5. Impartiality and independence

2021 ◽  
pp. 170-204
Author(s):  
Timothy Endicott
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Civil Rights ◽  
Public Administration ◽  
Due Process ◽  
European Convention ◽  
The Difference ◽  
Compound Decision ◽  
Judicial Bias

This chapter examines the role of impartiality and independence in public administration. The topics that are discussed include judicial bias, administrative bias, waiver, determining civil rights, compound decision making, and the value of independence, with an explanation of the requirement of an independent tribunal in Art 6 of the European Convention on Human Rights. The chapter also explains the difference between bias (which is unlawful) and a lack of impartiality (which may be lawful), and explains when bias will be presumed. Bias is presented as both a lack of due process and as a flaw in the substance of a decision maker’s reasoning.

5. Impartiality and independence

2018 ◽  
Author(s):  
Timothy Endicott
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Civil Rights ◽  
Public Administration ◽  
Due Process ◽  
European Convention ◽  
The Difference ◽  
Compound Decision ◽  
Judicial Bias

This chapter examines impartiality and independence in public administration. The topics that are discussed include judicial bias, administrative bias, waiver, determining civil rights, compound decision making, and the value of independence, with an explanation of the requirement of an independent tribunal in Art 6 of the European Convention on Human Rights. The chapter also explains the difference between bias (which is unlawful), and a lack of impartiality (which may be lawful), and explains when bias will be presumed. Bias is presented as both a lack of due process, and also as a flaw in the substance of a decision maker’s reasoning.

5. Right to liberty and right to fair trial

2017 ◽  
Author(s):  
Bernadette Rainey
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Due Process ◽  
Fair Trial ◽  
European Convention ◽  
European Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Right ◽  
Article 5

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on the right to liberty and fair trial, which are not qualified rights but can be derogated from in times of war and emergency, and provides an overview of the European Convention on Human Rights’ (ECHR) Articles 5 and 6, the most commonly argued rights before the European Court of Human Rights (ECtHR). Article 5 on the right to liberty and security of person protects individuals from unlawful and arbitrary detention, whereas Article 6 protects the rights to fair trial in both criminal and civil cases (with added protection in criminal cases). The ECtHR has expanded protection of Article 6 through its interpretation of ‘fair’ hearing and ‘civil’ rights and obligations. The chapter examines due process rights as part of UK law, including the Human Rights Act 1998 (HRA).

The ECtHR's Role as a Guardian of Discourse: Safeguarding a Decision-Making Process Based on Well-Established Standards, Practical Rationality, and Facts

2018 ◽  
Vol 31 (2) ◽  
pp. 335-361
Author(s):  
BJÖRNSTJERN BAADE
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Rule Of Law ◽  
Practical Rationality ◽  
European Convention ◽  
Decision Making Process ◽  
The Rule Of Law ◽  
European Court ◽  
Basic Standards

AbstractThis article argues that understanding the role of the European Court of Human Rights (ECtHR or the Court) to be that of a guardian of discourse would respect legitimate disagreement among pluralist democracies, while enabling the Court to safeguard human rights in a meaningful and effective way.From the European Convention on Human Rights (ECHR or the Convention) and the Court's jurisprudence, three basic standards of review can be distilled: First, wherever the Convention's requirements are sufficiently concrete, the Court holds contracting states to well-established standards. Second, when applying broad, abstract and relative Convention rights, the Court safeguards the practical rationality of a democratic decision-making discourse under the rule of law – a substantive review standard that is influenced by procedural factors. Third, the Court also needs to check the facts underlying the case, in order to render its control effective.By setting ‘soft’ precedent in the form of factors that guide future decision-making without entirely prejudging it, and by taking into account second-order reasons concerning its legitimacy to intervene, the Court is acting as a second player in states’ decision-making discourse. Its task is not to replace the institutions originally responsible for taking the decision, but to ensure that they conform to their own role.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

Human Rights Activities as a Function of the Prosecutor’s Office

2020 ◽  
Vol 3 ◽  
pp. 88-93
Author(s):  
K.N. Golikov ◽  
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Russian Federation ◽  
The State ◽  
Main Function ◽  
Federal Law ◽  
The Subject ◽  
The Russian Federation ◽  
The Law

