Access to Court v State Immunity

2003 ◽  
Vol 52 (2) ◽  
pp. 297-332 ◽  
Author(s):  
Emmanuel Voyiakis
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
State Immunity ◽  
European Court ◽  
The Law ◽  
The Right

This comment discusses three recent judgments of the European Court of Human Rights in the cases of McElhinney v Ireland, Al-Adsani v UK, and Fogarty v UK. All three applications concerned the dismissal by the courts of the respondent States of claims against a third State on the ground of that State's immunity from suit. They thus raised important questions about the relation the European Convention on Human Rights (the Convention)—especially the right to a fair trial and access to court enshrined in Arcticle 6(1)—and the law of State immunity.

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.

Bulgarian Military Courts and the Right to a Fair Trial

De Jure ◽  
2020 ◽  
Vol 11 (2) ◽  
Author(s):  
Ilmira Ilieva ◽  
◽  
◽  
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
European Court ◽  
The Right

This article examines the organization and functioning of Bulgarian military courts to determine to what extent they are compatible with fair trial standards. The guarantees and institutional requirements for providing the right to a fair trial are analyzed in the light of the European Convention on Human Rights and the practice of the European Court of Human Rights. This research is focused on the issue whether Bulgarian military courts could provide a fair trial, held by an independent and impartial court, mainly with regard to civil citizens. For the purpose of the research is scrutinized the ECHR Judgment from 28.11.2019 on the case Mustafa vs. Bulgaria.

The European Court of Human Rights: Sabeh El Leil v. France

2012 ◽  
Vol 51 (1) ◽  
pp. 1-16
Author(s):  
Gilles Cuniberti
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Sovereign Immunity ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right ◽  
Wrongful Dismissal

In Sabeh el Leil v. France, the European Court of Human Rights (‘‘ECtHR’’ or ‘‘the Court’’) ruled for the second time that a contracting state had violated the right to a fair trial afforded by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘‘Convention’’) by denying access to its courts to an embassy employee suing for wrongful dismissal on the grounds that the employer enjoyed sovereign immunity. The ECtHR had first ruled so a year earlier in Cudak v. Lithuania, where the plaintiff was also an embassy employee.

scholarly journals НЕКИ АСПЕКТИ ПРАВА НА СУДСКУ ЗАШТИТУ ЛИЦА СА МЕНТАЛНИМ СМЕТЊАМА У ПОСТУПКУ ЛИШЕЊА ПОСЛОВНЕ СПОСОБНОСТИ - ПРАКСА ЕВРОПСКОГ СУДА ЗА ЉУДСКА ПРАВА

TEME ◽  
2019 ◽  
pp. 581
Author(s):  
Dušica Palačković ◽  
Sanda Ćorac
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Legal Capacity ◽  
Mental Disabilities ◽  
Persons With Disabilities ◽  
European Court ◽  
Key Concepts ◽  
Protection Of Human Rights ◽  
The Right

The paper analyzes certain important aspects of the procedural position of persons with mental disabilities in the procedures for deprivation of legal capacity. Regardless of the normative framework, both international and national, which largely protects the rights of this sensitive group of people, a significant number of cases before the European Court of Human Rights and decisions in which Contracting States are declared responsible indicate that there is a problem of their procedural position that is principally conditioned by applying (or not applying) the procedural safeguards provided by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, or the right to a fair trial. Although this right is guaranteed for all civil and criminal procedures and for all persons, the special features of persons with mental disabilities also determine the particularities in the application of the right to a fair trial in the court procedures in which these persons are involved. Therefore, we could talk about formulated specific standards that essentially elaborate one of the key concepts of the UN Convention on the Rights of Persons with Disabilities - "reasonable adaptation", as well as a direct link to the need for a specific application of the already mentioned Article 6 of the European Convention. The standards that follow from the application of Article 6 are numerous and the analysis of all from the aspect of protecting the rights of persons with mental disabilities is not possible in the paper of this volume, and therefore, special attention was given to the right of these persons to initiate and conduct the procedures for deprivation of legal capacity, personal participation and representation in that procedures.

ANONIMNI SVEDOCI I ZAŠTITA LjUDSKIH PRAVA

2021 ◽  
pp. 277-296
Author(s):  
Veljko Turanjanin ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
Step Test ◽  
European Convention ◽  
Criminal Proceedings ◽  
National Legislation ◽  
European Court ◽  
The Right ◽  
Insufficient Knowledge

Тhe author deals with the problem of anonymous witnesses in the context of the right to a fair trial in the jurisprudence of the European Court of Human Rights. One of the problems in the application of Article 6 of the European Convention on Human Rights is related to the testimonies of anonymous witnesses in criminal proceedings. The case law of the European Court of Human Rights has developed certain criteria that must be followed in national legislation, but it is obvious that there is insufficient knowledge regarding this problem, as well as the reluctance to apply the mentioned rules. The standards developed by the ECtHR are very important for national laws and jurisprudence. The author explains the development of a three-step test that needs to be examined when assessing a violation of the right to a fair trial, through an analysis of a multitude of judgments, in order to provide guidance on the application of Article 6 § 3 (d) of the European Convention on Human Rights. After introductory considerations, the author explains who can be a witness under the Convention, since this question is raised independently of national legislation, and then explains the right to examine witnesses, the admissibility of testimonies by anonymous witnesses and the examination of the three-stage test, and gives concluding remarks.

