Reforming Defence Rights in French Police Custody: A Coming Together in Europe?

2012 ◽  
Vol 16 (2) ◽  
pp. 153-174
Author(s):  
Aude Dorange ◽  
Stewart Field
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Constitutional Court ◽  
The European Union ◽  
Police Custody ◽  
Appeal Court ◽  
European Court ◽  
Major Reform ◽  
The Right ◽  
Criminal Matters

In April 2011 a major reform of the law regulating the police custody phase ( la garde à vue) was adopted by the French Parliament and implemented in June 2011. The new legislation confirms the right of immediate access to a lawyer in police custody and establishes a right to have that lawyer present during interrogation. This follows a series of decisions in 2010 by the European Court of Human Rights, the French Constitutional ‘Court’ ( Conseil constitutionnel) and the final appeal court with jurisdiction over criminal matters ( la Chambre criminelle de la Cour de cassation). These decisions declared existing limits to defence rights in the French police custody phase to be contrary to the European Convention on Human Rights, unconstitutional and unlawful. These developments have been much discussed in France (both positively and negatively) because they seem to signal a further shift away from France's inquisitorial tradition in criminal process. They can also be seen as part of a coming together of defence rights across Europe prompted by the European Union and the European Convention on Human Rights.

Some decisions of the European Court of Human Rights and the Court of the European Union con cerning the right of asylum

10.12737/5251 ◽  
2014 ◽  
Vol 2 (1) ◽  
pp. 68-74
Author(s):  
Габриэлла Белова ◽  
Gabriela Belova ◽  
Мария Хаджипетрова-Лачова ◽  
Maria Hadzhipetrova-Lachova
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
The European Union ◽  
Protective Mechanisms ◽  
Eu Member States ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Right ◽  
The Eu

The authors analyze certain cases considered in recent years by the European Court of Human Rights and the Court of European Union in Luxembourg and associated with providing of asylum to the third country nationals. In individual EU member states there are huge differences in the procedures and protective mechanisms for asylum seekers in their access to work, as well as in the use of mechanism of forced detention. Due to accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms, the EU should comply the standards set by the Council of Europe. The authors analyze the new approach of the Strasbourg Court in decision MSS v. Belgium and Greece unlike other "Dublin" cases. They also consider certain new judgements of the Court of European Union in Luxembourg, some of which were accepted in order of urgent prejudicial production.

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.

An Emerging Right to a “Gay” Family Life? The CaseOliari v. Italyin a Comparative Perspective

2016 ◽  
Vol 17 (3) ◽  
pp. 451-485 ◽  
Author(s):  
Sabrina Ragone ◽  
Valentina Volpe
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Same Sex Couples ◽  
European Court ◽  
National Perspective ◽  
The Right

This Article analyses, through the lens of comparative law, theOliari and others v. Italyjudgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. TheOliaricase is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrateOliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of theOliarijudgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.

The right to the protection of religious feelings versus freedom of expression in the light of the Constitution of the Republic of Poland and the European Convention on Human Rights

2019 ◽  
Vol 1 (2) ◽  
pp. 58-83
Author(s):  
Janusz Roszkiewicz
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Point Of View ◽  
European Convention ◽  
Constitutional Court ◽  
A Value ◽  
European Court ◽  
The Republic ◽  
The Right

This article concerns the right to the protection of religious feelings as a value which justifies a restriction of freedom of expression. The right to the protection of religious feelings can be protected by three methods: civil, penal and administrative. The issue is discussed from the point of view of the Constitution of the Republic of Poland and the European Convention on Human Rights, with particular emphasis on the case-law of the Polish Constitutional Court and the European Court of Human Rights in Strasbourg.

