Divergence of European Union and Strasbourg Standards on Defence Rights in Criminal Proceedings? Ibrahim and the others v. the uk (13th of September 2016)

2017 ◽  
Vol 25 (4) ◽  
pp. 327-346 ◽  
Author(s):  
Anneli Soo
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Criminal Proceedings ◽  
Case File ◽  
Court Of Justice ◽  
European Court ◽  
The Supreme Court ◽  
The Uk ◽  
The Right ◽  
Right Of Access

In Directive 2013/48/eu the standard for remedies applicable in cases the right of access to a lawyer has been violated was built on the European Court of Human Right’s judgment Salduz v. Turkey (27 November 2008). Shortly before the deadline to implement Directive 2013/48/eu, the Strasbourg Court handed down its judgment on Ibrahim and the others v. the uk (13 September 2016) significantly lowering this standard. In its ruling on 4 May 2016, the Supreme Court of Estonia interpreted the right of access to a case file upon arrest in conjunction with the Strasbourg case law, without considering that eu law might raise the standard. This article argues that the question whether to follow the Salduz- or Ibrahim-standard serves as a perfect opportunity for the European Court of Justice to clearly articulate that Strasbourg standards on defence rights form just a part of the foundation that eu standards consist of.

scholarly journals GUARANTEE OF THE RIGHT TO SILENCE AND OF THE RIGHT NOT TO CONTRIBUTE TO ONE’S OWN INCRIMINATION IN ROMANIAN CRIMINAL PROCEDURE LAW

2018 ◽  
Vol 2 (83) ◽  
pp. 25
Author(s):  
Carmen Adriana Domocos
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
Fair Trial ◽  
European Court Of Justice ◽  
European Convention ◽  
Criminal Offence ◽  
Court Of Justice ◽  
European Court ◽  
Right To Silence ◽  
The Right

The Romanian legislation establishes in the new penal procedure law the right to silence and the right of non-incrimination of the defendant in the criminal trial.The right to silence (to remain silent) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights, according to which judicial authorities cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect or a defendant to make statements, while having, however, a limited power to draw conclusions against them, from their refusal to make statements.Therefore, the right to silence involves not only the right not to testify against oneself, but also the right of the suspect or defendant not to incriminate oneself. The suspect or defendant cannot be compelled to assist in the production of evidence and cannot be sanctioned for failing to provide certain documents or other evidence. Obligation to testify against personal will, under the constraint of a fine or any other form of coercion constitutes an interference with the negative aspect of the right to freedom of expression which must be necessary in a democratic Romanian society.The right not to contribute to one’s own incrimination (the privilege against self-incrimination) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention, according to which judicial bodies or any other state authority cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect, a defendant or a witness to cooperate by providing evidence which might incriminate him or which could constitute the basis for a new criminal charge. It is essential to clarify certain issues as far as this right is concerned.

Access to Justice in Environmental Matters: Recent Developments

2012 ◽  
Vol 14 (2) ◽  
pp. 179-185
Author(s):  
Charles Poncelet
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Access To Justice ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Recent Developments ◽  
The Right ◽  
Right Of Access

Abstract The right of access to justice in environmental matters constitutes one of the three pillars enshrined by the Århus Convention to which the European Union is a Party. This article will examine a recent judgment of the European Court of Justice. Indeed, the latter appears to play an important role in the implementation of this procedural right.

scholarly journals The Case Law of the European Court of Justice on Access to Justice in the Aarhus Convention and Its Implications for Switzerland

2014 ◽  
Vol 11 (4) ◽  
pp. 348-366
Author(s):  
Astrid Epiney ◽  
Benedikt Pirker
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Access To Justice ◽  
Present Contribution ◽  
Court Of Justice ◽  
European Court ◽  
Aarhus Convention ◽  
Scope Of Application ◽  
The Right

The present contribution assesses the case law of the European Court of Justice interpreting the provisions of the Aarhus Convention relating to access to justice. Cases have dealt with the temporal scope of application of provisions on access to justice, projects implemented by specific acts of national legislation and their exclusion from the obligations under the Convention, interim relief and the effet utile of provisions on access to justice, the range of possible pleas for judicial review, the role of procedural errors, permissible costs of proceedings, access to justice for environmental associations under different provisions of the Convention and the annulment of a permit and its relationship with the right to property. As is also shown, this case law is at the same time relevant – though not binding – for Switzerland as a non-eu Member State, but party to the Convention.

