‘Arrest, Arrest, Arrest’

2021 ◽  
pp. 283-315
Author(s):  
Richard Martin
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Human Rights Law ◽  
High Court ◽  
Legal Standards ◽  
Everyday Work ◽  
The Face ◽  
Court Of Appeal ◽  
Police Practices

The focus of the empirical account of human rights in Part IV is on the suspect’s right to liberty in the context of police custody. In keeping with the style adopted in Part III, the discussion that follows seeks to closely analyse how particular aspects of police practices and decision-making interact with human rights law standards. The aim in this chapter is to explore how the three statutory safeguards established in PACE to protect the suspect’s right to liberty have fared in the face of organizational pressure to detect and ‘clear up’ crime. Using the three due process safeguards established in PACE to form a framework for this chapter’s analysis, the chapter explores how officers apply, dismiss, interpret and reconstruct each of these safeguards in their everyday work. Once again, the richness of this analysis, specifically its appreciation for how law and practice do (or do not) interact, is enhanced by paying close attention to the development of lines of authority in the case law that have, it is argued, watered down the legal standards officers must apply. This analysis of the case law is based on recent judgments from the High Court and Divisional Court of Northern Ireland, as well as from the Court of Appeal in England and Wales.

scholarly journals The Islamic Law of Marriage and Inheritance in Kenya

2021 ◽  
pp. 1-25
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Islamic Law ◽  
Case Law ◽  
Equal Rights ◽  
High Court ◽  
Personal Status ◽  
The Right ◽  
Law Of Succession ◽  
Court Of Appeal ◽  
Islamic Marriage

Abstract Article 24(4) of the Constitution of Kenya qualifies the right to equality “to the extent strictly necessary for the application of” Islamic law “in matters relating to personal status, marriage, divorce and inheritance”. Section 3 of the Marriage Act provides that, although spouses have equal rights during marriage and at its dissolution, “the parties to an Islamic marriage shall only have the rights granted under Islamic law”. The Law of Succession Act states that it is generally not applicable to the estate of a deceased Muslim. In this article, the author examines case law from the Kadhi's Court, the High Court and the Court of Appeal on issues of Muslim marriages and inheritance. These cases illustrate, in some instances, the tensions between Islamic law and human rights.

Limits to Measures of Confiscation of Property Linked to Serious Criminal Offences in the Case Law of the European Court of Human Rights

2021 ◽  
Vol 30 (1) ◽  
pp. 265-281
Author(s):  
Roberto Virzo
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
International Agreements ◽  
European Convention ◽  
Legal Standards ◽  
European Court ◽  
The One ◽  
Criminal Matters ◽  
Principle Of Legality

In the past thirty years, a growing number of international agreements and acts of international institutions has resorted to different kinds of confiscation (“direct confiscation”, “value confiscation”, “enlarged confiscation” or “nonconviction based confiscation”) to contrast and suppress international and transnational crimes. It can be considered that the flexibility – in terms of variety of measures and functions – of confiscation, together with the forced and permanent deprivation of property to which it always leads, significantly affect the favor towards this measure by States and international organisations. The European Court of Human Rights (ECtHR), taking into account the aforementioned proliferation of international acts and agreements concerning the fight to criminal activities, maintains that common “European and even universal legal standards” can be said to exist which encourage the confiscation of property linked to serious criminal offences. Moreover, the Court has gone so far as to maintain that, in accordance with such “universal legal standards”, States Parties to the European Convention of Human Rights must be given “a wide margin of appreciation with regard to what constitutes the appropriate means of applying measures to control the use of property such as the confiscation of all types of proceeds of crime”. However, the implementation of such measures by States authorities must conform with human rights guarantees – inter alia the principle of legality in criminal matters, due process rights and property rights – provided for in customary and conventional international law. This essay seeks to examine the relevant case law of the ECtHR and to focus on the possibility of reconciling, on the one hand, international obligations on the protection of human rights and, on the other hand, international agreements and acts – concerning the fight against criminal activities – that provide for the various types of confiscation measures.

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.

Trans Rights Are Not Just Human Rights: Legal Strategies for Trans Justice

2020 ◽  
Vol 35 (2) ◽  
pp. 293-315 ◽  
Author(s):  
Samuel Singer
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Social Benefits ◽  
Human Rights Law ◽  
Trans People ◽  
Legal Challenges ◽  
Legal Advocacy ◽  
And Gender ◽  
Legal Strategies ◽  
The Many

AbstractHuman rights instruments are but one of many legal advocacy tools used by trans people. Recent legal scholarship emphasizes that human rights laws are not sufficient to address legal challenges facing trans people, particularly intersectional and systemic barriers. This article looks to Canadian trans case law outside of human rights law to reveal the many instances in which trans people’s fight for legal recognition and redress occur outside of the human rights arena. It focuses on trans case law in three areas: family law, the use of name and gender in court, and access to social benefits. Canadian trans jurisprudence illustrates that not only are trans legal strategies outside of human rights plentiful and effective, they are also imperative. An agile and pragmatic approach to trans rights is necessary, particularly when minority rights are under threat, and for trans people on the margins of trans law reforms.

scholarly journals Blasphemy Law as a Structural Violence: A Challenge for Maintaining Sustainable Peace

2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Cekli Setya Pratiwi ◽  
Sidik Sunaryo
Keyword(s):  
Human Rights ◽  
Structural Violence ◽  
International Community ◽  
Peace Studies ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Legal Standards ◽  
Muslim Countries ◽  
Sustainable Peace ◽  
The Right

