Austrian Constitutional Court: Vegan Landowner Must Tolerate Hunting on his Property

ICL Journal ◽  
2017 ◽  
Vol 11 (1) ◽  
pp. 129-137
Author(s):  
Nina Palmstorfer

Abstract It follows from the settled case-law of the European Court of Human Rights (ECtHR) that the legal obligation of landowners to tolerate hunting on their property, although they oppose hunting on ethical grounds, may constitute a violation of the right to the peaceful enjoyment of one’s possessions. On the occasion of a landowner’s constitutional complaint the Austrian Constitutional Court assessed such obligation under the Carinthian Hunting Act and came to a different conclusion. In Austria there was a particular public interest in the comprehensive management of game which justifies the obligation to tolerate hunting despite of one’s beliefs. The landowner’s possibility to have the hunt suspended on land that is fully enclosed by a stable fence provided for in the provision was considered appropriate in order to protect the owners’ ethical interests. The Austrian Constitutional Court thus found that the compulsory hunting on one’s land in Carinthia does not violate Article 1 of Protocol No 1 to the ECHR.

Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 620-644
Author(s):  
Tamás Korhecz

The right to peaceful enjoyment of property is a first-generation human right, protected by the international and domestic law of the highest rank. This is not an absolute right - the European standards of protecting property rights allow possible interferences prescribed by law. The interferences can be made in the public interest but only under the assumption that the proportionality between the public interest and property rights of individuals at stake is established. Forfeiture of undeclared cash the individuals are transferring across state borders, together with imposing fines for a misdemeanor, represent an interference with individuals' property rights. The EU Member States do not share an identical system of sanctions for this petty offense, but there is a tendency of unification related to the monitoring, registering, and sanctioning of undeclared, cross-border, individual cash transfer. The case-law of the European Court of Human Rights has established rather precise criteria for distinguishing permitted from unpermitted interferences in cases of undeclared cross-border cash transfers. The Serbian Constitutional Court has been faced with several constitutional complaints regarding alleged unconstitutionally of the imposed security measure amounting to the forfeiture of undeclared cash physically transferred across the state borders. The Constitutional Court has ruled inconsistently on the matter. Although it has regularly referred to the European Court of Human Rights' relevant decisions, it fails to be consistent in following the Strasbourg Court's rulings. In this article, the author has suggested that the legal certainty principle requires the Constitutional Court to consistently interpret the constitutional rights and be systematic in following Strasbourg. Only in this way, the Constitutional Court can help regular courts effectively to harmonize the interpretation and application of laws with the constitutional and international human rights standards regarding property rights.


Author(s):  
Silvia DEL SAZ

LABURPENA: Giza Eskubideen Europako Auzitegiaren jurisprudentziaren ondorioz, Konstituzio Auzitegiak aurreko doktrina zuzendu behar izan du. Horretarako, errugabetasun-presuntziorako eskubidearen irismena zabaldu behar izan du, eta, administrazio-ebazpen zehatzaileetatik eta zigor-epaietatik harago, kalte-ordaina ukatzen duten erabakietara zabaldu du hori, Botere Judizialaren Lege Organikoaren 294. artikuluak eskatzen duen bezalaxe, errugabetasun-presuntzioaren printzipioa ezarri ostean akusatua absolbitu egin den baina delituzko egintzak egon ez zirela frogatu ez den kasuetarako. RESUMEN: Fruto de la jurisprudencia del Tribunal Europeo de Derechos Humanos, el Tribunal Constitucional se ha visto obligado a rectificar su doctrina anterior extendiendo el alcance del derecho a la presunción de inocencia, más allá de las resoluciones administrativas sancionadoras y sentencias penales, a los pronunciamientos que, tal y como exige el art. 294 LOPJ, deniegan la indemnización en atención a que el acusado fue absuelto en aplicación del principio de presunción de inocencia sin que haya quedado probado que los hechos delictivos no existieron. ABSTRACT: As a result of the case law by the European Court of Human Rights, the Constitutional Court was compelled to rectify its former doctrine by broadening the scope of the right to the presumption of innocence beyond punitive administrative resolutions and criminal judgments to rulings that as art. 294 of Judiciary Act requires, deny the award of damages on the ground that the accused was acquitted due to the application of the principle of innocence without having been proved that the criminal offences did not exist.


2020 ◽  
Vol 20 (2) ◽  
pp. 333-360
Author(s):  
Jonathan Collinson

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.


