scholarly journals Problem religijnego wychowania dzieci w poniemieckim prawie II Rzeczypospolitej

2021 ◽  
Vol 20 (1) ◽  
pp. 9-26
Author(s):  
Bartłomiej Władysław Tarkowski ◽  
Keyword(s):  
Human Rights ◽  
German Law ◽  
Comparative Law ◽  
Point Of View ◽  
Current Line ◽  
Second Republic ◽  
Mixed Marriages ◽  
European Court ◽  
Entire Country ◽  
Polish Law

We are witnessing mass migrations. Far more than a million Ukrainians, people close to Poles, ethnically and culturally, constantly live and work in Poland. Likewise, the multitude of Poles are continually abroad. Frequently members of different religions marry each other (or analogous informal relationships are established), they have children and want to raise them religiously or instil them a different worldview. What religion or worldview should their mutual children receive in case of their parents’ differences in beliefs? Paternalistic Prussia issued casuistic regulations regarding this. Initially, they were based on rather just assumptions, but quickly took the anti-Polish form. The reborn Second Republic of Poland decided that until the implementation of the Polish law, unified in the scale of the entire country, the post-annexation regulations should apply temporarily in the areas of their existing application. No unequivocal answer how religiously (ideologically) mixed marriages should raise their children in this respect has been provided in Polish law since 1946, that is, from the unification of Polish family law. In order to find a solution of this issue within comparative law studies, we should look at post-German law and jurisprudence of the Second Republic of Poland, particularly at indirectly assessing them judgment of the European Court of Human Rights in the case of Hoffmann v. Austria. This ruling shaped the current line of jurisprudence of the European Court of Human Rights. It was issued by a minimal majority of votes: 5 to 4, with 4 dissenting opinions. The point of view presented in it has been more widely accepted with time. The Court’s ruling in the case of Palau-Martinez v. France, which repeatedly invoked this judgment, was adopted by 6 votes to 1, with only 1 dissenting opinion.

The European Convention on Human Rights and International Law

2007 ◽  
Vol 56 (2) ◽  
pp. 217-231 ◽  
Author(s):  
Luzius Wildhaber
Keyword(s):  
Human Rights ◽  
International Law ◽  
Comparative Law ◽  
Case Law ◽  
European Convention ◽  
Mutual Relationship ◽  
Public International Law ◽  
European Court ◽  
Special Character ◽  
British Institute

AbstractThis article is an expanded and footnoted version of the lectur given at the British Institute of International and Comparative Law on Tuesday 21 March 2006, entitled ‘International Law in the European Court of Human Rights’.The article begins with some comparative comments on the application of the European Convention on Human Rights in monistic and dualistic systems It then discusses in detail the European Court's case law which confirms that the Convention, despite its special character as a human rights treaty, is indeed part of public international law. It concludes that the Convention and international law find themselves in a kind of interactive mutual relationship. checking and buildine on each other.

scholarly journals Judicial impartiality, decorative comparative law and the Human Rights Court: ECtHR, Alexandru Marian Iancu v. Romania, Application No. 60858/15

2020 ◽  
Vol 27 (3) ◽  
pp. 387-396
Author(s):  
Jaakko Husa
Keyword(s):  
Human Rights ◽  
Comparative Law ◽  
Case Note ◽  
Comparative Approach ◽  
Human Rights Law ◽  
European Court ◽  
Key Points ◽  
Rights Issues ◽  
Judicial Method

This case-note analyses the case of Alexandru Marian Iancu v. Romania, decided by the European Court of Human Rights in February 2020. The comment addresses two essential issues involved. The first issue concerns potential partiality of a judge who has been involved in overlapping proceedings. The second issue concerns the judicial method the Court uses in its reasoning. The note explains the background to the judgment, summarizing the facts leading to the judgment and the human rights issues before the Court. Then the proceedings before the Court and the Court’s decision are reviewed, before commenting on the judgment’s key points of significance for human rights law and use of comparative law as a part of human rights reasoning. The critical focus is on the comparative approach deployed by the Court.

The Principle of "Effectiveness" in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and Its Consistency with Public International Law – No Need for the Concept of Treaty Sui Generis

2010 ◽  
Vol 79 (2) ◽  
pp. 245-277 ◽  
Author(s):  
Daniel Rietiker
Keyword(s):  
Human Rights ◽  
International Law ◽  
Point Of View ◽  
European Convention ◽  
Vienna Convention ◽  
Four Dimensions ◽  
European Court ◽  
Different Dimensions ◽  
International Legal System ◽  
Teleological Interpretation

AbstractThe recent past has shown an ever-growing fragmentation of the international legal system where lawyers and judges are facing more and more the phenomenon of the same legal question being discussed in different fora. This is particularly the case in the field of human rights that entails the dispersal of responsibilities for interpretation of numerous instruments among various different judicial and quasi-judicial bodies, of both universal and regional nature. In order to secure coherence and legal certainty in the system, it is important to respect a set of principles and rules of general international law, in particular Articles 31–33 of the 1969 Vienna Convention of the Law of Treaties (VCLT). The first goal of this article is to analyse whether the Court applies the rules of the VCLT to the interpretation of the European Convention on Human Rights (ECHR). Secondly, assuming that the VCLT fully applies, it will be analysed whether Article 31(1) VCLT is flexible enough to allow nevertheless some leeway for the development of specificities, especially as a result of the particular nature of the ECHR. Thirdly, it will be shown that the Court has indeed developed a set of specific methods of interpretation, aiming to render the rights enshrined in the ECHR effective. From the author's point of view, they can all be regarded as sub-forms (or partial aspects) of the teleological interpretation. He distinguishes between four dimensions of the principle of "effectiveness".