scholarly journals ACCESS TO JUSTICE IN CRIMINAL PROCEEDINGS: LEGAL STANCES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Lex Russica ◽  
2020 ◽  
pp. 56-67 ◽  
Author(s):  
T. Yu. Vilkova
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
European Court ◽  
Different Types ◽  
Protection Of Human Rights ◽  
The Right ◽  
Right Of Access

The article is devoted to the analysis of the stances developed in the case law of the European Court of Human Rights regarding the content, scope, general principles of ensuring the right of access to justice, and permissible limits applied to restrict the right in question. The author has substantiated the conclusion that the European Court of Human Rights associates access to justice with Paragraph 1 of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus, the concept of access to justice includes a number of elements: the right to have recourse to court; the right to have a case heard and resolved in compliance with the requirements of a fair trial; the right to have the judgment enforced; the set of safeguards that allow the person to exercise the rights under consideration effectively. According to the European Court of Human Rights, access to justice should be ensured at all stages including pre-trial (criminal) proceedings and reviewing of court decisions by higher courts. However, the right of access to justice is not absolute. The restrictions imposed must have a legitimate purpose and reasonable proportionality must be obtained between the means used and the goal determined. In view of the requirement mentioned above, the national legislation may provide for the particularities of application of Paragraph 1 of Article 6 of the Convention to proceedings in different types of courts and at different stages, for example, by establishing a certain procedure for the court to grant individuals the right to appeal to a higher court. The author has demonstrated the main directions of applying the legal stances of the European Court of Human Rights regarding access to justice to improve the Russian criminal procedural legislation and law enforcement practices, as well as for further scientific research.

COMPANIES AND THEIR FUNDAMENTAL RIGHTS: A COMPARATIVE PERSPECTIVE

2015 ◽  
Vol 64 (3) ◽  
pp. 661-696 ◽  
Author(s):  
Peter Oliver
Keyword(s):  
Freedom Of Speech ◽  
Case Law ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Double Jeopardy ◽  
Court Of Justice ◽  
European Court ◽  
The Us ◽  
Us Supreme Court ◽  
The Right

AbstractThis article explores the case law of the European Court of Human Rights, the European Court of Justice and the US Supreme Court on the fundamental rights of commercial companies. The rights considered include property, the privilege against self-incrimination, freedom of speech, double jeopardy, the right to make political donations, and the freedom of religion. The article highlights the dangers of taking the fundamental rights of companies too far, as has recently occurred in the US; and it advocates a cautious and coordinated approach to this delicate issue, which has become increasingly important on both sides of the Atlantic.

scholarly journals The presumption of innocence in EU law: One step forward, two steps backwards

Crimen ◽  
2021 ◽  
Vol 12 (1) ◽  
pp. 38-52
Author(s):  
Svetlana Nenadić
Keyword(s):  
Case Law ◽  
Legal Regulation ◽  
Fundamental Rights ◽  
Presumption Of Innocence ◽  
Eu Law ◽  
Criminal Proceedings ◽  
Eu Member States ◽  
Court Of Justice ◽  
European Court ◽  
The Right

The topic of the paper is the presumption of innocence in EU law and the case law of the Court of Justice EU. The paper begins by outlining legal regulation of the presumption of innocence in the Charter of fundamental rights of the EU and the Directive on certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings. The second part of the paper analyzes the case law of the Court of Justice EU in the application of the Directive with special reference to the presumption of innocence standards of the European Court of Human Rights. The paper points out the minimalistic orientation of the CJEU regarding the presumption of innocence, which in some elements lowers the standards of protection offered by ECtHR. Low standards threaten to produce a domino effect on the criminal courts in EU member states, which could create a risk to the presumption of innocence as a guarantee of the legitimacy of criminal proceedings.

scholarly journals Implementation of the competitiveness of the parties during the trial in the criminal proceedings of Ukraine

2020 ◽  
pp. 70-76
Author(s):  
N. Syza ◽  
I. Syzyi
Keyword(s):  
Supreme Court ◽  
General Procedure ◽  
Case Law ◽  
Equal Rights ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
Legitimate Interests ◽  
Court Proceedings ◽  
The Right

