22. The Right to Free Elections

2017 ◽  
Author(s):  
Bernadette Rainey ◽  
Elizabeth Wicks ◽  
Andclare Ovey
Keyword(s):  
Human Rights ◽  
Electoral Systems ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
Democratic Legitimacy ◽  
Right To Vote ◽  
The Right

This chapter examines the protection of the right to free elections in the European Convention on Human Rights (ECHR). It discusses the provisions of Article 3 of Protocol 1 and highlights the increasing number of complaints of violations of this Article, which indicates that the Strasbourg Court is giving fresh emphasis to this provision as essential to the foundations of democratic legitimacy of the State. The chapter also discusses case-law on the nature of the legislature, electoral systems, the right to vote, and the right to stand for election.

22. The Right to Free Elections

2020 ◽  
pp. 610-628
Author(s):  
Bernadette Rainey ◽  
Pamela McCormick ◽  
Clare Ovey
Keyword(s):  
Human Rights ◽  
Electoral Systems ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
Democratic Legitimacy ◽  
Right To Vote ◽  
The Right

This chapter examines the protection of the right to free elections in the European Convention on Human Rights (ECHR). It discusses the provisions of Article 3 of Protocol 1 and highlights the increasing number of complaints of violations of this Article, which indicates that the Strasbourg Court is giving fresh emphasis to this provision as essential to the foundations of democratic legitimacy of the State. The chapter also discusses case-law on the nature of the legislature, the requirements of Article 3 in relation to the choice of electoral systems, the right to vote, and the right to stand for election.

scholarly journals Od predmeta Mccann do predmeta F.J.M.

2020 ◽  
Vol 41 (1) ◽  
pp. 113-132
Author(s):  
Gabrijela Mihelčić ◽  
Maša Marochini Zrinski ◽  
Renata Šantek
Keyword(s):  
Human Rights ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Proportionality Test ◽  
The Right ◽  
Analyse Case

The authors discuss and analyse case law of the European Court of Human Rights regarding the right to respect for home under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and with respect the issue of proportionality. In the paper, the proportionality category was viewed as a criterion for securing protection and as a material precondition for deciding whether the State party's interference with the right to respect for home was proportionate. The cases in which the applicant's eviction occurred after national proceedings for the enforcement of mortgages were addressed. In this context, the genesis of the proportionality category was analysed, from the cases where the Court found it necessary to examine the proportionality to the cases where the Court did not consider the proportionality test necessary.

23. Freedom of Movement

2020 ◽  
pp. 629-646
Author(s):  
Bernadette Rainey ◽  
Pamela McCormick ◽  
Clare Ovey
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
Freedom Of Movement ◽  
The Right

This chapter examines the protection of the freedom of movement in the European Convention on Human Rights (ECHR), explains the provisions of Protocols 4 and 7, and discusses the prohibition of expulsion of nationals and the right of entry to the territory of the State of nationality. It describes the complaints of violations of the freedom of movement provisions of Protocols 4 and 7, and analyses the Strasbourg Court’s interpretation of these provisions, considering the reasons given for restrictions of movement. The chapter also considers the case-law on the collective expulsion of asylum seekers and migrants who have sought protection in Europe.

scholarly journals Ensuring the exercise of the right to access to justice as a mandatory attribute of a constitutional state

2021 ◽  
pp. 311-316
Author(s):  
Y. І. Sverba
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
Access To Justice ◽  
Special Role ◽  
The Rule Of Law ◽  
Constitutional State ◽  
The Right

The article analyzes both the positive and negative obligations of the state regarding the right to access to justice. Based on the principle of separation of powers into legislative, executive and judicial, emphasis on the need for real justice in constitutional state, as well as ensuring its accessibility, is made. Some aspects of the European Court of Human Rights case-law in the field of access to justice are considered. It is also hypothesized that the ECtHR case-law ensures the dynamic development of the European Convention on Human Rights provisions. In particular, the article analyses several ECtHR decisions which explicitly state that the Convention is intended to guarantee not theoretical and illusory, but practical and effective rights («Matthews v. The United Kingdom», «Bellet v. France and others»). The decision of the Constitutional Court of Ukraine is studied, which, inter alia, reveals the special role of constitutional and administrative proceedings in ensuring the rule of law. The obligation of the state to ensure equal access to justice is stated, since the purpose of justice is to protect violated, disputed rights, freedoms that belong directly to the person applying to the court for their protection. Therefore, the exercise of the right guaranteed by part two of Article 55 of the Constitution of Ukraine to appeal court decisions, actions or omissions of subjects of power must be ensured in accordance with the stated purpose of justice. At the same time, this right connects to the opportunity of every person to justify before the court conviction in the illegality of interference by the subjects of power in rights and freedoms concerned. The article analyses the decision of the Grand Chamber of the Supreme Court, which reveals the legal nature of ensuring access to justice in criminal, or administrative offenses. It is stated that the attributes of the rule of law are not limited to the justice and access to it, and their autonomous existence is impossible in a society where other democratic institutions do not work. Keywords: the rule of law, justice, access to justice, constitutional state, human rights, legal aid.

