‘Outsourcing’ the integrated approach to interpretation: The implications of Association of Academics v Iceland

2020 ◽  
Vol 11 (1) ◽  
pp. 90-96
Author(s):  
Halldor Kr. Thorsteinsson
Keyword(s):  
Human Rights ◽  
National Level ◽  
Integrated Approach ◽  
National Courts ◽  
European Court ◽  
Interpretative Approach ◽  
The Right

The European Court of Human Rights has recognised the right to strike as falling within the ambit of Article 11 ECHR. The Strasbourg Court has expanded the scope of the provision by applying the so-called integrated approach, integrating materials of other international bodies into the interpretation of the Convention. Recently, the protection of the right to strike under Article 11 (1) ECHR has been threatened by the expansion of Article 11 (2). The concurrent expansion of the two provisions has created a rift in the jurisprudence of the Court. The inconsistent application of the integrated approach poses a further threat to the protection of the right to strike. This article focuses on a recent verdict of the Strasbourg Court, Association of Academics v Iceland. The decision raises questions about the interpretative approach of the Court. It has been criticised for neglecting the integrated approach. It is argued that the integrated approach was not completely abandoned in Association of Academics. Instead, the Court granted discretion to the national courts once it had established that the integrated approach was applied at a national level. The ‘outsourcing’ of the integrated approach in the case led to unfortunate results for the right to strike, as the Court permitted extensive restrictions to the right on weak substantial grounds. The essay concludes with discussing the possible implications of the decision.

Comparative Views on the Right to Vote in International Law

2018 ◽  
Author(s):  
Shai Dothan
Keyword(s):  
Human Rights ◽  
International Law ◽  
National Courts ◽  
European Court ◽  
Right To Vote ◽  
The Right ◽  
Democratic Elections ◽  
The Way

There is a consensus about the existence of an international right to vote in democratic elections. Yet states disagree about the limits of this right when it comes to the case of prisoners’ disenfranchisement. Some states allow all prisoners to vote, some disenfranchise all prisoners, and others allow only some prisoners to vote. This chapter argues that national courts view the international right to vote in three fundamentally different ways: some view it as an inalienable right that cannot be taken away, some view it merely as a privilege that doesn’t belong to the citizens, and others view it as a revocable right that can be taken away under certain conditions. The differences in the way states conceive the right to vote imply that attempts by the European Court of Human Rights to follow the policies of the majority of European states by using the Emerging Consensus doctrine are problematic.

scholarly journals General and Particular Approaches to Implementation of theEuropean Convention on Human Rights

2018 ◽  
Vol 55 ◽  
pp. 248-292
Author(s):  
VLADIMÍRA PEJCHALOVÁ GRÜNWALDOVÁ
Keyword(s):  
Human Rights ◽  
National Level ◽  
Case Law ◽  
European Convention ◽  
Constitutional Courts ◽  
The Czech Republic ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
European Court

AbstractThis article deals with the implementation, at the national level, of European human rights protection standards as enshrined in theEuropean Convention on Human Rights(ECHR) and interpreted by the European Court of Human Rights (ECtHR). It discusses the principles of interpretation of theECHRby the ECtHR, the interaction and mutual dialogue between the ECtHR and national courts, and the approach of the latter to interpretation and application of the case law of the ECtHR. Using the concrete examples of France and the Czech Republic as case studies, it is shown to what extent and how European constitutional courts take into account and apply the letter of the Convention and its interpretation by the ECtHR.

scholarly journals Free legal aid in the context of the right of access to court

2020 ◽  
Vol 59 (89) ◽  
pp. 65-82
Author(s):  
Dušica Palačković ◽  
Jelena Čanović
Keyword(s):  
Human Rights ◽  
National Level ◽  
European Convention ◽  
Quality Level ◽  
The European Union ◽  
Legal Aid ◽  
European Court ◽  
The Republic ◽  
The Right ◽  
Right Of Access

