in an area characterized by legal principles of a more technical nature, will be cause for additional confusion.

Property and Expropriation: Two Concepts Revisited in the Light of the Case Law of the European Court of Human Rights and the European Court of Justice

2019 ◽  
Vol 8 (2) ◽  
pp. 172-191
Author(s):  
Sabrina Praduroux
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Economic Value ◽  
Case Law ◽  
European Court Of Justice ◽  
Property Law ◽  
Court Of Justice ◽  
European Court ◽  
Key Concepts ◽  
Domestic Law

Abstract In the late 1950 s René Savatier foretold that the qualification of economic value itself as property (bien) would have been the ultimate evolution of the theory of property rights. This prediction has come true with regard to the case law of the European Court of Human Rights (ECtHR) and the European Court of Justice (CJEU). This paper investigates the implications of the understanding of property developed by the two European Courts on the concept of expropriation itself as well as for the principles governing expropriation law. Hence, the paper illustrates the role played by both the ECtHR and the CJEU in laying down the parameters of legitimacy for national law, including property law. Within this context, the focus falls on cases in which the Courts characterize the facts as deprivation of property requiring for compensation, even though the relevant property could not be the object of expropriation under the domestic law of the defendant State. My contribution brings new insights into the current transformation of the traditional property categories and suggests the reinterpretation of some key concepts of expropriation law.

scholarly journals The Phenomena of Fragmentation in the Legal Relations between the Council of Europe and the European Union

2020 ◽  
Author(s):  
Viktoriya Kuzma
Keyword(s):  
European Union ◽  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
The European Union ◽  
Council Of Europe ◽  
European Continent ◽  
Court Of Justice ◽  
European Court ◽  
The Law

This article presents the current issues in the law of international organizations and contemporary international law in general. It is pointed out that the division of international law into branches and institutions, in order to ensure the effective legal regulation of new spheres of relations, led to the emergence of autonomous legal regimes, even within one region, namely on the European continent. To date, these include European Union law and Council of Europe law. It is emphasized the features of the established legal relations between the Council of Europe and the European Union at the present stage. It is determined that, along with close cooperation between regional organizations, there is a phenomenon of fragmentation, which is accompanied by the creation of two legal regimes within the same regional subsystem, proliferation of the international legal norms, institutions, spheres and conflicts of jurisdiction between the European Court of Human Rights and the Court of Justice of the European Union. It is revealed that some aspects of fragmentation can be observed from the moment of establishing relations between the Council of Europe and the European Union, up to the modern dynamics of the functioning of the system of law of international organizations, the law of international treaties, law of human rights. Areas and types of fragmentation in relations between international intergovernmental organizations of the European continent are distinguished. One way to overcome the consequences of fragmentation in the field of human rights is highlighted, namely through the accession of the European Union to the Convention on Human Rights and Fundamental Freedoms 1950. Considerable attention has also been paid to defragmentation, which is partly reflected in the participation of the European Union in the Council of Europe’s conventions by the applying «disconnection clause». It is determined that the legal relations established between an international intergovernmental organization of the traditional type and the integration association sui generis, the CoE and the EU, but with the presence of phenomenon of fragmentation in a close strategic partnership, do not diminish their joint contribution into the development of the law of international organizations and contemporary international law in general. Key words: defragmentation; European Union; European Court of Human Rights; Convention on Human Rights and Fundamental Freedoms 1950; conflict of jurisdictions; «disconnection clause»; Council of Europe; Court of Justice of the European Union; fragmentation; sui generis.

Interim Conclusions

2021 ◽  
pp. 80-90
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
Human Rights ◽  
International Organizations ◽  
Legal Framework ◽  
Point Of View ◽  
International Organization ◽  
The Other ◽  
Absolute Point ◽  
Member States ◽  
European Court ◽  
Argumentative Strategy

This chapter summarizes the previous findings and exposes the false dichotomies that led to the proliferation of the different conceptualizations. It shows how the four conceptualizations can be applied to a legal dispute concerning the responsibility of an international organization. In particular, it discusses the Al-Dulimi case before the European Court of Human Rights. The circumstances of the case prompt the adoption of one or the other conceptualization on the basis of the argumentative strategy. The analysis highlights the difficulties in providing a general legal framework to establish the responsibility of international organizations and/or of their member states. The chapter is divided into two subsections, focusing on the admissibility and the merits of the Al-Dulimi case. It concludes that the adoption of an international legal framework applicable to all international organizations is subject to the possibility to rebut limited perspectives and to adopt an ‘absolute point of view’.