Diritto a una tutela giurisdizionale effettiva e revisione dei processi penali: la Corte costituzionale e il caso Dorigo

2009 ◽  
pp. 85-110
Author(s):  
Stefano Dorigo ◽  
Pietro Pustorino
Keyword(s):  
Human Rights ◽  
International Law ◽  
Critical Comment ◽  
European Convention ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
European Court ◽  
The Right ◽  
Italian Constitution ◽  
Italian Norms

- The work is a critical comment to the judgment of the Italian Constitutional Court of 30 April 2008, n. 129, on the reopening of the criminal proceedings requested by the European Court of Human Rights. The work begins dealing deeply with the problem of the customary nature in international law of the right to a fair trial and the consequent possibility to invoke, in the framework of the Italian national system, Article 10, paragraph 1, of the Constitution. The authors suddenly stress the relevance of other constitutional norms in order to recognize a constitutional or quasi-constitutional rank to the norms of the European Convention on Human Rights, demonstrating that the Italian Constitution offers several possibilities on the matter. A very recent judgment of the Court of Cassation, adopted on 11 December 2008, confirms this opinion interpreting the Italian norms on the reopening of the criminal proceeding on the basis of Articles 111 and 117 of the Constitution.

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 The Right to a Name Versus National Identity in the Context of eu Law: The Case of Lithuania

2017 ◽  
Vol 42 (4) ◽  
pp. 325-363
Author(s):  
Aistė Mickonytė
Keyword(s):  
European Union ◽  
Human Rights ◽  
National Identity ◽  
European Convention ◽  
The European Union ◽  
European Union Law ◽  
Member States ◽  
National Minorities ◽  
European Court ◽  
The Right

This article examines national regulations relating to the recognition of names in official documents by focusing on Article 21 of the Treaty on the Functioning of the European Union and Article 8 of the European Convention on Human Rights, having particular regard to the judgment of the European Court of Justice in the case of Runevič-Vardyn and Wardyn. It also assesses the potential impact that this and other cases before the ecj and the European Court of Human Rights may exert on national minorities. The recognition of names is not regulated in European Union law; thus, the eu member states may freely determine the usage of names in official documents, as the state language represents a constitutional value and part of the national identity of many eu member states. Therefore, only regulation of names that causes excessive interference with the exercise of freedom of movement or respect for private and family life is unlawful under eu law. This issue will also be discussed in light of Article 4(2) of the Treaty on the European Union, by which the ecj assesses these types of interference with the eu’s duty to respect the national identities of its member states.

The European Court of Human Rights and the right to clean water and sanitation

Water Policy ◽  
2018 ◽  
Vol 20 (2) ◽  
pp. 282-307 ◽  
Author(s):  
Katharina Franziska Braig
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Clean Water ◽  
The European Union ◽  
Human Right ◽  
Creative Development ◽  
Water And Sanitation ◽  
European Court ◽  
Degrading Treatment ◽  
The Right

Abstract The human right to clean water and sanitation is currently under discussion in the European Union. During this discussion, it should not be forgotten that another European organisation, namely the European Court of Human Rights (ECtHR), is becoming increasingly active regarding pan-European minimum standards relating to the right to clean water and sanitation. Although it is widely recognised that clean drinking water and sanitation are essential to the realisation of all human rights, no such obligation can be found in the European Convention on Human Rights (ECHR). This article reviews the creative development of the jurisprudence of the ECtHR concerning the right to clean water and sanitation using two interpretation techniques, namely the ‘living instrument’ doctrine and the ‘practical and effective’ doctrine. Today, the ECtHR recognises, for example, that a breach of a State's obligation to respect the right to water can amount to a violation of Article 3 of the Convention on inhuman or degrading treatment. By failing to oblige companies to curb water pollution, the Court has also held that a State can be liable for a breach of Article 8 of the Convention, namely the right to respect for private and family life.

scholarly journals Doprinos raspravi o načelu jednakosti procesnih sredstava

2017 ◽  
Vol 38 (1) ◽  
pp. 339-352
Author(s):  
Dejan Bodul ◽  
Sanja Grbić
Keyword(s):  
Human Rights ◽  
Equal Opportunity ◽  
Fair Trial ◽  
Essential Elements ◽  
European Convention ◽  
Constitutional Court ◽  
Structural Problems ◽  
Official Gazette ◽  
European Court ◽  
The Right