The Constitution of the Republic of Serbia explicitly regulates that free legal aid shall be stipulated by the law. In a series of reports on the progress of the Republic of Serbia in the process of joining the EU, there are warnings about the unacceptably low quality level and efficiency of the judiciary, and indications that there is a need to regulate the legal aid system. Finally, this matter was regulated by enacting the Legal Aid Act of the Republic of Serbia, which came into force on 1st October 2019. In addition to the conceptual definition of legal aid, the paper analyzes the right of access to court as a constituent element of the right to a fair trial prescribed in Article 6 of the European Convention on Human Rights, which entails the right to legal aid. The regulation of legal aid at the national level has to meet the standards formulated at the European Union level as well as the standards formulated through the practice of the European Court of Human Rights. In that context, the paper analyzes the regulations and decisions, i.e. the widely recognized and accepted standards. The Legal Aid Act of the Republic of Serbia has been analyzed in the context of meeting these standards, especially in relation to the conditions for granting the right to legal aid and the circle of beneficiaries and providers of certain types of legal aid.

scholarly journals CIVIL CLAIM IN A CRIMINAL PROCEEDING IN UKRAINE AS A MEANS OF GUARANTEE AND PROTECTION OF INDIVIDUALS’ RIGHTS

2020 ◽  
pp. 174-177
Author(s):  
O. A. Tymoshenko
Keyword(s):  
Human Rights ◽  
Justice System ◽  
National Level ◽  
The State ◽  
Criminal Proceedings ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
Technical Requirements ◽  
European Court

The article deals with analyzing the state of the civil claim scientific research in criminal proceedings in Ukraine and summarizing it. It was determined the relevance of scientific rethinking of the phenomenological foundations of a civil claim in criminal proceedings. It is proved that the importance of the mechanism of criminal justice has the issue of legal support of the institute of civil claim, as an important component of guaranteeing and protecting the rights and freedoms of citizens. First of all, this is explained by the importance of a civil claim in criminal proceedings, its actual role that a civil claim plays in the justice system, ensuring the protection of the violated rights of citizens. On the basis of the state critical analysis of a civil claim legal support in criminal proceedings in Ukraine, it was determined its components and given their characteristics, which include: 1) the subjective component of the legal relations relating to civil claim in criminal proceedings in Ukraine; 2) the procedural issues of filing and considering a civil claim; 3) legal and technical requirements relating to the form and content of the civil claim. It was made and justified the provisions concerning the prospects of improving the civil claim mechanism functioning in criminal proceedings in Ukraine. Transformation of scientific understanding and practical perception of civil claim in criminal proceedings as a means of securing and protecting human rights and freedoms has been proved, on the basis of which the directions of improving the functioning of the said legal institute in Ukraine are distinguished, namely: 1) enhancing the role and importance of the European Court of Justice’ s activities human rights in extending his practice to litigation in criminal proceedings in Ukraine; 2) strengthening the mechanisms of human rights protection at the domestic (national) level in accordance with the requirements of international law, which are a component of civil claim in criminal proceedings; 3) improve the procedure for enforcement of the decisions of the national courts of Ukraine in the part related to civil claim in criminal proceedings, etc.

scholarly journals Reflection of Decisions of the European Court of Human Rights on Impartiality and Independence of National Courts in Context of the Right to a Fair Trial

2021 ◽  
Vol 5 (1) ◽  
pp. 67-90
Author(s):  
Alla Demyda
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
National Courts ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Principles Of Justice ◽  
The Right

The article focuses on the principle of impartiality and independence of judiciary as a part of the right to a fair trial according to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In particular, an account will be taken of the case law of the European Court of Human Rights in matters of applications from national judges. The article considers the reflection of the decision of the European Court of Human Rights on the amendment of national legislations and the amendment of the provisions of the national constitutions regarding the principles of justice.

Ensure the Inviolability of Personal Life in the Conduct of Police Preventive Activities

Law and World ◽  
2020 ◽  
Vol 6 (2) ◽  
pp. 51-59
Keyword(s):  
Human Rights ◽  
Personal Data ◽  
Private Life ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Human Beings ◽  
National Courts ◽  
European Court ◽  
Principle Of Proportionality ◽  
The Right

