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.

Reconstructing the European Court of Human Rights’ Article 8 Jurisprudence in Deportation Cases: The Family’s Right and the Public Interest

2020 ◽  
Vol 20 (2) ◽  
pp. 333-360
Author(s):  
Jonathan Collinson
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Case Law ◽  
Best Interests ◽  
European Convention ◽  
The Public ◽  
European Court ◽  
Two Factors ◽  
The One ◽  
The Right

Abstract This article rationalises the case law of the European Court of Human Rights under Article 8 of the European Convention on Human Rights in deportation cases involving children. The Court engages in a balancing exercise between the right to family life of the deportee’s family on the one side, and the public interest in deportation on the other. This article expands on existing case law analysis by suggesting that in deportation cases, the Court considers Article 8 as a form of commonly held right, rather than an individual right held by one member of the family. Furthermore, the balance is argued to be constructed as a relationship between two factors on both sides, rather than of a sole factor on either side as being determinative. This article concludes that the best interests of the child (one of the ‘Üner criteria’) is not adequately reflected in the Court’s deportation decision-making practice.

The Accession of the European Union to the European Convention on Human Rights Four Years after Opinion 2/13: Should We Lose Hope?

2019 ◽  
Vol 9 (2) ◽  
pp. 222-250
Author(s):  
Anna Francesca Masiero
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
The Other ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Criminal Matters ◽  
Principle Of Legality

The accession of the European Union to the European Convention on Human Rights is an issue frequently addressed by (not only internationalist) legal scholars, who stress that it would allow for an optimisation of the level of protection of fundamental rights in the European legal area. After reviewing the historical stages of accession, this paper focuses on the second opinion of the Court of Justice regarding it (Opinion 2/13 of 2014). Therein, accession is presented as an unattainable goal, probably because of the refusal of the Court of Justice to submit to the other European court, the Strasbourg Court of Human Rights. Subsequently, the paper reviews the possible effects of accession on the current legal scenario with special attention to the Italian legal system. Finally, it aims at figuring out how accession could affect criminal matters: in particular, by means of an example concerning the principle of legality, the purpose is to demonstrate how accession could lead to an improvement of the criminal guarantees of the European legal area.

scholarly journals ADMINISTRATION OF JUSTICE DURING THE COVID-19 PANDEMIC AND THE RIGHT TO A FAIR TRIAL

2021 ◽  
Author(s):  
Krešimir Kamber ◽  
Lana Kovačić Markić
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
World Health ◽  
European Convention ◽  
European Court ◽  
Administration Of Justice ◽  
The Right ◽  
The Way

On 11 March 2020 the World Health Organization announced the Covid-19 (coronavirus) to be a pandemic. To combat the pandemic, many countries had to adopt emergency measures and some of these measures have affected the judicial system, especially the functioning of courts. The pandemic has been characterised as far as the judiciary is concerned by complete or partial closure of court buildings for the parties and for the public. It is clear that the functioning of national judicial systems has been severely disrupted. This limited functioning of courts impacted the individuals’ right to a fair trial guaranteed, in particular, under Article 6 of the European Convention on Human Rights. The aim of this article is to examine the manner of the administration of justice during the Covid pandemic and its impact on the due process guarantees. Focus is put on the extent to which different Covid measures, in particular remote access to justice and online hearings have impacted the guarantees of the right to a fair trial and the due process guarantees in general, notably in detention cases. In this connection, the article provides a comparative overview of the functioning of the European legal systems during the pandemic. It also looks into the way in which the two European courts – the European Court of Human Rights and the Court of Justice of the European Union functioned, as well as the way in which the Croatian courts, including the Constitutional Court, organised their work during the pandemic. The article then provides an insight into the issue of online/remote hearings in the case-law of the European Court of Human Rights and in the Croatian Constitutional Court’s case-law. On the basis of this assessment, the article identifies the differences in the use of remote/online hearings between and within jurisdictions. In conclusion, the article points to some critical considerations that should be taken into account when devising the manner in which any Covid pandemic experience with the administration of justice (notably with regard to remote/online hearings) can be taken forward.

