scholarly journals In the Best Interest of the Child? Justifying Decisions on Adoption from Care in the Norwegian Supreme Court

2021 ◽  
Vol 29 (3) ◽  
pp. 609-639
Author(s):  
Hege Stein Helland
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Supreme Court ◽  
Critical Evaluation ◽  
Blind Spot ◽  
Decision Making Process ◽  
Best Interest ◽  
European Court ◽  
The Supreme Court ◽  
Rational Argumentation

Abstract By utilising theories of deliberation and rational argumentation, this article critically analyses the Norwegian Supreme Court’s best interest decisions in four judgments on adoption from care. How does the Supreme Court reason their decisions and are the decisions rational? The findings show that the decisions are reasoned similarly, and conclusions are guided by norms of biology, vulnerability and stability for the child. However, discretion is applied differently across decisions, and the reasoning and balancing of individual arguments vary. The critical evaluation displays weaknesses in all judgments: one important blind spot is the failure to include the child’s views in the decision-making process. The development in terms of delivering rational, well-reasoned and thorough judgments is nonetheless positive. Furthermore, the Supreme Court’s recognition and protection of the child’s de facto family situation correspond to observed developments in the European Court of Human Rights as well as in national state policy on adoption.

Insult of Public Officials

2021 ◽  
pp. 388-409
Author(s):  
Christoph Bezemek
Keyword(s):  
United States ◽  
Human Rights ◽  
Supreme Court ◽  
The United States ◽  
Public Officials ◽  
European Court ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
Structural Differences

This chapter assesses public insult, looking at the closely related question of ‘fighting words’ and the Supreme Court of the United States’ decision in Chaplinsky v New Hampshire. While Chaplinsky’s ‘fighting words’ exception has withered in the United States, it had found a home in Europe where insult laws are widely accepted both by the European Court of Human Rights and in domestic jurisdictions. However, the approach of the European Court is structurally different, turning not on a narrowly defined categorical exception but upon case-by-case proportionality analysis of a kind that the US Supreme Court would eschew. Considering the question of insult to public officials, the chapter focuses again on structural differences in doctrine. Expanding the focus to include the Inter-American Court of Human Rights (IACtHR) and the African Court on Human and Peoples’ Rights (ACtHPR), it shows that each proceeds on a rather different conception of ‘public figure’.

ECHR decision to refuse to waive the immunity of a person under article 1 of the protocol no. 6: Individual interpretations of the essence and consequences

2021 ◽  
Vol 28 (3) ◽  
pp. 257-267
Author(s):  
Bohdan V. Shchur ◽  
Iryna V. Basysta
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Method Comparison ◽  
Scientific Basis ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
International Obligations ◽  
Grand Chamber ◽  
The Individual

In present-day Ukraine, there is no unanimous answer to the question of the essence and consequences of the ECHR decision to refuse to waive immunity under Article 1 of the Protocol No. 6 either in the national criminal procedural legislation, or in the theory of criminal procedure, or among judges, investigators, prosecutors. Therefore, the purpose of the present paper is to try to attempt to formulate individual approaches to address this issue. The relevance of the subject under study is conditioned upon its theoretical and practical components. The former is that there this area is heavily understudied, and judicial practice, among other things, requires a certain scientific basis to formulate individual positions in their unity. The dilemma proposed in the title of this study was also addressed by members of the Scientific Advisory Board of the Supreme Court, who were approached by judges of the Grand Chamber for scientific opinions, emphasising the urgency and necessity of feedback from practitioners. To formulate the individual approaches serving the purpose of this study, the authors employed such general and special research methods as dialectical, induction and deduction, Aristotelian, system-structural, sampling method, comparison, and legal forecasting. Notwithstanding the fact that the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6, adopted by its plenary session in accordance with Article 4 of the Protocol No. 6 to the General Agreement on Privileges and Immunities of the Council of Europe, is “procedural”, it was proven that the Grand Chamber of the Supreme Court has the authority to conduct proceedings on the application of such a person to review the judgment precisely in exceptional circumstances. It is emphasised that the ECHR decision should be considered as one that does not aim at the final assessment of criminal proceedings, so it cannot be equated with the decision of an international judicial institution, which would state Ukraine's violation of international obligations in court and the order of its execution will differ. The authors also address the fact that the consequences of the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6 are critical. After all, such a decision of the European Court of Human Rights is the “bell” for Ukraine, which, among other things, may hint at the probability that the Court will identify the facts of human rights violations

14. Land Law and Human Rights

Land Law ◽  
2020 ◽  
pp. 593-629
Author(s):  
Chris Bevan
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
European Convention ◽  
Land Law ◽  
European Court ◽  
The Supreme Court ◽  
Rights Discourse ◽  
Human Rights Discourse ◽  
The Relationship

This chapter examines the relationship between land law and human rights. From a distinctly land law perspective, the human rights discourse has given rise to much debate, which continues to fuel much academic commentary including recent examination of the availability of horizontal effect in McDonald v McDonald in the Supreme Court and in the European Court of Human Rights. The chapter focuses chiefly on the two most pertinent provisions of the European Convention on Human Rights (ECHR) for land law; namely Art. 1 of the First Protocol and Art. 8 and reflects on the, at times, difficult relationship between land law and human rights.

scholarly journals Are inspections conducted by selected administrative bodies compliant with the Constitution of the Slovak Republic and the European Convention on Human Rights?