scholarly journals Controlling irregular migration: International human rights standards and the Hungarian legal framework

2018 ◽  
Vol 16 (4) ◽  
pp. 432-451 ◽  
Author(s):  
Daniel Gyollai ◽  
Anthony Amatrudo
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
Case Law ◽  
Legal Framework ◽  
Refugee Status ◽  
European Court ◽  
Southern Border ◽  
Wire Fence ◽  
New Policies ◽  
Human Rights Standards

In the summer of 2015 Hungary constructed a 175 km long barbed-wire fence at its southern border with Serbia. New criminal offences and asylum procedures were introduced that limited access to refugee status determination and ignored agreed EU asylum policy, deterring and de facto preventing asylum seekers from entering Hungarian territory. This paper provides an analysis of these new measures, which criminalized asylum seekers, and the subsequent Hungarian policy in relation to the case law of the European Court of Human Rights – arguing that the Hungarian authorities excessively abused their discretion in implementing these new policies of immigration and border control.

scholarly journals Peculiarities of application of the practice of the European Court of Human Rights in the justice in Ukraine

2021 ◽  
pp. 14-17
Author(s):  
Andrii Rybalkin ◽  
Yuliia Nosenko
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Case Law ◽  
Legal Framework ◽  
Reform Process ◽  
Scientific Article ◽  
Judicial Reform ◽  
International Human Rights Law ◽  
European Court ◽  
Human Rights Standards

The scientific article examines the activities of the European Court of Human Rights and identifies the significance of the relevant case law of the European Court for the case law of Ukraine. It is noted, that one of the issues, studied within the topic, is the sources and legal framework, which is especially relevant in the adoption of the Law of Ukraine «On Enforcement of Decisions and Application of the Case Law of the European Court of Human Rights», according to which courts use the Agreement and case law as a legal source in cases. The activity of the European Court of Human Rights, the role and impact on the judicial system of Ukraine are analyzed, the relevant examples are given. It is concluded, that the implementation of international human rights law into Ukrainian law is a complex procedure that requires special doctrinal consideration, as today Ukrainian citizens are among the most active complainants to the European Court of Human Rights, which indicates a fairly high insecurity by national legal mechanisms. In order to increase the credibility of the judiciary, courts should take into account the European experience, decisions and observations of the Court in their work. The Court's case law is said to play an important role in the judicial reform process as it approaches the European legal framework for human rights standards in Europe. The current law cannot fully protect a person or build justice if it is not applied properly. Based on existing ECtHR rulings, judges can accurately understand the rule of law and apply it properly, which will help improve human rights, accurate understanding and implementation of the Agreement on Ukraine. Based on the study, it was concluded, that it is necessary and appropriate to implement the decisions of the European Court of Human Rights, as in this way it is possible to ensure the protection and defense of human and civil rights and freedoms

‘Between a rock and a hard place?’: The European Union’s financial sanctions against suspected terrorists, multilateralism and human rights

2012 ◽  
Vol 47 (4) ◽  
pp. 473-494 ◽  
Author(s):  
Sarah Léonard ◽  
Christian Kaunert
Keyword(s):  
Human Rights ◽  
Negative Impact ◽  
Legal Issues ◽  
European Court Of Justice ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Human Rights Standards ◽  
Hard Place ◽  
The Eu

This article focuses on the financial sanctions adopted by the European Union (EU) against individuals suspected of involvement in terrorist activities. This sanctions regime has been sharply criticised for its negative impact on human rights and has seen several judicial challenges before the European Courts. In contrast with most of the existing literature, which focuses on legal issues or examines the consequences of the EU financial sanctions, this article takes a step back to examine the reasons for which the EU decided to adopt these controversial financial sanctions in the first place. This article argues that it is mainly its commitment to ‘UN-centred effective multilateralism’ that has led the EU to adopt these financial sanctions measures in order to align itself with the UN financial sanctions regime. However, the Kadi landmark ruling of the European Court of Justice (ECJ) has challenged the pre-eminence of multilateralism over other considerations, such as the respect for human rights. As the Court of Justice prepares to hand down its second judgment in this case, the EU is left torn between its commitment to multilateralism and its commitment to human rights, which can be fully reconciled only if the UN sanctions regime meets the EU’s human rights standards.

