The Legal Right to Security of Person

2019 ◽  
pp. 10-42
Author(s):  
Rhonda Powell
Keyword(s):  
South African ◽  
European Convention ◽  
Bill Of Rights ◽  
Human Right ◽  
Political Dialogue ◽  
Protection Of Human Rights ◽  
The Common ◽  
The Right ◽  
Legal Right

There is no agreed meaning ascribed to the legal right to security of person, even though it is an internationally recognized human right and a term found in legislation and political dialogue around the world. Most jurisdictions have left the courts to interpret the meaning of the right to security of person. In turn, courts have taken remarkably different approaches to determining which interests should be protected by the right to security of person in their jurisdictional context. Chapter 1 analyses the meaning that courts have given to the right as it appears in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Canadian Charter of Rights and Freedoms, and the South African Bill of Rights. It is argued that a deeper theoretical analysis is needed to identify the common core of the right.

The Interests Protected by the Right to Security of Person

2019 ◽  
pp. 103-122
Author(s):  
Rhonda Powell
Keyword(s):  
Human Rights ◽  
South African ◽  
Capabilities Approach ◽  
European Convention ◽  
Political Rights ◽  
Bill Of Rights ◽  
Human Rights Law ◽  
Economic Rights ◽  
Canadian Charter ◽  
The Right

Drawing on the analysis of security in Chapter 3 and the capabilities approach in Chapter 4, Chapter 5 provides examples of the interests that the right to security of person protects. It also considers the extent to which human rights law already recognizes a link between those interests and security of person. Five overlapping examples are discussed in turn: life, the means of life, health, privacy and the home, and autonomy. Illustrations are brought primarily from the European Convention on Human Rights, the Canadian Charter, and the South African Bill of Rights jurisprudence. It is argued that protection against material deprivations that threaten a person’s existence are as much part of the right to personal security as protection against physical assaults. The right to security of person effectively overcomes the problematic distinction between civil and political rights and socio-economic rights because it sits in both categories.

Negative and Positive Security of Person

2019 ◽  
pp. 123-151
Author(s):  
Rhonda Powell
Keyword(s):  
At Risk ◽  
Human Rights ◽  
South African ◽  
Capabilities Approach ◽  
The State ◽  
European Convention ◽  
Bill Of Rights ◽  
Positive Duties ◽  
The Right ◽  
Personal Interests

In Chapter 6 it is argued that the right to security of person correlates to both negative and positive duties. The right to security of person should not only restrain the state from threatening or putting a rights-holder’s personal interests at risk; it also requires that the state take positive measures to protect the rights-holders’ interests and values against threats and risks, whether or not these emanate from the state. Taking the capabilities approach as the ‘theory of personhood’ underlying the right, it would also require duties of facilitation and provision in situations where the capability to function is non-existent. Finally, Chapter 6 also considers the extent to which rights jurisprudence of the European Convention on Human Rights, the Canadian Charter, and the South African Bill of Rights successfully reflect the positive features of the right to security of person.

scholarly journals Ustavno i konvencijsko jemstvo prava svojine

2019 ◽  
Vol 56 (2) ◽  
pp. 443-467
Author(s):  
Hamdija Šarkinović
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Constitutional Court ◽  
Human Right ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right ◽  
And Control

The paper deals with property, which is guaranteed by Article 58 of the Constitution of Montenegro and Article 1 of Protocol No.1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The constitutional-law concept of the right to property in Montenegro is broader than the traditional civil law concept, as it includes all real rights, as the European Court under the notion of property, in addition to the usual, includes all acquired rights of a person. The autonomous concept of property and possessions within the meaning of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms was separately covered, consisting of three rules: principle of peaceful enjoyment of possessions, deprivation of possessions, and control of the use of property. The application of the text of justification of interference with property in the case law of the European Court is explained, which includes the text of legality, the text of a legitimate aim in the general or public interest and the text of proportionality. However, the case law of the ordinary courts in the field of guarantees of property rights, constitutional and convention’s is not harmonized with the case law of the European Court of Human Rights and represents one of the main tasks of the Constitutional Court in the coming period. The Constitutional Court of Montenegro follows the concept of property enshrined in the Constitution and gives the property meaning as the constitutional and convention human right guaranteed by the Constitution, and its inviolability as one of the fundamental values of the constitutional order, although the case law of the Constitutional Court has not fully and always been coherent with the aforementioned principles.