scholarly journals KAZNA DOŽIVOTNOG ZATVORA U EVROPSKOM SISTEMU ZA ZAŠTITU LJUDSKIH PRAVA

2021 ◽  
Vol 59 (1) ◽  
pp. 159-171
Author(s):  
Nezir Pivić ◽  
Lejla Zilić-Čurić
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Research Paper ◽  
European Convention ◽  
Legal Analysis ◽  
Life Imprisonment ◽  
Human Right ◽  
Legal Standards ◽  
European Court ◽  
The Subject

Sentencing to life imprisonment is not in contrast with human rights issued in European Convention for the protection of Human Rights and Fundamental Freedoms. However, the sentenced imposed to life imprisonment and system to of its execution must meet certain standards to be compatible with requirements stated in Article 3 of European Convention. The subject of our research paper are mentioned standards that Contracting States have to respect in terms of enforcing the sentence of life imprisonment. Introduction to the subject of the research is given in the form of penological review of life imprisonment as well as review of internationally established legal standards under the umbrella of the United Nations and the Council of Europe that relate to sentencing and enforcement of life imprisonment. In focus of this research paper is case law of the European Court of Human Rights that refer to life imprisonment. In that context, the focus of this research paper deals with the issue of the relationship between life imprisonment and prohibition of torture as human right that is absolutely protected and the issue of the Contracting States’s margin in appreciation in prescribing the form and conditions of revision of the sentence. The intention of the authors is focused on the legal analysis of Strasbourg case law on issue of compatibility of life imprisonment with the requirements of the Article 3 of the European Convention and to present the standards generated by Strasbourg case law regarding the implementation and mechanism of revision of life imprisonment.

The Principle of Legality and Administrative Punishment under the ECHR: A Fused Protection

2021 ◽  
Vol 13 (4) ◽  
pp. 33-51
Author(s):  
Agno Andrijauskaito
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Legal Provisions ◽  
European Court ◽  
Administrative Punishment ◽  
Principle Of Legality ◽  
The Relationship

The principle of legality permeates the entire legal system based on the rule of law. It is especially well-pronounced in criminal law. However, what are its content, scope and implications when it comes to prescribing and punishing for offences which are supposedly less reprehensible, namely – administrative offences? How precisely should they or the sanctions that they stipulate be defined in legal provisions? Furthermore, is there any room for interpretation while imposing sanctions by public bodies? This article seeks to delve into these vexed questions by examining the relationship between the principle of legality and administrative punishment within the framework of the Council of Europe ('CoE') and the implications stemming therefrom. This will be done by dissecting the rationale and notion of this principle in the normative sources of the CoE with a special emphasis on Article 7 of the European Convention on Human Rights and its (autonomous) application in the case law of the European Court of Human Rights as well as by identifying the shortcomings of the current perception of the legality principle in the context of administrative punishment.

Wyrok ETPC jako precedens wiążący quasi de iure a efektywność porządku Europejskiej Konwencji Praw Człowieka (perspektywa teoretycznoprawna)

2017 ◽  
pp. 7-29
Author(s):  
Bartosz Liżewski
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
European Convention ◽  
International Court Of Justice ◽  
Stare Decisis ◽  
European Court ◽  
International Court ◽  
Protection Of Human Rights ◽  
The One