Can I Decide Please? The State of Children's Consent in the UK

2008 ◽  
Vol 15 (4) ◽  
pp. 411-420 ◽  
Author(s):  
Anthony Perera
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Democratic Society ◽  
The State ◽  
Self Determination ◽  
European Convention ◽  
The Status ◽  
Adults And Children ◽  
The Uk ◽  
The Right

AbstractThe right to self-determination for those with adequate competence underpins a democratic society. The European Convention on Human Rights does not draw a distinction between adults and children in this respect, and in fact advances the concept of children's rights. However in the UK a combination of statute and case law places some constraints on a child's right to autonomy. Prior to the Gillick principle there was little guidance on managing children under the age of sixteen. Whilst this is much clearer now there are some anomalies, for instance is the right to refuse the same as the right to agree to surgery? The increasing 'rights culture' for children is bringing this issue before the Courts more and more and the status of children continues to evolve in the UK.

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.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

Risk and the European Convention on Human Rights: Towards a New Approach

2009 ◽  
Vol 11 ◽  
pp. 353-375 ◽  
Author(s):  
Christopher Hilson
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Nuclear Radiation ◽  
European Convention ◽  
Access To Justice ◽  
Public Concern ◽  
Initial Attempt ◽  
Liberal Conception ◽  
European Court ◽  
The Right

Abstract The aim of this chapter is to provide an initial attempt at analysis of the place of risk within the case law of the European Court of Human Rights (ECtHR) and, where appropriate, the Commission, focusing on the related issues of public concern and perception of risk and how the ECHR dispute bodies have addressed these. It will argue that, for quite some time, the Court has tended to adopt a particular, liberal conception of risk in which it stresses the right of applicants to be provided with information on risk to enable them to make effective choices. Historically, where public concerns in relation to particular risks are greater than those of scientific experts—nuclear radiation being the prime example in the case law—the Court has adopted a particularly restrictive approach, stressing the need for risk to be ‘imminent’ in order to engage the relevant Convention protections. However, more recently, there have been emerging but as yet still rather undeveloped signs of the Court adopting a more sensitive approach to risk. One possible explanation for this lies in the Court’s growing awareness of and reference to the Aarhus Convention. What we have yet to see—because there has not yet been a recent, post-Aarhus example involving such facts—is a case where no imminent risk is evident. Nevertheless, the chapter concludes that the Court’s old-style approach to public concern in such cases, in which it rode roughshod over rights to judicial review, is out of line with the third, access to justice limb of Aarhus.

Passive Proselytism

2021 ◽  
Vol 9 (2-3) ◽  
pp. 244-269
Author(s):  
Christine Carpenter
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Freedom Of Religion ◽  
Article 9 ◽  
European Court ◽  
The Right

Abstract Article 9 of the European Convention on Human Rights protects the right to freedom of religion and conscience. The language of Article 9(1) has been interpreted by the European Court of Human Rights as including protections for acts of proselytism, when properly committed and respectful of the rights and freedoms of others. This was the view taken in the foundational Article 9 case of the Court, Kokkinakis v. Greece. In the decades since Kokkinakis, however, the view of the Court on proselytism appears to have shifted, in particular in Article 9 cases involving religious garments. This article seeks to determine whether the Court is consistent in its views on proselytism between these religious garment cases and earlier examples of Article 9 case law.

Freedom of Religion in the Workplace

2021 ◽  
pp. 1-21
Author(s):  
Nedim Begović
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
Case Law ◽  
Legal Framework ◽  
The State ◽  
European Convention ◽  
Freedom Of Religion ◽  
European Court

Abstract The article analyses the case law of the European Court of Human Rights on accommodation of Islamic observances in the workplace. The author argues that the Court has not hitherto provided adequate incentives to the states party to the European Convention on Human Rights to accommodate the religious needs of Muslim employees in the workplace. Given this finding, the author proposes that the accommodation of Islam in the workplace should, as a matter of priority, be provided within a national legal framework. In Bosnia and Herzegovina, this could be achieved through an instrument of contracting agreement between the state and the Islamic Community in Bosnia and Herzegovina.

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