The paper addresses the basic rights and freedoms guaranteed by the Constitution of Georgia, in particular, issues related to personal data. The development of information technology has had a significant impact on the dangers of illegal processing of personal data. The European Court of Human Rights considers the inviolability of private life as a precondition for human autonomy, independent development and protection of human dignity. According to the norms of international law, the right to respect for private life is recognized as one of the most important and fundamental rights, the protection of which is indicated by the legislation of Georgia. The aim of the paper is to analyze the legislation and practice of police law in the field of protection of the right to privacy and to offer relevant recommendations, taking into account the standards set by European and national courts. Human rights legislation must ensure the protection of all human beings against the abuse of state power. Interference with rights must be based on the principle of proportionality. The use of policing should not pose an excessive threat of fundamental human rights violations. Interference with a particular right must be done under principle of proportionality to achieve a certain public good. In clarifying the issue of alleged violation of the right, special attention should be paid to the severity and probability of the expected threat to legal good. The Constitution of Georgia, EU and Council of Europe data protection standards, national legislation, as well as the case law of the European Court of Human Rights and the National Constitutional Court are analyzed around the topic. In addition, the reports of the State Inspector, the Public Defender and the relevant scientific literature are used to study the above issues.

The European Court of Human Rights Interptetation of Migrants Cases: Basic Doctrinal Approaches

2019 ◽  
pp. 132
Author(s):  
SVITLANA KARVATSKA
Keyword(s):  
Human Rights ◽  
Comparative Method ◽  
National Level ◽  
Migration Policy ◽  
Practical Consideration ◽  
European Court ◽  
Wide Range ◽  
Migrants Rights ◽  
The Right ◽  
The Impact

The doctrinal substantiation of the practical consideration of precedents in relation to ensuring and violating the migrants’ rights is in sight of the representatives of various field of science. It is also a subject of complex international legal, political, historical, economic, demographic, anthropological and social studies. However, a rapid dynamic development, caused by various factors in migration processes, and its institutionalization requires picky and thorough scientific analysis of some important issues such as the migration problem, the impact of the right to migrate, political and rational incentives for migration, consideration of the interpretation of such cases by the European Court of Human Rights (ECtHR) for a further and comprehensive settlement of migration policy on both European and national level. Although particular steps are being taken to create a sustainable regulatory framework for the recognition and assurance of human rights in response to current challenges and to systemic drawbacks of the national human rights mechanism – the problems of migration and asylum are very urgent and thorny. The purpose of the article is to analyse doctrinal approaches and legal positions of the ECtHR in the process of interpretation in the field of migration. The use of the research methodology was caused by the specifics of the study subject. The comprehensive approach to analysis, which combines a wide range of philosophical, general scientific, special scientific and legal methods, served as a research basis. Thus, the dialectical method has allowed substantiating a regular nature of the formation of an evolutionary approach to the interpretation of ECtHR judgments. The anthropological approach emphasized on the place and role of man in the process of legal interpretation. With the help of the hermeneutic method, the concept of the categories “migrant”, “migrants’ rights”, “asylum”, as well as the content of the doctrinal approaches and legal positions of the Court were disclosed, while a systematic method reflected the interrelationship between them. The statistical method made it possible to quantitatively synthesize the case law of the ECtHR in the field of migration and asylum. The use of the comparative method allowed to carry out a comparative analysis of doctrinal approaches employed by the Court in considering various categories of migration issues in different periods of its activities. It is proved that the ECtHR uses many doctrinal approaches, the Court emphasizes on the need to adhere to the principle of wide margin of appreciation. In cases of deportation of foreigners convicted of a criminal offense, the Court is guided by the principle of proportionality. Most of the cases examined by the ECtHR concerning migrants are related to the provision of asylum. The interpretation activities of the Court are focused on identifying barriers to asylum and formulating the principle of prohibition of dismissal, if the asylum seeker was forced to leave his country caused by various circumstances such as humanitarian crisis, non-selective violence, real threat / danger, denial of justice, or unlawful detention or conviction by a manifestly unfair trial in country of residence, or procedural violations against migrants and etc. The ECtHR has also focused on assessing the risks of not granting asylum, in particular, harsh treatment and has formulated the predominance principle of the child’s extraordinary vulnerability, which prevails over the status of the illegal stay presence as a foreigner on the territory of the state

scholarly journals Human and civil rights as a determiner of national state-building

Legal Ukraine ◽  
2020 ◽  
pp. 6-12
Author(s):  
Oleksandr Nelin
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Current Theory ◽  
The State ◽  
Theory And Practice ◽  
Legal Doctrine ◽  
Human Rights Protection ◽  
National Courts ◽  
European Court ◽  
The Right