scholarly journals Zakres wolności sumienia i wyznania

2011 ◽  
Vol 48 ◽  
pp. 211-226
Author(s):  
Anna Korzeniewska-Lasota
Keyword(s):  
Human Rights ◽  
Constitutional Court ◽  
Individual Freedom ◽  
Freedom Of Conscience ◽  
European Court ◽  
Individual Aspect ◽  
Polish Law ◽  
Normative Content

On the basis of the Polish law and court rulings, the author tries to establish in an individual aspect a normative content of individual freedom of conscience and religion (its scope). In her discussion she refers primarily to the rulings of the Constitutional Court and the European Court of Human Rights, which complement the normatively defined sphere of liberty in question.

scholarly journals On Taking DNA Reference Samples - Comment to the Judgment of the European Court of Human Rights of 14 April 2020 in the Case of Dragan Petrović v. Serbia, Application no. 75229/10

2021 ◽  
Vol 27 ◽  
pp. 423-429
Author(s):  
Violetta Kwiatkowska-Wójcikiewicz ◽  
Józef Wójcikiewicz
Keyword(s):  
Human Rights ◽  
Comparative Analysis ◽  
Medical Procedures ◽  
European Court ◽  
Polish Law ◽  
Reference Samples

The comment deals with the evaluation of (not only) Serbian law concerning taking body samples for DNA examinations. The authors share the arguments of the dissenting opinion from the judgment in question that the phrase “other medical procedures” was at that stage sufficient for such a procedure. A comparative analysis of the Polish law is also conducted.

scholarly journals Jawność postępowania sądowego w świetle Europejskiej konwencji praw człowieka

Radca Prawny ◽  
2021 ◽  
pp. 11-42
Author(s):  
Janusz Roszkiewicz
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Open Court ◽  
European Court ◽  
Protection Of Human Rights ◽  
Case Files ◽  
Court Proceedings ◽  
Polish Law ◽  
Definition Of ◽  
The Right

Openness of court proceedings in compliance with the European Convention on Human Rights The subject of this article is the right to open court proceedings as guaranteed in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. The most important elements of this right are: the right to participate in a court hearing, the right to access to the case files and the right to acquaint with the ruling. This right applies not only to the parties to the proceedings, but also – albeit to a lesser extent – to every citizen. The text discusses the findings of the doctrine and the European Court of Human Rights, at times criticizing them especially with regard to the too narrow definition of the obligation to publicly announce the judgment. In addition, the article analyzes the extent to which the Polish law encourages openness in civil, criminal and judicial-administrative procedures.

scholarly journals THE CONTENT OF THE ADVERSARIAL PRINCIPLE DEVELOPED BY THE EUROPEAN COURT OF HUMAN RIGHTS

2021 ◽  
Vol 2 ◽  
pp. 7-10
Author(s):  
Irina N. Chebotareva ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Point Of View ◽  
European Court

The article examines the adversarial principle from the point of view of the European Court of Human Rights, analyzes the case law, which formulates the position of the Court on the content of the adversarial process, and summarizes the opinions of scientists on this issue. The concept of adversarial process, developed by the European Court, is not identical to its understanding in national law and has an autonomous meaning.

scholarly journals Legitimacy and the Future of the European Court of Human Rights: Critical Perspectives from Academia and Practitioners

2011 ◽  
Vol 12 (10) ◽  
pp. 1707-1715 ◽  
Author(s):  
Kanstantsin Dzehtsiarou ◽  
Alan Greene
Keyword(s):  
Human Rights ◽  
German Law ◽  
European Convention ◽  
Special Edition ◽  
Civic Society ◽  
Substantive Content ◽  
European Court ◽  
University College ◽  
The Future ◽  
Research Students

In April 2011, University College Dublin (UCD) School of Law research students held their Fifth Annual Postgraduate Conference, the theme of which was “The Legacy and Future of the European Court of Human Rights (ECtHR). Evaluating Sixty Years of the European Human Rights Project.” The articles contained in this special edition of the German Law Journal reflect the efforts made at this conference by its participants. While the papers presented vary quite widely in their substantive content, they are connected by a recurring theme— that the ECtHR faces a crisis of legitimacy. A judgment is legitimate if it is persuasive to the civic society constituted by the European Convention of Human Rights (ECHR), and perceived as authoritative by the subjects affected by the ECtHR's decision. The judgments of the ECtHR are fiercely criticized and their legitimacy is repeatedly questioned by the Contracting Parties and media in particular, and by civic society in general. As it stands, the ECtHR is suffocating from the overwhelming number of applications lodged, and even the tiny percentage of those applications that are decided by it face “a barrage of hostile criticism,” as Michael O'Boyle outlines in his article. The ECtHR's future, to a major extent, depends on how this crisis is tackled.

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.

Interim Conclusions

2021 ◽  
pp. 80-90
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
Human Rights ◽  
International Organizations ◽  
Legal Framework ◽  
Point Of View ◽  
International Organization ◽  
The Other ◽  
Absolute Point ◽  
Member States ◽  
European Court ◽  
Argumentative Strategy

This chapter summarizes the previous findings and exposes the false dichotomies that led to the proliferation of the different conceptualizations. It shows how the four conceptualizations can be applied to a legal dispute concerning the responsibility of an international organization. In particular, it discusses the Al-Dulimi case before the European Court of Human Rights. The circumstances of the case prompt the adoption of one or the other conceptualization on the basis of the argumentative strategy. The analysis highlights the difficulties in providing a general legal framework to establish the responsibility of international organizations and/or of their member states. The chapter is divided into two subsections, focusing on the admissibility and the merits of the Al-Dulimi case. It concludes that the adoption of an international legal framework applicable to all international organizations is subject to the possibility to rebut limited perspectives and to adopt an ‘absolute point of view’.

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