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.

scholarly journals ADMINISTRATION OF JUSTICE DURING THE COVID-19 PANDEMIC AND THE RIGHT TO A FAIR TRIAL

2021 ◽  
Author(s):  
Krešimir Kamber ◽  
Lana Kovačić Markić
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
World Health ◽  
European Convention ◽  
European Court ◽  
Administration Of Justice ◽  
The Right ◽  
The Way

On 11 March 2020 the World Health Organization announced the Covid-19 (coronavirus) to be a pandemic. To combat the pandemic, many countries had to adopt emergency measures and some of these measures have affected the judicial system, especially the functioning of courts. The pandemic has been characterised as far as the judiciary is concerned by complete or partial closure of court buildings for the parties and for the public. It is clear that the functioning of national judicial systems has been severely disrupted. This limited functioning of courts impacted the individuals’ right to a fair trial guaranteed, in particular, under Article 6 of the European Convention on Human Rights. The aim of this article is to examine the manner of the administration of justice during the Covid pandemic and its impact on the due process guarantees. Focus is put on the extent to which different Covid measures, in particular remote access to justice and online hearings have impacted the guarantees of the right to a fair trial and the due process guarantees in general, notably in detention cases. In this connection, the article provides a comparative overview of the functioning of the European legal systems during the pandemic. It also looks into the way in which the two European courts – the European Court of Human Rights and the Court of Justice of the European Union functioned, as well as the way in which the Croatian courts, including the Constitutional Court, organised their work during the pandemic. The article then provides an insight into the issue of online/remote hearings in the case-law of the European Court of Human Rights and in the Croatian Constitutional Court’s case-law. On the basis of this assessment, the article identifies the differences in the use of remote/online hearings between and within jurisdictions. In conclusion, the article points to some critical considerations that should be taken into account when devising the manner in which any Covid pandemic experience with the administration of justice (notably with regard to remote/online hearings) can be taken forward.

scholarly journals Predictive analytics in crime prevention and the European Convention on Human Rights: tackling risks in privacy and fair trial frameworks

2021 ◽  
pp. 225-250
Author(s):  
Donatas Murauskas
Keyword(s):  
Human Rights ◽  
Crime Prevention ◽  
Predictive Analytics ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
Conceptual Issue ◽  
The Right To Privacy ◽  
European Court ◽  
The Right

In this paper, I discuss whether the European Convention on Human Rights provides safeguards to individuals affected by predictive analytics in crime prevention. I start with depicting a conceptual issue that worries legal scholars – the trend of law-enforcement authorities to increase their attention to crime prevention rather than traditional criminal investigations. Then, I dive into the right to privacy case-law of the European Court of Human Rights looking for the Court’s references to the threats of data processing. Lastly, I select concrete cases of the European Court of Human Rights on the right to a fair trial to show that the human rights safeguards are not yet developed to frame predictive analytics in crime prevention.

coercive questioning (that is, where a suspect's silence can be used in evidence against him or her) can be used in matters under s (as amended) of the Official Secrets Act 1911. There are also wide powers under the Companies Act 1985 to require officers and agents of companies to assist inspectors appointed to investigate the company. Refusal to answer questions can be sanctioned as a contempt of court 431) and as a criminal offence 447). A person can also be required to answer questions to him or her by a acceptances of them under the Drug Trafficking Offences Act 1986. The closest English law comes to creating a duty to give one's name and address is the power given to the police under s 25(3) of PACE 1984 (above). Effective abolition of the right silence The Government ignored the recommendations of the Runciman Commission and, in ss 34-37 of the CJPO 1994, effectively abolished the right to silence. 'Abolished' may be too strong a word because everyone still has the right to remain silent in the same circumstances as they did before the 1994 Act; what has changed is the entitlement of a judge or prosecuting counsel to make adverse comment on such a silence. The issue has now been addressed by the European Court of Human Rights (ECtHR). The leading case is Condron v UK [2000] Crim 679. In 2000, two convicted drug dealers won a landmark ruling in Europe that the UK Government's curbs on the right to silence denied them a fair trial. The ECtHR in Strasbourg stated that, where juries are allowed to draw adverse inferences from silence under police questioning, they must be properly directed by the judge. In a key finding, it ruled that the Court of Appeal should look not just at whether a conviction was 'safe', but also at whether a defendant received a fair trial. The ruling will be likely to lead to other appeals. The case, backed by Liberty, the human rights group, was brought by William and Karen Condron, who were convicted of supplying drugs in 1995. The pair, who did not answer police questions, were jailed for four years. The ECtHR said that the jury had not been properly directed. As a result, the couple's right to a fair trial, as guaranteed by Art 6 of the European Convention on Human Rights, was breached. It awarded each defendant £15,000. Silence could not be regarded as 'an absolute right', the court said, and drawing inferences was not itself in breach of the right to a fair trial, but caution was needed. The jury should have been directed that, ' .. .if it was satisfied that the applicants' silence...could not sensibly be attributed to their having no answer, or none that would stand up to cross-examination, it should not draw an adverse inference'. The law report from Times appears below.

2012 ◽  
pp. 415-419
Keyword(s):  
Human Rights ◽  
Drug Trafficking ◽  
Fair Trial ◽  
European Convention ◽  
European Court ◽  
Right To Silence ◽  
The Government ◽  
The Uk ◽  
The Right ◽  
Court Of Appeal
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