State Responsibility and the Right to Personal Security in the drc: A Human Rights Law Perspective

2014 ◽  
Vol 7 (2) ◽  
pp. 233-251
Author(s):  
Gentil Kasongo Safari
Keyword(s):  
Human Rights ◽  
Democratic Republic Of Congo ◽  
Case Law ◽  
Armed Conflicts ◽  
State Responsibility ◽  
Due Diligence ◽  
Personal Security ◽  
Precautionary Measures ◽  
The Right ◽  
Mitigating Circumstances

The right to personal security has been grossly violated in eastern Democratic Republic of Congo for nearly two decades by persistent armed conflicts. Ensuring this right through justice in such a complex context is particularly challenging but feasible. This paper examines whether the drc should be judicially held accountable for violations of the right to personal security. Drawing on case-law, international practice and literature in the field of human rights, the paper demonstrates that under the doctrine of State responsibility the drc has the duty to exercise due diligence in protecting its inhabitants through legislation, precautionary measures and prosecution. It also explains, however, that the drc’s responsibility may not be established under certain mitigating circumstances and factors, such as loss of part of territorial control, the necessity of granting amnesty to some perpetrators of human rights violations and the difficulty of judicially determining the minimum core of the right to personal security. The paper concludes that the possibility of judicially holding the drc accountable for failure to respect its international human rights obligations has been demonstrated and recommends that to be capitalised by competent jurisdictions in order to improve the situation of the right to personal security on the ground.

scholarly journals Makuchyan and Minasyan v Azerbaijan and Hungary: Novel Questions of State Responsibility, Presidential Pardon, and Due Diligence of Sentencing Transfer Meet in a Rare Case of the Right to Life

2021 ◽  
pp. 1-16
Author(s):  
Kushtrim Istrefi ◽  
Cedric Ryngaert
Keyword(s):  
Human Rights ◽  
Rare Case ◽  
Legal Issues ◽  
State Responsibility ◽  
Due Diligence ◽  
Prison Sentence ◽  
Right To Life ◽  
Fourth Section ◽  
European Court ◽  
The Right

Judgment: European Court of Human Rights, Makuchyan and Minasyan v Azerbaijan and Hungary 17247/13 (ECtHR, 26 May 2020) Judgment (Merits and Just Satisfaction). Section of the Court: Chamber (Fourth Section). Applicable Convention Rights: Article 2 echr – violation of procedural obligations by Azerbaijan, no violation of substantive obligations by Azerbaijan, and no violation of procedural obligations by Hungary. Article 14 echr and Article 2 echr – violation by Azerbaijan. Article 38 – no violation by Azerbaijan or Hungary. Primary Legal Issues: Did Azerbaijan acknowledge and adopt the conduct of R.S. in question as its own, and does that violate substantive obligations under Article 2 echr; Did Azerbaijan violate the procedural limb of Article 2 by pardoning and releasing R.S. following his transfer from Hungary to Azerbaijan to serve the prison sentence; Did Hungary violate the procedural limb of Article 2 because of failing to secure specific diplomatic assurances that Azerbaijan will not release R.S. upon his transfer. Link to Case: <http://hudoc.echr.coe.int/eng?i=001-202524>.

The right to appeal to the European Court of Human Rights

2020 ◽  
Author(s):  
Yuliya Samovich
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Regulation ◽  
The European Union ◽  
Educational Organizations ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Procedure ◽  
The Right ◽  
Judicial Protection

The manual is devoted to making individual complaints to the European Court of human rights: peculiarities of realization of the right to appeal, conditions of admissibility and the judicial procedure of the European Court of Human Rights. The author analyses some “autonomous concepts” used in the court's case law and touches upon the possibility of limiting the right to judicial protection. The article deals with the formation and development of the individual's rights to international judicial protection, as well as the protection of human rights in universal quasi-judicial international bodies and regional judicial institutions of the European Union and the Organization of American States. This publication includes a material containing an analysis of recent changes in the legal regulation of the Institute of individual complaints. The manual is recommended for students of educational organizations of higher education, studying in the areas of bachelor's and master's degree “Jurisprudence”.

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.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

ON and DP v. Russian Federation

2021 ◽  
Vol 194 ◽  
pp. 463-486
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Russian Federation ◽  
Gender Stereotypes ◽  
Case Law ◽  
Due Diligence ◽  
Lesbian Women ◽  
Content Type ◽  
Rule Application ◽  
United Nations Convention

463Human rights — Women’s rights — Elimination of discrimination against women — Sexual orientation — Exhaustion of domestic remedies — Due diligence obligations — Obligation to investigate — Requirement of prompt and impartial investigation — Protection of lesbian women from violence — Gender stereotypes — Committee case law and general recommendations — Remedies — Whether Russian Federation violating Articles 1, 2 and 5 of United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1979International tribunals — Jurisdiction and admissibility — United Nations Committee on the Elimination of Discrimination against Women — Local remedies rule — Application in light of time bar under national law

The Right to Enter One’s Own Country: The Conflict between the Jurisprudence of the Human Rights Committee and the Travaux Préparatoires of Article 12(4) of the iccpr

2021 ◽  
Vol 10 (1) ◽  
pp. 75-123
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Political Rights ◽  
Civil And Political Rights ◽  
The Right

Abstract Article 12(4) of the International Covenant on Civil and Political Rights (iccpr) provides that ‘[n]o one shall be arbitrarily deprived of the right to enter his own country.’ The jurisprudence of the Human Rights Committee shows that Committee members have often disagreed on the question of whether the right under Article 12(4) is reserved for citizens only or it can be claimed by non-citizens who consider the countries in which they were born or they have lived for longer periods as their own. In its earlier case law, the Committee held that Article 12(4) is applicable to nationals only. Since 1999, when General Comment No.27 was adopted, the Committee has moved towards extending the right under Article 12(4) to non-nationals. Its latest case law appears to have supported the Committee’s position that Article 12(4) is applicable to non-nationals. Central to both majority and minority decisions in which the Committee has dealt with Article 12(4), is whether the travaux préparatoires of Article 12(4) support either view. This article relies on the travaux préparatoires of Article 12(4) to argue that it does not support the view that Article 12(4) is applicable to non-nationals.

L'azione dell'Unione europea contro le discriminazioni basate sulla religione: l'impatto della giurisprudenza della Corte europea dei diritti umani

2012 ◽  
pp. 475-511
Author(s):  
Federico Casolari
Keyword(s):  
Human Rights ◽  
General Framework ◽  
Case Law ◽  
Legal Order ◽  
Equal Treatment ◽  
Freedom Of Religion ◽  
Eu Law ◽  
The Right ◽  
The Impact ◽  
The Eu

Law Although EU law has established a general framework concerning the fight against discriminations on the grounds of religion (namely as far as equal treatment in employment and occupation is concerned), the related ECJ case law is not very rich. This article tracks and evaluates the impact of the ECHR case law devoted to the freedom of religion on the interpretation and application of EU law concerning religion discriminations. It argues that the ECHR case law may contribute to identify the notion of ‘religion' which is relevant for EU law, while several arguments may be put forward against the application of the Strasbourg approach to the balancing between the right to quality based on religion and others human rights into the EU legal order.

Sign in / Sign up

Export Citation Format

Share Document