Novelty in ECtHR Case Law on Torture, But It Is Not Enough—Reopening Domestic Proceedings to End Impunity

2017 ◽  
Author(s):  
Giuliana Ziccardi Capaldo
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Constitutional Law ◽  
Case Law ◽  
Criminal Proceedings ◽  
Full Effect ◽  
Unitary Approach ◽  
Jus Cogens ◽  
Evolutionary Interpretation

This editorial focuses on the violation of the jus cogens principle of non-impunity for acts of torture as occurred in the Cestaro v. Italy case, where the perpetrators went unpunished due to the statute of limitations. The Italian Supreme Court failed to apply this principle of global constitutional law. Nor did the ECtHR implement effective remedies against impunity. The author proposes reopening time-barred criminal proceedings as a useful tool against impunity to give full effect to ECtHR jurisprudence supporting the generally recognized principle of the non-applicability of statutory limitations to crimes against humanity.She stresses the need to enhance the effectiveness of the supervisory role of the ECtHR in ensuring the observance of jus cogens human rights principles—of which the ECHR “forms part”—through a unitary approach of courts to the fight against impunity based on an evolutionary interpretation of the Convention, which would provide more effective and integrated protection of such rights.

scholarly journals Court Decision Contra Legem or an Application of the Principle of Proportionality in Concreto?

Teisė ◽  
2021 ◽  
Vol 121 ◽  
pp. 27-44
Author(s):  
Asta Dambrauskaitė
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
National Court ◽  
Case Law ◽  
Legal Rule ◽  
Court Decision ◽  
European Convention ◽  
Court Decisions ◽  
Principle Of Proportionality

The article analyses cases of non-application of a national legal rule by cassation court judges hearing civil cases where, based on the analysis of concrete circumstances, the application of such a rule, in the opinion of judges, would lead to an infringement of the principle of proportionality and the European Convention on Human Rights. Decisions of two courts of cassation belonging to the continental law tradition (the Lithuanian Supreme Court and the French Court of Cassation) illustrate such a control of the application of the principle of proportionality in concreto. While national law is subject to an increasing impact of the case law of supranational courts, the legitimacy of such national court decisions is discussed also in the context of the transformations taking place in regard to the role of a judge.

scholarly journals ŽMOGAUS TEISIŲ IR PAGRINDINIŲ LAISVIŲ APSAUGOS KONVENCIJA GALUTINĖS INSTANCIJOS LIETUVOS TEISMŲ PRAKTIKOJE

Teisė ◽  
2013 ◽  
Vol 87 ◽  
pp. 69-85
Author(s):  
K. Bubnytė
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Law ◽  
Case Law ◽  
European Convention ◽  
Qualitative Aspect

Straipsnyje analizuojant Žmogaus teisių ir pagrindinių laisvių apsaugos konvencijos taikymą galutinės instancijos Lietuvos teismų (Lietuvos Aukščiausiojo Teismo ir Lietuvos vyriausiojo administracinio teis­mo) praktikoje, atskleidžiamas Konvencijos internalizavimo kokybinis aspektas. Aptariamos šiam pro­cesui turinčios įtakos normatyvinės ir bihevioristinės prielaidos, išskiriamos galimos Konvencijos taiky­mo formos ir būdai, kartu atskleidžiama Lietuvos teismų vaidmens Konvencijos įgyvendinimo procese nacionalinės ir tarptautinės teisės požiūriu reikšmė. The article deals with a qualitative aspect of the internalization of the European Convention on Human Rights through analysis of the application of the Convention in the case law of the Lithuanian courts of last resort (namely, the Lithuanian Supreme Court and Lithuanian Supreme Administrative Court). The factors – both normative and behaviouristic – influencing the process at issue are discussed, possible forms and modes of the application of the Convention are distinguished, simultaneously, the significance of the role of Lithuanian courts in the process of the implementation of the Convention is disclosed from both perspectives – that of national and international law.

The European Convention on Human Rights and the European Court of Human Rights as Guardians of Fair Criminal Proceedings in Europe

2019 ◽  
pp. 88-114
Author(s):  
Bettina Weisser
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Public Hearing ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
European Court ◽  
The Right ◽  
Procedural Rights

This chapter discusses the role of the European Convention on Human Rights (ECHR) and the European Court of Human Rights (the Court) in safeguarding fair criminal proceedings in Europe. In particular, it analyzes the procedure-related guarantee of a fair trial and its various implications as they are laid down in Article 6 ECHR and shaped by the case law of the Court. The chapter first provides an overview of the general procedural guarantees under Article 6, section 1, focusing on the independence and impartiality of the tribunal, right to a fair hearing (equality of arms, the right to remain silent and the privilege against self-incrimination, entrapment), public hearing, and hearing within a reasonable time. It then considers procedural rights in criminal proceedings under sections 2 and 3 of Article 6, along with the presumption of innocence under section 2 and specifically listed minimum rights in criminal proceedings under section 3.