In the system of the European Convention on Human Rights (ECHR or the Convention), the basic formula for creating standards for the protection of human rights is to define their understanding of and possible modifications or changes as a result of a law-making interpretation of the provisions of the Convention. The substantive rules of the Convention since its inception, not only have not changed (they were amended or derogated), but in addition are very general. This causes, that the way their understanding sets the European Court of Human Rights (ECHR or tribunal) forming in a legislative standards for the protection of human rights. That raises the interesting question of theoretical, since in public international law on the one hand the judgment of an international court is recognized as an auxiliary source of international law (art. 38 sec. 1 point d Statute of the International Court of Justice), while not applicable rule of stare decisis, meaning legally bound judgment precedent of other courts in similar cases. If, however, a violation of well-established case law of the ECHR by the national authorities is the reason for the judgment of the committee of three judges without a hearing (art. 28 paragraph. 1 point b ECHR). Judgments of the Court (the monopoly of interpretation of the ECHR) must be respected and enforced in order of national law (Art. 46 paragraph. 1 and 2 of the ECHR). This raises the natural question of the scope of their precedensowości for the tribunal and law enforcement organs in the national legal system. It is with this problem both theoretical and practical. The obvious fact is that the decision of the ECHR does not create a precedent in the sense of how suitable term in common law. However, its decisions affect application of the law on domestic, not only in reality, but partly also legal, so that it can be concluded that the judgment has the power of the normative and, to some extent binding. But what is the scope of the precedent character of this sentence? The answer to this question is the subject of considerations to be taken in the paper.

scholarly journals Psychiatric Commitment: Sixty Years Under the Scrutiny of the European Court of Human Rights

2021 ◽  
Vol 12 ◽  
Author(s):  
Gérard Niveau ◽  
Camille Jantzi ◽  
Tony Godet
Keyword(s):  
Human Rights ◽  
International Institutions ◽  
Case Law ◽  
Psychiatric Practice ◽  
European Convention ◽  
Major Influence ◽  
Direct Effects ◽  
Council Of Europe ◽  
European Court ◽  
The One

Background and Aims: In the field of mental health, the fundamental right to liberty is a point of tension between the practice of psychiatric commitment on the one hand and the universal concept of human rights on the other. The European Court of Human Rights (ECtHR) is a very specific means of safeguarding human rights because it allows an individual to not only assert their rights but also compel a state to bring its legislation into conformity with the principles of the European Convention on Human Rights. The aim of this study was to gather the case-law of the ECtHR on psychiatric commitment over the last 60 years and to determine how this case-law has affected national legislation and therefore psychiatric practice.Methods: Jurisprudence data were collected from the HUDOC ECtHR database, and the direct effects of the ECtHR judgements on the legislations of the countries concerned were collected from the HUDOC EXEC database of the Council of Europe. The case-law of the Court included 118 judgements and 56 decisions and concerned 31 of the 45 countries that have ratified the Convention.Results: This study therefore showed a direct effect of the Court's case-law on the legislation on psychiatric commitment in the various countries that have ratified the Convention. It was also possible to detect an indirect effect of this case-law through the directives of international institutions such as the directives of the Committee of Ministers of the Council of Europe concerning respect for people with mental disorders.Conclusions: The ECtHR case-law therefore has a major influence on the psychiatric practice in all Council of Europe countries.

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.

The Debate about Soviet Genocide in Lithuania in the Case Law of The European Court of Human Rights

2020 ◽  
pp. 1-16
Author(s):  
Dovilė Sagatienė
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Genocide Convention ◽  
Legal Regulations ◽  
Legal Instrument ◽  
Soviet Occupation ◽  
European Court

Abstract Since 1990 Lithuania has been claiming that what happened there during Soviet occupation is genocide, as per the 1948 Genocide Convention, which embodies universal justice for suppressed nations and other groups. Due to Soviet actions in Lithuania throughout the periods of 1940-1941 and 1944-1990, the country lost almost one fifth of its population. The application of Lithuanian national legal regulations regarding this issue has been recently discussed in the framework of another postwar international legal instrument – the European Convention of Human Rights (1950). The goal of this article is to examine the main debates, which were revealed by the European Court of Human Rights in the cases of Vasiliauskas v. Lithuania (2015) and Drėlingas v. Lithuania (2019), regarding the killings of Lithuanian partisans, including the recognition of the significance of partisans for the Lithuanian nation, the foreseeability of genocide “in part,” as well as the punishment for complicity in killing Lithuanian partisans.

Sign in / Sign up

Export Citation Format

Share Document