Abstract Blasphemy law (BL) has become a central issue for the international community in various parts of the world in the last three decades. In almost every case involving the BL, especially in Muslim countries, such as Pakistan, Malaysia, and Indonesia, they are always responded with violence or threats of attack that cause many victims, loss of homes, damage to places of worship, evictions, stigma of being heretical, severe punishments, or extra-judicial killings. When international human rights law (IHLR) and declaration of the right to peace are adopted by the international community, at the same time, the number of violence related to the application of BL continues to increase. This paper aims to examine the ambiguity of the concept of the BL in Pakistan, Indonesia, and Malaysia, and how its lead to the weak of enforcement that creates social injustice and inequality. Then, referring to Galtung’s theory of structural violence and other experts of peace studies, this paper argues that blasphemy law should be included as a form of structural violence. Therefore its challenges these States to reform their BL in which its provisions accommodate the state’s neutrality and content high legal standards. Thus, through guarantee the fully enjoyment of human rights for everyone may support the States to achieve sustainable peace.

scholarly journals Ending Impunity: The Case for War Crimes Trials in Liberia

2005 ◽  
Vol 1 (2) ◽  
pp. 53-80 ◽  
Author(s):  
Alhagi Marong ◽  
Chernor Jalloh
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Charles Taylor ◽  
Criminal Court ◽  
Human Rights Law ◽  
Sierra Leonean ◽  
Post Conflict

AbstractThis article argues that Liberia owes a duty under both international humanitarian and human rights law to investigate and prosecute the heinous crimes, including torture, rape and extra-judicial killings of innocent civilians, committed in that country by the warring parties in the course of fourteen years of brutal conflict. Assuming that Liberia owes a duty to punish the grave crimes committed on its territory, the article then evaluates the options for prosecution, starting with the possible use of Liberian courts. The authors argue that Liberian courts are unable, even if willing, to render credible justice that protects the due process rights of the accused given the collapse of legal institutions and the paucity of financial, human and material resources in post-conflict Liberia. The authors then examine the possibility of using international accountability mechanisms, including the International Criminal Court, an ad hoc international criminal tribunal as well as a hybrid court for Liberia. For various legal and political reasons, the authors conclude that all of these options are not viable. As an alternative, they suggest that because the Special Court for Sierra Leone has already started the accountability process for Liberia with the indictment of Charles Taylor in 2003, and given the close links between the Liberian and Sierra Leonean conflicts, the Special Court would be a more appropriate forum for international prosecutions of those who perpetrated gross humanitarian and human rights law violations in Liberia.

scholarly journals SECURING HUMAN RIGHTS IN THE FACE OF INTERNATIONAL INTEGRATION

2011 ◽  
Vol 60 (1) ◽  
pp. 125-165 ◽  
Author(s):  
Israel de Jesús Butler
Keyword(s):  
Human Rights ◽  
International Law ◽  
Regional Level ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Governmental Organizations ◽  
The Face ◽  
International Obligations ◽  
Increasing Risk

AbstractThe continuous transfer of authority from the national sphere to inter-governmental organizations gives rise to an increasing risk that States may be mandated by their obligations under these organizations to take measures that are inconsistent with their obligations under International Human Rights Law. Drawing on the approaches of various international, regional and national jurisdictions, this article explores two possible models for restructuring International Law that could ensure that human rights obligations remain effective. The ‘international constitutional’ approach would ensure that human rights are enshrined within the ‘constitutional’ instruments of IGOs, preventing incompatible rules from emerging. The ‘parochial’ approach would ensure that human rights as protected at the national or regional level would take precedence over conflicting international obligations.

The End of Protection: The Danish ‘Paradigm Shift’ and the Law of Cessation

2021 ◽  
Vol 90 (1) ◽  
pp. 60-85
Author(s):  
Nikolas Feith Tan
Keyword(s):  
Human Rights ◽  
Paradigm Shift ◽  
Potential Role ◽  
Policy Implications ◽  
Refugee Policy ◽  
Human Rights Law ◽  
Legal Standards ◽  
Temporary Protection ◽  
The Law ◽  
Legislative Changes

Abstract This contribution discusses the recent ‘paradigm shift’ in Danish refugee policy towards temporary protection and return in light of the law of the international legal standards governing when an asylum state can end the protection of refugees. The article provides an overview of the spectrum of cessation standards drawing on the 1951 Refugee Convention, complementary protection under human rights law and the concept of temporary protection, before setting out the legislative changes making up the Danish ‘paradigm shift’. The Danish case reveals a structural gap in the law of cessation as it regards to complementary protection. The lack of a comprehensive complementary protection framework in some jurisdictions leaves the law open to governments wishing to instrumentalise and minimise protection obligations. Finally, the article analyses legal and policy implications of the policy turn, discussing Denmark’s potential role as a forerunner in temporary protection and cessation, gaps in the law of cessation vis-à-vis complementary protection, and calling for increased scholarly focus on the law of cessation.

Framing the Boundaries of European Human Rights Law

Global Jurist ◽  
2013 ◽  
Vol 13 (2-3) ◽  
Author(s):  
Can Öztaş
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Court System ◽  
Human Rights Law ◽  
Human Rights Protection ◽  
Rights Protection

AbstractEuropean human rights protection, ensured by the European Convention and Court of Human Rights, is declared to be universal and inclusive, protecting not only citizens of Europe but also anybody residing within the jurisdiction of the signatory countries. This article challenges this declaration and argues, with the help of some examples from the case law, that European human rights protection is based on the defined concepts of European-ness that exclude the perceived non-European within the Convention and the Court system.

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