The article reveals the essence of the principle of adversarial proceedings of the parties and the peculiarities of its implementation during the trial in the criminal proceedings of Ukraine. The theoretical views of scientists, which determine the essence of adversarial proceedings and the role of the court in criminal proceedings, are considered. Through the prism of the parties' adversarial proceedings, the norms of the Criminal Procedure Code of Ukraine (CPC) are analyzed, which determine the general procedure of court proceedings, as well as the procedural form of individual court actions. Amendments to the CPC to provide introductory speeches at the beginning of the trial to both the prosecution and the defense, which are aimed at ensuring equal rights of the parties and expanding the adversarial nature of the parties at this stage. The problems of ensuring the adversarial nature of the parties have been clarified, taking into account the case law of the Supreme Court and the European Court of Human Rights (ECtHR). The analysis of the case law of the ECtHR concluded that ensuring the right to a fair trial in criminal proceedings presupposes that the trial, including procedural elements, must be adversarial and in this process the principle of equality of arms and defense must be ensured. Attention is paid to the peculiarities of the parties' adversarial proceedings in special court proceedings, jury trials and criminal proceedings in the form of private prosecution. It is established that in the case law of the Supreme Court the participation of the prosecutor in the trial of criminal proceedings in the form of private prosecution is recognized as a guarantee of equality and adversarial proceedings, as well as protection of the rights and legitimate interests of the victim. Such participation is obligatory, except in the case when the prosecutor refused to support the state prosecution, and the victim agreed to support the prosecution in court

scholarly journals Abuse of Law Doctrine in Tax Law

2020 ◽  
Vol 7 (3) ◽  
pp. 156
Author(s):  
Viola Tanto
Keyword(s):  
Tax Evasion ◽  
General Principle ◽  
Tax Avoidance ◽  
Case Law ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
European Court ◽  
The Right ◽  
Abuse Of Law

This paper was written in order of the reforming of the tax system’s framework. Analysing phenomena such as tax evasion, tax avoidance, the use of legal loopholes to reduce tax liability in Italy was very challenged. The purpose of this paper is to verify, in the light of most interventions the latest case law of the European Court of Justice, if it exists in the field of direct and indirect taxes, a general principle of abuse of law. The existence of this provision will be analyzed in the context of the principle of legal certainty. We should analyse the concept of abuse of law as a normative problem and historical-evolutionary phenomenon. In this paper a special place is taken by the genesis of the concept of abuse of Community law and the general principle of prohibition of abuse of the right in function of a general anti-avoidance norm, its meaning, effects and role as a corrector of the system. We have addressed the role of jurisprudence of the European Court of Justice, dividing it into two parts: Abuse in field of harmonized taxation- Halifax Doctrine and Abuse in the field of disharmonized taxation -The leading case-Cadbury Schweppes.

El acceso a la justicia en materia ambiental en la jurisprudencia del Tribunal de Justicia de la Unión Europea

2014 ◽  
pp. 1245-1267
Author(s):  
Antonio EMBID IRUJO
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Access To Justice ◽  
The European Union ◽  
Locus Standi ◽  
Court Of Justice ◽  
European Court ◽  
Relevant Role ◽  
Judicial Procedures ◽  
The Right

LABURPENA: Justizia eskuratzeko aukera ingurumenerako eskubidearen funtsezko alderdia da, eta, oro har, ingurumen-babesarena. Europar Batasuneko Justizia Auzitegiak paper oso garrantzitsua du ingurumenaren zaintzan, eta berdin gertatzen da justizia eskuratzeko aukeraren gaineko jurisprudentziarekin ere. Bereziki, legitimazioa zabaltzeko lan egiten du, hori Europako araudiarentzat eta Europak ere berretsi duen Aarhus Hitzarmenarentzat mesedegarri den moduan interpretatuz. Era berean, prozedura administratiboek eta judizialek gehiegizko gasturik ez eragiteko erabaki garrantzitsuak ere badaude. RESUMEN: El acceso a la justicia es parte esencial del derecho al medio ambiente y, en general, de la protección ambiental. El Tribunal de Justicia de la Unión Europea juega un papel relevante en la protección ambiental y lo mismo sucede en la jurisprudencia sobre el acceso a la justicia. En particular su labor se desarrolla para ampliar la legitimación, interpretando de forma favorable a la misma normativa europea y el Convenio de Aarhus también ratificado por Europa. Igualmente existen decisiones relevantes para impedir un coste excesivo de los procedimientos administrativos y judiciales. ABSTRACT: Access to justice is a key element of the right to environment and in general of the enviromental protection. The European Court of Justice of the European Union plays a relevant role in the enviromental protection and the same applies to its case law regarding access to justice. Particularly, its work is carried out in order to broaden the locus standi by interpreting the same European normative and the Aahrus convention also ratified by Europe more favaourably. Likewise, there exist relevant rulings to prevent an excesive cost of administrative and judicial procedures.

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