scholarly journals Speed Traps and the Right of Silence

2011 ◽  
Vol 9 (1) ◽  
pp. 165-176 ◽  
Author(s):  
Dennis Kurzon
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Regulatory Regime ◽  
Human Right ◽  
Written Texts ◽  
European Court ◽  
Statutory Requirement ◽  
The Right ◽  
Right Of Silence

In two English cases which reached the European Court of Human Rights in the mid-2000s, it was argued that the statutory requirement on the part of a motorist who has been caught speeding to give the police information concerning the identity of the driver of the car at the time of the offence is a violation of the right of silence by which a person should not be put into a position that s/he incriminates him/herself. The right of silence is one of the conventional interpretations of Article 6 of the European Convention on Human Rights. As well as a study on the right of silence with regard to written texts, this paper also investigates the two cases in terms of icons and indices: a text may be indexical of a basic human right, and then may become an icon of that right. The European Court of Human Rights considers the particular section of the relevant statute as an icon of the "regulatory regime".

Does the Aggravated Sentencing Regime under the Prevention of Organised Crime Act 121 of 1998 Violate Freedom of Association? A Constitutional and Comparative Analysis

2021 ◽  
Vol 2021 (2) ◽  
pp. 288-305
Author(s):  
Delano Cole van der Linde
Keyword(s):  
The United States ◽  
Organised Crime ◽  
Gang Member ◽  
European Convention ◽  
Political Rights ◽  
Freedom Of Association ◽  
Criminal Organisation ◽  
Protection Of Human Rights ◽  
The Republic ◽  
The Right

In terms of section 10(3) of the Prevention of Organised Crime Act 121 of 1998 (“POCA”), a court may impose an aggravated sentence on a criminal offender if the offender was a gang member at the time of the commission of a crime. The court is entitled to apply section 10(3) to the sentencing of any common-law or statutory offence, save for the gang-related offences in Chapter 4 of POCA. As aggravated punishment is attached directly to a person’s status as a gang member, one must question whether such aggravated punishment does not violate the right to freedom of association in section 18 of the Constitution of the Republic of South Africa, 1996. Section 18 is an unqualified right and subject only to the limitations clause under section 36 of the Constitution. The purpose of this contribution is to investigate whether the associational freedom guaranteed by the Constitution may be limited in light of considerations under international law (such as the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights and the European Convention on the Protection of Human Rights and Fundamental Freedoms) as well as foreign law (specifically the United States and Germany). The consensus is, broadly speaking, that persons are nondeserving of associational protection where the conduct connected to such an association is criminal in nature. Increased criminal consequences are justifiable where a person’s unlawful conduct is also connected to their status and activity as a member of a criminal organisation. However, increased criminal consequences based merely on a person’s membership of a criminal organisation, as is the case in terms of section 10(3) of POCA, is considered arbitrary and irrational. The conclusion is that section 10(3) of POCA should be amended so that it applies only to crimes that are related to a convicted person’s gang-related activities.

The Right to Healthcare in the Common European Asylum System

2018 ◽  
Vol 20 (2) ◽  
pp. 135-156
Author(s):  
Marco Inglese
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
European Convention ◽  
Undocumented Migrants ◽  
The European Union ◽  
Common European Asylum System ◽  
The Common ◽  
Interpretative Approach ◽  
The Right

Abstract This article seeks to ascertain the role of healthcare in the Common European Asylum System (CEAS). The article is structured as follows. First, it outlines the international conceptualisation of healthcare in the International Covenant of Economic, Social and Cultural Rights (ICESCR) and the European Social Charter (ESC) before delving into the European Convention on Human Rights (ECHR). Second, focusing on the European Union (EU), it analyses the role of Article 35 of the Charter of Fundamental Rights of the European Union (the Charter) in order to verify its impact on the development of the CEAS. Third, and in conclusion, it will argue that the identification of the role of healthcare in the CEAS should be understood in light of the Charter’s scope of application. This interpretative approach will be beneficial for asylum seekers and undocumented migrants, as well as for the Member States (MSs).