2019 ◽  
Vol 1 (2) ◽  
pp. 58-83
Author(s):  
Janusz Roszkiewicz

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.


Author(s):  
Lyusya Mozhechuk ◽  
Andriy Samotuha

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.


2020 ◽  
Vol 11 (11) ◽  
pp. 208-213
Author(s):  
Sverba Y. I.

The article is dedicated to the analysis of the concept of "access to justice". The national legislation, the case law of the Constitutional Court of Ukraine and the European Court of Human Rights, as well as academic papers have been analyzed by the author. The author concludes that there are at least two approaches to define the concept of "access to justice": broadside and restricted one. The latter is inherent in Ukraine, since the Constitution stipulates that justice in Ukraine is exercised by the courts exclusively. The case law of the European Court of Human Rights explored in this article demonstrates a broad interpretation of the right to a fair trial, as quasi-judicial authorities are often empowered to make decisions that directly affect a person's rights and obligations. Foreign researchers are more progressive in determining the concept of access to justice: the latter is considered as an intention to resolve person's legal problems, not limited with access to classical judicial protection. Even though the access to justice concept is not legally defined, it includes the core elements as legal awareness of person’s rights; lack of financial barriers to access to the court; the right to free legal aid guaranteed by the state; a fair and independent court; a reasonable time to settle a dispute, as well as the enforcement of the judgment. The state could ensure the effective access to justice only if all of the said elements are implemented. At the same time, the states have both positive (to provide the right to free legal aid) and negative obligations (not to interfere with court activities, etc.). Keywords: access to justice, justice, right to a fair trial, rule


2019 ◽  
Vol 56 (2) ◽  
pp. 443-467
Author(s):  
Hamdija Šarkinović

The paper deals with property, which is guaranteed by Article 58 of the Constitution of Montenegro and Article 1 of Protocol No.1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The constitutional-law concept of the right to property in Montenegro is broader than the traditional civil law concept, as it includes all real rights, as the European Court under the notion of property, in addition to the usual, includes all acquired rights of a person. The autonomous concept of property and possessions within the meaning of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms was separately covered, consisting of three rules: principle of peaceful enjoyment of possessions, deprivation of possessions, and control of the use of property. The application of the text of justification of interference with property in the case law of the European Court is explained, which includes the text of legality, the text of a legitimate aim in the general or public interest and the text of proportionality. However, the case law of the ordinary courts in the field of guarantees of property rights, constitutional and convention’s is not harmonized with the case law of the European Court of Human Rights and represents one of the main tasks of the Constitutional Court in the coming period. The Constitutional Court of Montenegro follows the concept of property enshrined in the Constitution and gives the property meaning as the constitutional and convention human right guaranteed by the Constitution, and its inviolability as one of the fundamental values of the constitutional order, although the case law of the Constitutional Court has not fully and always been coherent with the aforementioned principles.