The principle of equality of arms requires that each party to the proceedings should have equal opportunity to present facts and support them with their evidence without of putting any party in a substantial disadvantage. (Case LB INTERFINANZ AG against Croatian, judgment, 27.03.2008 ., application no. 29549/04.). In terms of the procedural balance between the parties, this principle constitutes one of the essential elements of the right to a fair trial. However, the question of equality of arms is again raised in Bankruptcy Act (Official Gazette, 71/15. hereinafter: BA). BA has kept solution in which the creditor is able to initiate bankruptcy proceedings if he makes the existence of its claims likely possible and the existence of the reasons for bankruptcy. However, the legislator has retained the disputed solution in which the probability of the existence of the creditor claim can be proven by non-final judicial or non-final administrative decisions. As there are different solutions in terms of the above mentioned assumptions, the authors will focus on general statements based on comparative experiences, without detail consideration of the numerous and specific comparative solutions. This paper discusses the practical, but also theoretical implications of positive legal solutions specifically analysing the law of the European Court of Human Rights (ECtHR) in proceedings according to Art. 6 (right to a fair trial) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), because we assume that these information play key role in the understanding of the issue concerned. In addition, authors are trying to get the answer on the question will overall unsatisfied indicators of bankruptcy proceedings, which are the result of structural problems, need “stringent” procedural measures to resolve that situation. The subject of the paper is also a nomotehnical dimension of this issue, because the same solution was in the old Bankruptcy Act (Official Gazette, 44/96, 29/99, 129/00, 123/03, 82/06, 116/10, 25/12, and 45/13.) which suspended the Constitutional Court.

scholarly journals Role of the European Court of Human Rights in realization of social security right

2020 ◽  
Vol 2 (2) ◽  
pp. 55-63
Author(s):  
Lyusya Mozhechuk ◽  
Andriy Samotuha
Keyword(s):  
Human Rights ◽  
Social Security ◽  
Occupational Injuries ◽  
Case Law ◽  
European Convention ◽  
Constitutional Court ◽  
Economic Rights ◽  
European Court ◽  
The Right

The article deals with the role of the European Court of Human Rights (ECtHR) in protecting the right to social security. There is the analysis of the case law of the ECtHR on the violation of the right to social security, namely the right to receive a pension, which the ECtHR classifies as property rights. The authors have outlined the ways to improve the practice of the ECtHR in this area in modern national and world socio-economic conditions. According to available estimates, around 50 per cent of the global population has access to some form of social security, while only 20 per cent enjoy adequate social security coverage. Ensuring an ap-propriate mechanism for the protection of human and civil rights is a priority for every country. However, according to case law, the number of complaints of violations or non-recognition of their rights is growing every year. An important role in the protection of human rights in today's conditions is played by an international judicial body - the European Court of Human Rights. In Ukraine, where socio-economic rights are recognized at the constitutional level, their guarantee content in the current laws is still not clearly defined, and therefore, as evidenced by the practice of the Constitutional Court of Ukraine, legal mechanisms their protection, in particular the means of judicial control remain ineffective. The right to social security is the right to access and retention of benefits, both in cash and in kind, without discrimination in order to protect, in particular, against (a) lack of income from work caused by illness, disability, maternity, occupational injuries , unemployment, old age or death of a family member; (b) inaccessible access to medical care; (c) insufficient family support, especially for children and adult dependents. It is well known that the European Convention does not contain many socio-economic rights as such (with a few exceptions - protection of property and the right to education). Thus , the former president of the ECtHR Jean-Paul Costa specifically pointed to another important European human rights treaty – the European Social Charter. Human rights are a universal value, and their protection is the task of every state. The European Court of Human Rights plays an important role in protecting human rights in modern conditions. The functioning of such an international judicial institution can not only solve a problem of protection of violated rights, but also affect the development of the judicial system of each state. The main principle of realization and judicial protection of social rights is non-discrimination on the grounds of sex, age, race, national and social origin of the individual, and the role of auxiliary institutions of the Council of Europe in generalizing and improving the ECtHR’s activity has been emphasized.

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