scholarly journals NE BIS IN IDEM PRINCIPLE IN THE CRIMINAL LEGISLATION OF BOSNIA AND HERZEGOVINA AND COURTS’ JURISPRUDENCE

2019 ◽  
Vol 34 (5) ◽  
pp. 1439-1444
Author(s):  
Miodrag N. Simović ◽  
Marina M. Simović ◽  
Vladimir M. Simović
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Offence ◽  
Ne Bis In Idem ◽  
International Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

The paper is dedicated to ne bis in idem principle, which is a fundamental human right safeguarded by Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. This principle is sometimes also referred to as double jeopardy.The principle implies that no one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which s/he has already been finally convicted or acquitted (internal ne bis in idem principle), and that in some other State or before the International Court (ne bis in idem principle in respect of the relations between the states or the State and the International Court) the procedure may not be conducted if the person has already been sentenced or acquitted. The identity of the indictable act (idem), the other component of this principle, is more complex and more difficult to be determined than the first one (ne bis).The objective of this principle is to secure the legal certainty of citizens who must be liberated of uncertainty or fear that they would be tried again for the same criminal offence that has already been decided by a final and binding decision. This principle is specific for the accusative and modern system of criminal procedure but not for the investigative criminal procedure, where the possibility for the bindingly finalised criminal procedure to be repeated on the basis of same evidence and regarding the same criminal issue existed. In its legal nature, a circumstance that the proceedings are pending on the same criminal offence against the same accused, represents a negative procedural presumption and, therefore, an obstacle for the further course of proceedings, i.e. it represents the procedural obstacle which prevents an initiation of new criminal procedure for the same criminal case in which the final and binding condemning or acquitting judgement has been passed (exceptio rei iudicatae).The right not to be liable to be tried or punished again for an offence for which s/he has already been finally convicted or acquitted is provided for, primarily, by the International Documents (Article 14, paragraph 7 of the International Covenant on Civil and Political Rights and Article 4 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms). The International framework has also been given to ne bis in idem principle through three Conventions adopted by the Council of Europe and those are the European Convention on Extradition and Additional Protocols thereto, the European Convention on the Transfer of Proceedings in Criminal Matters, and the European Convention on the International Validity of Criminal Judgments.Ne bis in idem principle is traditionally associated with the right to a fair trial under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Likewise, no derogation from Article 4 of Protocol No. 7 shall be made under Article 15 of the Convention at the time of war or other state of emergency which is threatening the survival of the nation (Article 4, paragraph 3 of Protocol No. 7). Thereby it is categorised as the irrevocable conventional right together with the right to life, prohibition of torture, prohibition of slavery, and the legality principle. Similarly, ne bis in idem principle does not apply in the case of the renewed trials by the International criminal courts where the first trial was conducted in some State, while the principle is applicable in the reversed situation. The International Criminal Tribunal for Former Yugoslavia could have conducted a trial even if a person had already been adjudicated in some State, in the cases provided for by its Statute and in the interest of justice.

scholarly journals SOME COMMENTS ON WATER RIGHTS IN SOUTH AFRICA

2017 ◽  
Vol 8 (1) ◽  
pp. 1
Author(s):  
N Gabru
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Fresh Water ◽  
Human Life ◽  
Bill Of Rights ◽  
The South ◽  
Economic Rights ◽  
Basic Part ◽  
The Right