2017 ◽  
Vol 1 (100) ◽  
pp. 441
Author(s):  
María del Mar Navas Sánchez

Resumen:Este artículo aborda el probablemente más controvertido supuesto relativo a la relación dialéctica entre las libertades de expresión e información y el derecho fundamental a la propia imagen. El que tiene como titular de este último derecho a quien puede ser considerado, en general, como un personaje público. Lo hace, además, desde una doble perspectiva. Por un lado, se muestra la evolución experimentada en el régimen jurídico del derecho a la propia imagen de este tipo de personas desde que en 1978 y de manera novedosa nuestra Constitución reconociera por vez primera el derecho a la propia imagen comoun derecho fundamental autónomo y diferenciado de la intimidad en el artículo 18.1 CE hasta nuestros días. Se trata de un proceso que ha venido marcado por varios hitos: la aprobación en 1982 de una norma (la Ley Orgánica 1/1982, de 5 de mayo, de protección civil del derecho al honor, a la intimidad y a la propia imagen) en la que el legislador establece pautas muy concretas acerca del modo en que han de resolverse este tipo de conflictos; la intensidad con la que esta Ley ha condicionado la jurisprudencia de los jueces y tribunales de la jurisdicción ordinaria, particularmente del Tribunal Supremo; y, finalmente, el importante papel desempeñado por la jurisprudencia del Tribunal Constitucional que, prescindiendo de las prescripciones legislativas y operando conforme a categorías constitucionales, ha terminado por erigir, en un proceso que, a su vez, hemos diferenciado en dos etapas, al interés público presente en las imágenes controvertidas, en el elemento decisivo para resolver este tipo de conflictos. Pero por otro, además, se presta especial atención a las recíprocas relaciones que a propósito de este supuesto se han establecido a lo largo de estas décadas entre las jurisprudencias de los Tribunales Constitucional,  Supremo y de Estrasburgo. En este sentido, nos ha parecido especialmenteinteresante fijarnos no solo en el modo en que el Tribunal Constitucional se ha servido del canon europeo (art. 10.2 CE) para construir su propia doctrina sobre el derecho fundamental a la propia imagen de los personajes públicos, sino también y muy particularmente, en la forma en que esta doctrina del Tribunal Constitucional ha sido seguida o no por el Tribunal Supremo y, por tanto, en el modo en que este último se ha sentido vinculado, si es que lo ha hecho, a la misma, dando así cumplimiento a su obligación constitucional (art. 5.1 LOPJ).Summary:1. Introduction. 2. The little, but adequate, express influence of the european canon in the first constitutional case law on the fundamental right to own´s image. 3. The fundamental right to their own image of public figures in the constitutional case law prior to STC 19/2014. Its almost null follow-up by the supreme court. 4. The fundamental right to their own image of public figures in the latest constitutional case law. Its —now yes— reception by the supreme court. 5. The relationship of constitutional case law with that of the European Court of Human Rights on this specific right, seen through STC 19/2014. 6. Conclusions.Abstract:This paper tackles the probably more controversial case concerning the dialectical relation between the freedoms of expression and information and the fundamental right to the own image. The one that refers to so-called «public figures». It does so from a dual perspective. On the one hand, it shows the evolution experienced in the right to their image of this type of people since Spanish Constitution, in 1978, recognized for the first time the right to own image as a fundamental right autonomous and different from the right to a private life (art. 18.1) to the present day. This is a process that has been marked by several landmarks: the adoption in 1982 of a rule (Organic Law 1/1982, of May 5, on civil protection of the right to reputation, privacy and own image) inwhich the legislator lays down very specific guidelines as to how such conflicts should be resolved; the intensity with which this Law has conditioned the case law of judges and courts of ordinary jurisdiction, particularly the Supreme Court; and finally, the important role played by the case law of the Constitutional Court, which, regardless of the legislative requirements and taking constitutional categories as references, has finally established, in a process that we have differentiated in two stages, the public interest of the images (or, in other words, the contribution made by photos to a debate of general interest) in the decisive element to solve this type of conflicts. But on the other hand, special attention is also paid to the reciprocal relations that have been established over these decades among the case law of the Constitutional, Supreme and Strasbourg Courts. On this regard, we have found particularly interesting to look not only at the way in which the Constitutional Court has used the jurisprudence of the European Court of Human Rights (Article 10.2 Spanish Constitution) to establish its own doctrine on the fundamental right to their image of public figures, but also, especially, in the way in which this doctrine of the Constitutional Court has been followed or not by the Supreme Court and therefore if the latter has fulfilled its constitutional obligation (Article 5.1 Organic Law of the Judiciary).


Author(s):  
Nelly Arakelyan

The author discusses the new tendencies of waiving human rights. In the article they are qualified as a new emerging institute of Human Rights Law. The definition of human rights waiver is discussed, as well as the necessity to give a legal regulation to it. The author presents the existing definitions of human rights waiver, but does not share any of them, particularly most of them define human rights waiver as not utilization of human rights, but the author calls this definition as a passive application of human rights, whilst waiver of human rights has its own content which is discussed in the article in details. Human rights waiver is discussed in the light of the co-relation of the right to autonomy and the principle of paternalism. The author presents some case law on waiver of human rights, which is very rare. Specifically, the author presents the case law of the Constitutional Court of the Republic of Armenia and the case law of the European Court of Human Rights. The legal positions of the mentioned bodies can serve as good criteria in dealing with human rights waiver. Particularly, the Constitutional Court of the Republic of Armenia held a decision dedicated to this issue and qualified waiver of human rights as an exception from the classical perception of human rights ideology. The author agrees with idea reflected in decision of the Constitutional Court concerning the correlation of human rights waiver and right to autonomy, according to which right to autonomy cannot be absolute and that absolute waiver of human rights can, in its turn, violate the human rights. In this context the author highlights the necessity of defining the limits of human rights waiver offering two important directions for discussion of this question; the scope of the rights which can and cannot be waived, the framework and criteria of a waiver of human rights.


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