At the present stage of their development the Ukrainian society and the state are characterized by their pursuit to provide maximum realization of human and civil rights and to create a full-scale civil society. Obviously, in this context, a significant attention is paid to the human rights in Ukraine, however there is insufficient research systematically conceptualizing the human rights employing philosophical and legal instruments and methodology. The author highlights that particular attention in the mechanism of organizational and legal remedies is paid to judicial and extrajudicial protection of human and civil rights. In accordance with the Article 55 of the Constitution of Ukraine the judicial protection of human and civil rights is maintained through the system of general jurisdiction courts of Ukraine. The state ensures the right of every person to appeal in court against any decisions, actions or inactivity of the state bodies, local self-government bodies and government officials that violate human and civil rights. In case of exhausting all remedies of his/her rights and liberties protection in national courts the person can appeal to the international courts, e.g. to the European Court of Human Rights. At present, Ukraine holds the third position in the number of its citizens’ appeals to this distinguished international legal institution. Every person is able to appeal to the extrajudicial institutions authorized to protect the constitutional human and civil rights and liberties. In Ukraine there is a special body for this purpose — the Ukrainian Parliament Commissioner for Human Rights, whose activities are determined by the Law of Ukraine «On the Ukrainian Parliament Commissioner for Human Rights» of 23 December, 1997. In case when all extrajudicial remedies of human rights protection are exhausted, a person has the right, guaranteed by the Constitution of Ukraine, to appeal to the international human rights organizations (Art. 55). In terms of the current theory and practice of guaranteeing the constitutional human and civil rights, together with the national regulatory, organizational and legal guarantees, it is worth to distinguish the international guarantees of the constitutional human and civil rights and liberties in Ukraine. The special international legal guarantees of the human and civil rights and liberties are usually divided into regulatory and institutional ones. Key words: human and civil rights and liberties, constitutional state, national legal doctrine, international law, imitation of human rights, constitutional and legal mechanism for ensuring human rights and liberties.

scholarly journals Decisões da Corte Europeia de Direitos Humanos como base para Revisão de Julgamentos de Tribunais Nacionais

2018 ◽  
Vol 12 (2) ◽  
Author(s):  
Lydia A. Тerekhova
Keyword(s):  
Human Rights ◽  
Public Relations ◽  
National Level ◽  
Scientific Work ◽  
Causal Link ◽  
Constitutional Court ◽  
National Courts ◽  
European Court ◽  
Scientific Results ◽  
Evolutionary Interpretation