2018 ◽  
Vol 2 (1) ◽  
pp. 70-79
Author(s):  
Lucia Smolková
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Supreme Court ◽  
Slovak Republic ◽  
Case Law ◽  
European Convention ◽  
Constitutional Court ◽  
Related Case ◽  
European Court

This paper analyses the case law of the Slovak Constitutional Court and the Slovak Supreme Court dealing with inspections conducted by selected Slovak administrative bodies – especially by the administrative bodies in the area of foodstuffs administration – where inspected companies complain that their rights guaranteed by the Slovak Constitution and the European Convention on Human Rights, namely the protection of their business premises, have been violated. The paper thus also deals with and analyses the related case law of the European Court of Human Rights and its (non)-application by the Slovak judicial bodies in their decision-making practice.

The Janus face of imprisonment: Contrasting judicial conceptions of imprisonment purposes in the European Court of Human Rights and the Supreme Court of the United States

2020 ◽  
pp. 174889582091196
Author(s):  
Netanel Dagan
Keyword(s):  
United States ◽  
Human Rights ◽  
Supreme Court ◽  
Personal Responsibility ◽  
The United States ◽  
Policy Implications ◽  
Management Tool ◽  
Moral Concept ◽  
European Court ◽  
The Supreme Court

This article considers how the Supreme Court of the United States and the European Court of Human Rights apply, interpret and frame abstract imprisonment purposes, and how they view their relevance to prison conditions, while discussing the constitutionality of prison conditions. The article argues that the Supreme Court and the European Court of Human Rights view, conceptualise and interpret the purposes of imprisonment differently. Regarding the purposes of retribution and rehabilitation specifically, the analysis presented in the article exposes a ‘Janus face’, meaning that each purpose can, and is, interpreted in two different, and almost contrasting ways. The article offers three themes regarding the conceptualisation of imprisonment purposes by the Supreme Court and the European Court of Human Rights: First, the relationship between the purposes of sentencing and imprisonment along the penal continuum, and the role of rehabilitation in a prison regime: should sentencing purposes be relatively static during their implementation in prison, meaning that retributive-oriented sentencing purposes should be pursued (Supreme Court), or should they conversely progress with the passage of time, from retribution to resocialisation as the primary purpose of imprisonment (European Court of Human Rights). Second, the meaning of retributivism in regard to prison conditions: should prisoners pay a debt to society by suffering in restrictive prison conditions (Supreme Court), or is retributivism achieved by atonement and by finding ways to compensate or repair harms caused by crime (European Court of Human Rights). Third, the way in which prison rehabilitation is framed and understood: should prison rehabilitation be seen as a risk management tool aimed purely at lowering recidivism (Supreme Court), or as a moral concept grounded in a prisoner’s ability to change his life and belief in personal responsibility for one’s actions (European Court of Human Rights). Possible theoretical implications and general policy implications are considered in the article.

DUAL ATTRIBUTION OF ACTS COMMITTED BY A UN PEACEKEEPING FORCE: AN EMERGING NORM OF CUSTOMARY INTERNATIONAL LAW? THE DUTCH SUPREME COURT’S JUDGMENTS IN NUHANOVIÇ AND MUSTAFIĆ

2014 ◽  
Vol 23 (1) ◽  
pp. 287-297 ◽  
Author(s):  
Christine Bakker
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Supreme Court ◽  
International Law ◽  
Access To Justice ◽  
Customary International Law ◽  
Judicial Practice ◽  
Un Peacekeeping ◽  
European Court ◽  
The Supreme Court

In two cases lodged by victims (or their relatives) of the massacre in Srebrenica in 1995, the Supreme Court of the Netherlands has taken a progressive stance on the interpretation of international law on the responsibility of States and international organizations for wrongful acts. The Supreme Court upheld the earlier decisions of The Hague Court of Appeal, confirming that the Netherlands can be held responsible for the death and injuries of these victims, despite the fact that the Dutch troops employed to protect this enclave were part of a United Nations (UN) peacekeeping force. By accepting the possibility of dual attribution of an internationally wrongful act to both the UN and the troop-sending State, it has departed from the restrictive approach adopted in current judicial practice, in particular by the European Court of Human Rights. In this note, the Supreme Court’s judgments are discussed, focusing on (i) the question of dual attribution of an international wrongful act, and (ii) the extraterritorial application of human rights treaties. It concludes that, although the Supreme Court’s reliance on two sets of Draft Articles of the International Law Commission without referring to any State practice is surprising, these judgments should be welcomed as significant precedents, which may contribute to the development of a norm of customary international law. They also constitute an important step towards ensuring access to justice and reparation for the victims of gross human rights violations, such as those committed in Srebrenica.

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