Positive Obligations under the European Convention on Human Rights: Towards the Human Rights of Victims and Vulnerable Witnesses?

2003 ◽  
Vol 67 (2) ◽  
pp. 165-182 ◽  
Author(s):  
Claire de Than
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Codes Of Practice ◽  
Current Reform ◽  
Partial Form ◽  
Victims Of Crime

This article argues that victims of crime and vulnerable witnesses already have identifiable human rights stemming from the positive obligations under the European Convention on Human Rights. Since these rights do exist, albeit in partial form, it is suggested that the focus of current reform proposals should be on upholding and extending these rights rather than simply creating guidelines, codes of practice and ombudsmen.

4. Improperly obtained evidence other than confessions

2019 ◽  
pp. 61-78
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Human Rights ◽  
Common Law ◽  
European Convention ◽  
Judicial Discretion ◽  
Codes Of Practice ◽  
Character Evidence ◽  
Confession Evidence ◽  
Hearsay Evidence

This chapter focuses on evidence that is relevant but improperly obtained and thus may be excluded by judicial discretion. It looks at the exclusionary discretion contained within section 78 of the UK’s Police and Criminal Evidence Act 1984 (PACE), and explains how common law and statutory exclusionary discretion may be exercised in relation to other areas of evidence, such as character evidence and hearsay evidence, other than confessions. The chapter also looks at the most common areas of exclusion, other than confession evidence, including breach or evasion of legislation such as PACE and the Codes of Practice. It also reviews when a stay of prosecution might be the appropriate procedure. Finally, it discusses the relevant principles of Article 6 of the European Convention on Human Rights (ECHR) that are enshrined in section 78 of PACE.

scholarly journals The proportionality principle and what it means in practice

2011 ◽  
Vol 35 (3) ◽  
pp. 111-116 ◽  
Author(s):  
Martin Curtice ◽  
Fareed Bashir ◽  
Sanjay Khurmi ◽  
Juli Crocombe ◽  
Tim Hawkins ◽  
...  
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Mental Capacity ◽  
European Convention ◽  
Mental Health Act ◽  
Codes Of Practice ◽  
Principle Of Proportionality ◽  
Mental Capacity Act ◽  
The Uk ◽  
Human Rights Based Approach

SummaryThe Mental Health Act 2007 and the Mental Capacity Act 2005 have been made compatible with the European Convention on Human Rights (as enacted in the UK by the Human Rights Act 1998). The respective Codes of Practice have now embedded within them a human rights-based approach. Central to this is the principle of proportionality, which is regarded as the dominant theme underlying the Convention. This article explores the legal basis of proportionality, specifically analysing its use in relation to the Mental Health Act and the Mental Capacity Act. In doing so, it considers the use of the principle of proportionality in clinical practice.

4. Improperly obtained evidence other than confessions

2017 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Human Rights ◽  
Common Law ◽  
European Convention ◽  
Judicial Discretion ◽  
Codes Of Practice ◽  
Character Evidence ◽  
Confession Evidence ◽  
Hearsay Evidence

This chapter focuses on evidence that is relevant but improperly obtained and thus may be excluded by judicial discretion. It looks at the exclusionary discretion contained within section 78 of the UK’s Police and Criminal Evidence Act 1984 (PACE), and explains how common law and statutory exclusionary discretion may be exercised in relation to other areas of evidence, such as character evidence and hearsay evidence, other than confessions. The chapter also looks at the most common areas of exclusion, other than confession evidence, including breach or evasion of legislation such as PACE and the Codes of Practice. It also reviews when a stay of prosecution might be the appropriate procedure. Finally, it discusses the relevant principles of Article 6 of the European Convention on Human Rights (ECHR) that are enshrined in section 78 of PACE.

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.

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