The subject of this article is the problems of the nature, essence and purpose of prosecutorial activity. The purpose of the article is to study and justify the role of the human rights function in prosecutorial activities in the concept of a modern legal state. At the heart of prosecutorial activity is the implementation of the main function of the Prosecutor’s office – its rights and freedoms, their protection. This means that any type (branch) of Prosecutor's supervision is permeated with human rights content in relation to a citizen, society, or the state. This is confirmed by the fact that the Federal law “On the Prosecutor's office of the Russian Federation” establishes an independent type of Prosecutor's supervision-supervision over the observance of human and civil rights and freedoms. It is argued that the legislation enshrines the human rights activities of the Prosecutor's office as its most important function. It is proposed to add this to the Law “On the Prosecutor's office of the Russian Federation”.

The Right to Avoid Procreation and the Regulation of Pregnancy

2020 ◽  
Author(s):  
Janne Rothmar Herrmann
Keyword(s):  
Human Rights ◽  
European Convention ◽  
European Perspective ◽  
Legal Basis ◽  
Moral Obligations ◽  
Men And Women ◽  
European Consensus ◽  
The Family ◽  
The Right

This chapter discusses the right to avoid procreation and the regulation of pregnancy from a European perspective. The legal basis for a right to avoid procreation can be said to fall within the scope of several provisions of the European Convention on Human Rights (ECHR), an instrument that is binding for all European countries. Here, Article 12 of the ECHR gives men and women of marriageable age the right to marry and found a family in accordance with the national laws governing this right. However, Article 12 protects some elements of the right not to procreate, but for couples only. The lack of common European consensus in this area highlights how matters relating to the right to decide on the number and spacing of children touch on aspects that differ from country to country even in what could appear to be a homogenous region. In fact, the cultural, moral, and historical milieus that surround these rights differ considerably with diverse national perceptions of the role of the family, gender equality, religious and moral obligations, and so on.

Strengthening the Protection of Stateless Persons from Arbitrary Detention in Immigration Control Proceedings

2015 ◽  
Vol 17 (2-3) ◽  
pp. 273-286
Author(s):  
Matthew Seet
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Immigration Control ◽  
Article 5 ◽  
Stateless Person

There is a growing movement (globally and in Europe) addressing statelessness, and the July 2014 decision of Kim v Russia illustrates the role of the Strasbourg Court as a guardian of one of the most important fundamental rights of the ‘legally invisible’ in Europe. The court held that Russia’s two-year detention of a stateless person with a view to expulsion violated his right to liberty and security under Article 5(1) of the European Convention of Human Rights. This comment argues that Kim v Russia represents an important step forward by the Strasbourg Court in safeguarding the stateless person’s right to liberty and security of person under echr doctrine, by highlighting and addressing the special vulnerability of stateless persons to prolonged, indefinite and cyclical detention in immigration control proceedings, although the court should have gone further and indicated general measures explicitly recommending for Russia to introduce statelessness determination procedures.

scholarly journals The Guarantees for Accused Persons Under the Article of the European Convention on Human Rights: An Analysis of the Application of the Convention and a Comparison with other Instruments

1996 ◽  
Vol 26 (3) ◽  
pp. 610
Author(s):  
Andrew S Butler
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
International Law ◽  
High Standard ◽  
Case Law ◽  
European Convention ◽  
Criminal Charges ◽  
The Subject

This article is a book review of Stephanos Stavros The Guarantees for Accused Persons under Article 6 of the European Convention on Human Rights: An Analysis of the Application of the Convention and a Comparison with Other Instruments (Martinus Nijhoff, Dordrecht, 1993) 388 pp (including 3 appendices), price (hbk) £87.00. This book is a detailed analysis of the case law of the organs of the European Convention on Human Rights on the interpretation and application of Article 6 of the Convention. That article guarantees fair trial rights in the determination of criminal charges and in the determination of civil rights and obligations. The scope of Dr Stavros' study is the rights of an accused under Article 6. Butler praises Dr Stavros for being thorough in his treatment of both case law and international law, providing a closely argued critique alongside the law presented, and for his general enthusiasm for the subject matter (reflected in the book's readability). Despite its limitations, Butler commends this book's high standard of scholarship overall.