DECISÕES DA CORTE EUROPEIA DE DIREITOS HUMANOS COMO BASE PARA REVISÃO DE JULGAMENTOS DE TRIBUNAIS NACIONAIS *  EUROPEAN COURT OF HUMAN RIGHTS JUDGEMENT AS A BASIS FOR REVIEW OF THE NATIONAL COURTS' JUDGEMENT  Lydia A. Тerekhova**  RESUMO: A autora considera o procedimento de execução das decisões da Corte Europeia de Direitos Humanos através da possibilidade de rever a decisão do tribunal russo sob novas circunstâncias. Como nova circunstância, o reconhecimento pelo Tribunal Europeu de Direitos Humanos da violação das cláusulas da Convenção a respeito da Proteção dos Direitos Humanos e das Liberdades Fundamentais é considerado um caso particular pelo tribunal, em conexão com a decisão sobre a qual o requerente solicitou à TEDH. O Tribunal Constitucional da Federação Russa acredita que os tribunais da Federação Russa são obrigados a solicitar ao Tribunal Constitucional sempre que ao rever um caso sobre novas circunstâncias, eles chegam à conclusão de que a questão da possibilidade de aplicar a lei relevante só pode acontecer depois de confirmar a sua conformidade com a Constituição da Federação Russa. PALAVRAS-CHAVE: Revisão de Atos Judiciais. Corte Europeia de Direitos Humanos. Supremacia Constituição da Federação Russa. Interpretação Evolutiva. Prática de Cooperação. Princípio da Subsidiariedade. ABSTRACT***: The purpose of the article – a critical analysis of the position of the Constitutional Court of the Russian Federation, the justification, through the analysis of the ECtHR practice and scientific work on execution of the ECtHR judgments, about the coordination of positions of national courts and the supranational body. The methodological basis for the study: general scientific methods (analysis, synthesis, comparison); private and academic (interpretation, comparative legal, formal-legal). Problems and basic scientific results: The issue of implementation of the Human Rights Court decisions at the national level occurs when the compensation is not enough to eliminate the revealed violations. Russian legislator opted for the situation of Human Rights by the European Court finding a violation of the provisions of the Protection of Human Rights and Fundamental Freedoms in the consideration by the court of a particular case, in connection with the decision by which the applicant applied to the ECtHR mechanism for review of the decision on the new circumstances. Supreme Court puts forward three conditions for the implementation of the revision of the judicial act on a national level, which should be available at the same time: 1) the continuous nature of the adverse effects; 2) the existence of violations of the Convention or gross procedural violations; 3) a causal link between the breach and the consequences. The author point out that the regulation of possible conflicts between the Convention and national legislation is based on cooperation (not confrontation) States and the European Court of Human Rights. Such practice of cooperation based on the principles of subsidiarity (addition to national rights protection system); evolutionary interpretation of the Convention (which implies flexibility, and accounting for changes in public relations); Judges dialogue and to develop advisory opinions. Consequently, the task of the Constitutional Court can not be default search options, on the contrary, its task – to determine exactly how, taking into account the differences in the legislation, the decision will be enforced. Failure, as well as the improper execution of judgments of the ECtHR may involve the establishment of a new violation of the provisions of the Convention and sanctions against violators. KEYWORDS: Review of Effectual Judgments. European Court of Human Rights. Supremacy of RF Constitution. Evolutionary Interpretation. Cooperation Practices. Principle of Subsidiarity.* Artigo originalmente pulicado em língua russa, sob o título Постановление Европейского Суда по Правам Человека как Основание для Пересмотра Решения Национального Суда, no periódico Правоприменение (Direito Aplicado), v. 1, n. 1, 2017, p. 173-183. Agradecemos a editora da Universidade Estatal Dostoevsky de Omsk, Rússia, pela autorização e suporte na publicação desta edição em português. Tradução de Olga Alyokhina Alves e revisão de Fernando César Costa Xavier, professor adjunto do Instituto de Ciências Jurídias da Universidade Federal de Roraima (UFRR). ** Doutora em Direito. Docente e Chefe do Departamento de Direito Processual Civil e Arbitral da Universidade Estatal Dostoevsky de Omsk, Rússia.  *** Esse é o abstract do artigo original; conforme se vê, mais abrangente do que o resumo na língua máter, provavelmente buscando a autora com isso ser mais didática e específica para os eventuais leitores estrangeiros. Optou-se por se manter esse abstract ampliado feito pela própria autora (N. do R.).

The Relationship between Hate Propaganda and Incitement to Genocide: A New Trend in International Law Towards Criminalization of Hate Propaganda?

2005 ◽  
Vol 18 (2) ◽  
pp. 257-282 ◽  
Author(s):  
WIBKE KRISTIN TIMMERMANN
Keyword(s):  
Human Rights ◽  
Hate Speech ◽  
International Crime ◽  
Genocide Convention ◽  
European Court ◽  
Military Tribunal ◽  
The Status ◽  
The One ◽  
Interpretative Approach ◽  
The Right

This article focuses on the development of the crime of incitement to genocide and the prohibition of hate propaganda. It first examines the conflict which exists between these and the right to freedom of speech and concludes that a limitation of this right through prohibition of hate propaganda and criminalization of incitement to genocide is justifiable. The article then analyses how the crime of incitement to genocide and the prohibition of hate propaganda first developed historically, focusing on judgments by the International Military Tribunal at Nuremberg and the Genocide Convention, on the one hand, and on international conventions and case law by the Human Rights Committee and the European Court of Human Rights, on the other. Next, recent ICTR decisions are examined, in which the ICTR has considerably clarified and extended the concept of incitement to genocide. The tribunal has brought it closer to encompassing vicious hate propaganda by acknowledging that in order to incite individuals to commit genocide, incitement in the sense of instigation is insufficient; it requires the prior creation of a certain climate in which the commission of such crimes is possible. Hate propaganda leads to the creation of such a climate. It is argued that, for several reasons, virulent hate propaganda must be accorded the status of an international crime. Genocide could be prevented more effectively if such speech were criminalized. Several efforts to outlaw hate propaganda internationally in the past are examined. The article concludes that it can be regarded as a crime punishable under the Genocide Convention if a purposive interpretative approach is used, and that hate propagandists should be prosecuted for direct and public incitement to genocide if their hate speech is engaged in with the specific intent to commit genocide, and creates a substantial danger of genocide.

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