scholarly journals Towards a New Justificatory Theory of Comparative Constitutional Law

2015 ◽  
Vol 1 (1) ◽  
pp. 90-117
Author(s):  
Santiago Legarre
Keyword(s):  
Human Rights ◽  
Comparative Analysis ◽  
Supreme Court ◽  
Natural Law ◽  
Constitutional Law ◽  
Case Law ◽  
Legal Practice ◽  
The Us ◽  
Us Supreme Court ◽  
Comparative Constitutional Law

This paper tries to explain what comparative constitutional law is and takes the US legal practice as an example. The presence of comparative analysis is considered both in the academic arena and in the case law of the US Supreme Court. The conclusion of this part of the article is that for comparative constitutional law to be valid its role ought to be restricted by several constraints. The article also suggests that the comparative enterprise only makes sense if the universality of human rights is first acknowledged. The paper next delves into such universality and connects it with notions of new classical natural law that are considered essential in order to adequately understand the problem. Finally, it provides an example of the misuse of comparative constitutionalism.

DISPUTE AS TO THE INTERPRETATION OF ARTICLE 540(3) OF THE CODE OF CRIMINAL PROCEDURE ALONG WITH AN APPROVING GLOSS TO THE RESOLUTION OF THE SUPREME COURT OF 26 JUNE 2014, CASE REF. NO. I KZP 14/14

2021 ◽  
Vol 2 (XXI) ◽  
pp. 301-313
Author(s):  
Patrycja Trzeja
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Criminal Procedure ◽  
Case Law ◽  
Legal Issue ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

This gloss aims to assess the position presented by the Supreme Court in its resolution of 26 June 2014 as to whether the need to resume proceedings, as referred to in Article 540 § 3 of the Code of Criminal Procedure, can only relate to proceedings in the case to which the decision of the European Court of Human Rights on the violation of the Convention for the Protection of Human Rights and Fundamental Freedoms relates, or also to other criminal proceedings in which there has been a violation of the provisions of the Convention similar to that found in the decision of this Court issued against Poland. The analysis includes the presentation of doctrinal and case law views, as well as the author’s own reflections. What is important, the considerations end with a polemic with the arguments appearing in the interpretation dispute, and an assessment of the very process of interpretation by the Supreme Court when considering the legal issue in question.

Rola uzasadnienia sądowego w realizacji prawa do rzetelnego procesu sądowoadministracyjnego– standard strasburski

2014 ◽  
pp. 13-31
Author(s):  
Katarzyna Grzelak-Bach
Keyword(s):  
Human Rights ◽  
Legal Reasoning ◽  
Case Law ◽  
Legal Order ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings ◽  
Court Proceedings ◽  
Basic Level

Following a brief introduction of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the author begins by analyzing case law from the European Court of Human Rights regarding the legal reasoning in judicial proceedings. The main premise of this paper is to present a formula for preparing legal reasoning in administrative court proceedings. The author draws attention to the role of judges who, in the process of adjudication, should apply creative interpretation of the rules of law, when they see errors or omissions in legislative provisions, or blatant violations of the European legal order. The conclusion of those deliberations finds, that the process of tailoring the approach to meet Strasbourg’s requirements should, on a basic level, be at the discretion of judges rather than the legislators.

The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Supreme Court ◽  
Human Dignity ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
The Supreme Court ◽  
Additional Burden ◽  
The Impact

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

Diplomatic Protection: Taking Human Rights Extraterritorially

2007 ◽  
Vol 44 ◽  
pp. 299-352
Author(s):  
Noura Karazivan
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
The United Kingdom ◽  
Current State ◽  
Diplomatic Protection ◽  
Human Rights Treaties ◽  
Legitimate Expectations ◽  
Jus Cogens ◽  
To Receive

SummaryThis article argues that states should have a limited obligation — and not only a privilege — to extend diplomatic protection to their nationals when they are facing violations of their most basic human rights abroad. The author addresses the current state of international law regarding diplomatic protection, with a focus on the International Law Commission's failed attempt to impose a duty on states to exercise protection in cases of jus cogens violations. A review of domestic case law, particularly in the United Kingdom, Canada, Germany, and South Africa, shows that while some courts recognize legitimate expectations to receive diplomatic protection, all are reluctant to exercise judicial review of a denial of diplomatic protection. The author nevertheless examines whether adherence to international human rights treaties could entail a positive obligation for states to exercise diplomatic protection in order to protect the human rights of their nationals that are ill-treated abroad.

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