THE ROLE OF THE JUDICIARY IN THE CONSTITUTIONAL AND LEGAL MECHANISM FOR THE PROTECTION OF HUMAN RIGHTS AND FREEDOMS

2018 ◽  
Author(s):  
Mariana Khmyz ◽  
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Legal Aspect ◽  
Legal Protection ◽  
The State ◽  
Time Dynamic ◽  
Protection Of Human Rights ◽  
The Law ◽  
Judicial Protection

The article reveals the role of the judiciary in the context of ensuring the protection of human rights and freedoms in terms of practical approach. It was found that ensuring the protection of human rights and freedoms in Ukraine is regulated by the Constitution of Ukraine, the Law of Ukraine «On the Commissioner for Human Rights of the Verkhovna Rada of Ukraine» and the Law of Ukraine «On Citizens' Appeals». It is established that in Ukraine judicial protection is enshrined in the Constitution of Ukraine, in particular in Article 55, according to which the rights and freedoms of man and citizen in particular are protected by the court. It is proved that the functioning of the constitutional mechanism for the protection of human rights and freedoms can occur only if the state actively participates in ensuring such rights and freedoms. It is determined that an important component of subjective human rights is the right to judicial protection, which should be realized not only in the direct dimension, but also through the activities of state bodies or bodies or organizations authorized by the state. It is established that the concept of «protection» from the standpoint of the legal aspect is interpreted as a legal obligation of the state in the face of bodies, organizations or officials authorized by it, and as the ability of a person to exercise personal subjective right. It was clarified that the concept of «protection of human rights and freedoms» should be interpreted as a set of measures of organizational and legal nature to ensure legal protection or remove obstacles that arise in the context of the exercise of subjective rights and rights to restore such rights, if they were violated with the application of measures on this basis in the form of punishment of the offenders. It is proposed under the mechanism of protection of human and civil rights and freedoms, in particular, to define a holistic, legally enshrined and at the same time dynamic system, which includes subjects, objects, methods and means of protection of human and civil rights and freedoms. to neutralize illegal obstacles, as well as to prevent the emergence of new obstacles. It is proved that the mechanism of protection of human and civil rights and freedoms in particular should consist of institutional and functional systems. It is noted that the prospects for further research in this area are to determine the requirements for the incompatibility of the position of a judge with other activities in a comparative constitutional and legal aspect.

The Common Core of European Administrative Laws and the Pan-European General Principles of Good Administration

2021 ◽  
pp. 21-34
Author(s):  
Ulrich Stelkens
Keyword(s):  
Human Rights ◽  
Public Administration ◽  
Common Core ◽  
Methodological Approach ◽  
Administrative Law ◽  
European Convention ◽  
Council Of Europe ◽  
Institute Of Public Administration ◽  
German Research ◽  
The Common

This chapter examines a research project carried out at the German Research Institute of Public Administration and the German University of Administrative Sciences Speyer. This 'Speyer project' studies the development, content, and effectiveness of the written and unwritten standards of good administration drawn up within the framework of the Council of Europe (CoE), i.e. on the basis of its Statute (SCoE) and the European Convention on Human Rights (ECHR), which is a sort of 'second pillar' of the CoE. These CoE standards are called 'pan-European principles of good administration'. This 'Speyer project' can be understood as a counterpart to the project carried out by Giacinto della Cananea and Mauro Bussani on the Common Core of European Administrative Law (CoCEAL) as it has a similar objective: to ascertain whether, despite many differences between European systems of administrative law, there are some connecting elements, or a 'common core', and, if so, whether such 'connecting elements' can be formulated in legal terms rather than as generic idealities. However, the methodological approach of the 'Speyer project' clearly differs from the 'factual approach' adopted in CoCEAL.

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