Human life, as with all animal and plant life on the planet, is dependant upon fresh water. Water is not only needed to grow food, generate power and run industries, but it is also needed as a basic part of human life. Human dependency upon water is evident through history, which illustrates that human settlements have been closely linked to the availability and supply of fresh water. Access to the limited water resources in South Africa has been historically dominated by those with access to land and economic power, as a result of which the majority of South Africans have struggled to secure the right to water. Apartheid era legislation governing water did not discriminate directly on the grounds of race, but the racial imbalance in ownership of land resulted in the disproportionate denial to black people of the right to water. Beyond racial categorisations, the rural and poor urban populations were traditionally especially vulnerable in terms of the access to the right.  The enactment of the Constitution of the Republic of South Africa 1996, brought the South African legal system into a new era, by including a bill of fundamental human rights (Bill of Rights). The Bill of Rights makes provision for limited socio-economic rights. Besides making provision for these human rights, the Constitution also makes provision for the establishment of state institutions supporting constitutional democracy.  The Constitution has been in operation since May 1996. At this stage, it is important to take stock and measure the success of the implementation of these socio-economic rights. This assessment is important in more ways than one, especially in the light of the fact that many lawyers argued strongly against 1/2the inclusion of the second and third generation of human rights in a Bill of Rights. The argument was that these rights are not enforceable in a court of law and that they would create unnecessary expectations of food, shelter, health, water and the like; and that a clear distinction should be made between first generation and other rights, as well as the relationship of these rights to one another. It should be noted that there are many lawyers and non-lawyers who maintained that in order to confront poverty, brought about by the legacy of apartheid, the socio-economic rights should be included in a Bill of Rights. The inclusion of section 27 of the 1996 Constitution has granted each South African the right to have access to sufficient food and water and has resulted in the rare opportunity for South Africa to reform its water laws completely. It has resulted in the enactment of the Water Services Act 108 of 1997 and the National Water Act 36 of 1998.In this paper the difference between first and second generation rights will be discussed. The justiciability of socio-economic rights also warrants an explanation before the constitutional implications related to water are briefly examined. Then the right to water in international and comparative law will be discussed, followed by a consideration of the South African approach to water and finally, a few concluding remarks will be made.

scholarly journals Collective Action Right as a Basic Human Right

2017 ◽  
Vol 6 (s2) ◽  
pp. 9-17
Author(s):  
Pir Ali Kaya ◽  
Ceyhun Güler
Keyword(s):  
Human Rights ◽  
Collective Action ◽  
Resistance Mechanism ◽  
European Convention ◽  
Social Rights ◽  
Human Right ◽  
Political Field ◽  
European Court ◽  
Social Interests ◽  
The Right

Abstract According to The European Social Charter, the European Convention on Human Rights, the ILO Conventions, the decisions of the European Court of Human Rights, the decisions of the European Social Rights Committee and the ILO supervisory bodies, the right to collective action is a democratic right that aims to protect and correct the economic and social interests of workers in the workplace or in another place appropriate for the purpose of action. The above-mentioned institutions accept the right to collective action as a fundamental human right. According to the decisions of the European Court of Human Rights, the right to collective action is regarded as a democratic right, including strike. In particular, the right to collective action is being used as a resistance mechanism against new working relations, which are imposed on working conditions, right to work and the right to organize. However, the tendency of this right to political field, leads to some debate about the legality of the right to collective action. In this context, In the decision of the European Court of Human Rights, the ILO's supervisory bodies and the European Committee on Social Rights, it is emphasized that collective action rights should be a basic human right. In this study, the legal basis of the right to collective action will be discussed in accordance with the decisions and requirements of the European Court of Human Rights and the decisions of the ILO supervisory bodies.

O’Keeffe v. Ireland: overview and analysis

2017 ◽  
Author(s):  
James Gallen
Keyword(s):  
Human Rights ◽  
Sexual Abuse ◽  
Tort Law ◽  
European Convention ◽  
Human Right ◽  
Vicarious Liability ◽  
European Court ◽  
Effective Remedy ◽  
The Right ◽  
The Impact

James Gallen’s chapter reviews the case and the contributions of Adrian Hardiman and Conor O’Mahony to this book. Gallen argues that their discussion reveals the tension between the principle of subsidiarity and the right to effective protection and an effective remedy in the European Convention on Human Rights. The chapter argues that the case of O’Keeffe v Ireland also raises concerns about the European Court of Human Right methodology for the historical application of the Convention and about the interaction of Article 3 positive obligations with vicarious liability in tort. A further section examines the impact of the decision for victims of child sexual abuse and identifies that the decision provides the potential for an alternative remedy to the challenging use of vicarious liability in Irish tort law.

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