scholarly journals On The Role of Modern Doctrines on Human Rights (International Legal Examination)

2019 ◽  
Vol 9 (1) ◽  
pp. 5155-5158
Keyword(s):  
Human Rights ◽  
Legal Regulation ◽  
Criminal Court ◽  
Legal Analysis ◽  
The European Union ◽  
European Court ◽  
The Subject ◽  
Rational Consideration ◽  
Human Rights Standards

The modern doctrines on human rights, which are proposed to be considered in the context of their implementation in international legal practice, are the subject of theoretical and legal analysis in the paper. It is noted that human rights have come a long way in their formation, design and subsequent genesis, and they have finally formed by the end of the last century, and it seems that now all the necessary conditions have been created for their philosophical, legal, axiological analysis and relevant rational consideration of human rights. The advantages of international law in the field of human rights are listed; namely, it is noted that international human rights standards are universal in nature and are binding based on which states are obliged to ensure a minimum standard of those rights and freedoms that are enshrined in international acts, There are listed in the paper advantages of international legal regulation regarding human rights and freedoms, such as the supranational, mandatory and imperative nature of international acts; guarantees of protection and the possibility of restoring violated rights and freedoms of citizens; a man-centred approach in resolving disputes and conflicts arising in international practice. The role of international bodies such as the International Criminal Court, the International Tribunal for the Law of the Sea, the Court of the European Union, the European Court of Human Rights, the International Tribunals for Rwanda and the Former Yugoslavia, and the Special Court for Sierra Leone, is emphasized. Particular attention is paid to the principle of presumption of innocence, which has fundamental and quintessential characteristics in the field of human rights.

scholarly journals The Concept of Integration in the Jurisprudence of the European Court of Human Rights

2010 ◽  
Vol 12 (1) ◽  
pp. 23-43 ◽  
Author(s):  
Clíodhna Murphy
Keyword(s):  
Human Rights ◽  
National Level ◽  
Legal Framework ◽  
Family Reunification ◽  
The European Union ◽  
Normative Development ◽  
European Court ◽  
The Right ◽  
Core Issues ◽  
The Eu

Abstract Integration has become a recurring theme of national immigration policies; and there has been a corresponding normative development of the concept to a certain degree in the European Union, both in soft policy and through references to integration in legally binding immigration measures. The difficulty in defining integration is a pervasive problem encountered by lawyers and sociologists attempting to understand the phenomenon. This article argues that the development of the concept of integration by the European Court of Human Rights has an important contribution to make to the debate, with the potential to provide a legal framework within which to situate integration policies at the national and the EU level. It assesses the concept of integration employed by the European Court of Human Rights, analysing the Court’s Article 8 immigration jurisprudence in terms of two core issues: first, the conception of integration employed in the jurisprudence of the European Court of Human Rights; and second, the implications of the development of the concept in terms of impacting on the right to remain in a State Party and family reunification, each a key integration issue. The article concludes that while the jurisprudence relating to what actually constitutes ‘integration’ is very much in its infancy, the express consideration of integration as a factor in the balancing exercise undertaken by the Court in the expulsion cases signifies the start of a normative development of the concept of integration by the European Court of Human Rights. Nevertheless, it remains to be seen whether the increased emphasis of the Court on the integration criterion in the Article 8 expulsion cases influences the Court’s approach to key integration issues such as family reunification and in turn whether this filters down to legislators and policymakers at the national level.

The right to appeal to the European Court of Human Rights

2020 ◽  
Author(s):  
Yuliya Samovich
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Regulation ◽  
The European Union ◽  
Educational Organizations ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Procedure ◽  
The Right ◽  
Judicial Protection

The manual is devoted to making individual complaints to the European Court of human rights: peculiarities of realization of the right to appeal, conditions of admissibility and the judicial procedure of the European Court of Human Rights. The author analyses some “autonomous concepts” used in the court's case law and touches upon the possibility of limiting the right to judicial protection. The article deals with the formation and development of the individual's rights to international judicial protection, as well as the protection of human rights in universal quasi-judicial international bodies and regional judicial institutions of the European Union and the Organization of American States. This publication includes a material containing an analysis of recent changes in the legal regulation of the Institute of individual complaints. The manual is recommended for students of educational organizations of higher education, studying in the areas of bachelor's and master's degree “Jurisprudence”.

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