scholarly journals Who is Entitled to the Right to Respect for Family Life Under the European Union Law?

Teisė ◽  
2019 ◽  
Vol 110 ◽  
pp. 24-45
Author(s):  
Ingrida Danėlienė
Keyword(s):  
European Union ◽  
Human Rights ◽  
Family Life ◽  
National Level ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
European Union Law ◽  
The Republic ◽  
The Right

[full article, abstract in English; abstract in Lithuanian] The article investigates the right to respect for family life, established by Article 7 of the Charter of Fundamental Rights of the European Union, as applied and interpreted in conjunction with the right to marry and the right to found a family, laid down in Article 9 of the Charter. The standard of protection set by European Union law regarding these rights is identified by taking into account the standard of protection of the relevant rights established by the European Convention on Human Rights and the established case law of the European Court of Human Rights. Topical issues relating to the consolidation of these individual rights at the national level in the Republic of Lithuania are also addressed in the article. In doing so, an emphasis is laid on the content of the concepts of “family” and “family life” under supranational and national law.

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 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.

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.

Human rights and the rule of law in judicial cooperation in criminal matters under the EU–UK Trade and Cooperation Agreement

2021 ◽  
pp. 203228442199593
Author(s):  
Wolfgang Schomburg ◽  
Anna Oehmichen ◽  
Katrin Kayß
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Cooperation Agreement ◽  
Judicial Cooperation ◽  
Human Rights Protection ◽  
Criminal Matters ◽  
The Eu

As human rights have increasingly gained importance at the European Union level, this article examines the remaining scope of human rights protection under the EU–UK Trade and Cooperation Agreement. While some international human rights instruments remain applicable, the Charter of Fundamental Rights of the European Union did not become part of the Trade and Cooperation Agreement (TCA). The consequences, especially the inapplicability of the internationalised ne bis in idem principle, are analysed. Furthermore, the conditionality of the TCA in general as well as the specific conditionality for judicial cooperation in criminal matters are discussed. In this context, the risk that cooperation may cease at any moment if any Member State or the UK leave the European Convention of Human Rights is highlighted. Lastly, the authors raise the problem of the lack of judicial review, as the Court of Justice of the European Union is no longer competent.

Professional secrecy and legal professional privilege

2018 ◽  
Vol 25 (2) ◽  
pp. 188-207 ◽  
Author(s):  
Jorg Sladič
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Family Life ◽  
Common Law ◽  
Civil Law ◽  
Fundamental Rights ◽  
The Other ◽  
European Convention ◽  
Legal Professional ◽  
The Right

Legal privilege and professional secrecy of attorneys relate to the right to a fair trial (Article 6 European Convention on Human Rights (ECHR)) as well as to the right to respect for private and family life (Article 8 ECHR). The reason for protecting the lawyer via fundamental rights is the protection of fundamental rights of the lawyer’s clients. All legal orders apply legal privileges and professional secrecy; however, the contents of such are not identical. Traditionally there is an important difference between common and civil law. The professional secrecy of an attorney in civil law jurisdictions is his right and at the same time his obligation based on his membership of the Bar (that is his legal profession). In common law legal privilege comprises the contents of documents issued by an attorney to the client. Professional secrecy of attorneys in civil law jurisdictions applies solely to independent lawyers; in-house lawyers are usually not allowed to benefit from rules on professional secrecy (exceptions in the Netherlands and Belgium). On the other hand, common law jurisdictions apply legal professional privilege, recognized also to in-house lawyers. Slovenian law follows the traditional civil law concept of professional secrecy and sets a limited privilege to in-house lawyers. The article then discusses Slovenian law of civil procedure and compares the position of professional secrecy in lawsuits before State’s courts and in arbitration.

The Right to Healthcare in the Common European Asylum System

2018 ◽  
Vol 20 (2) ◽  
pp. 135-156
Author(s):  
Marco Inglese
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
European Convention ◽  
Undocumented Migrants ◽  
The European Union ◽  
Common European Asylum System ◽  
The Common ◽  
Interpretative Approach ◽  
The Right

Abstract This article seeks to ascertain the role of healthcare in the Common European Asylum System (CEAS). The article is structured as follows. First, it outlines the international conceptualisation of healthcare in the International Covenant of Economic, Social and Cultural Rights (ICESCR) and the European Social Charter (ESC) before delving into the European Convention on Human Rights (ECHR). Second, focusing on the European Union (EU), it analyses the role of Article 35 of the Charter of Fundamental Rights of the European Union (the Charter) in order to verify its impact on the development of the CEAS. Third, and in conclusion, it will argue that the identification of the role of healthcare in the CEAS should be understood in light of the Charter’s scope of application. This interpretative approach will be beneficial for asylum seekers and undocumented migrants, as well as for the Member States (MSs).

scholarly journals Case of Bistieva and Others v. Poland

2020 ◽  
Vol 8 (2) ◽  
pp. 129-139
Author(s):  
Anna Magdalena Kosińska
Keyword(s):  
Family Life ◽  
European Convention ◽  
The European Union ◽  
Council Of Europe ◽  
Irregular Migrants ◽  
Alternative Measures ◽  
Minor Children ◽  
The Republic ◽  
The Right ◽  
Article 5

The present commentary concerns the claims alleging a violation under Article 5 paragraph 1 (the right to liberty and security of a person) and paragraph 4 (the right to take proceedings to determine the lawfulness of the detention) of the European Convention on Human Rights and Article 8 (the right to respect for private and family life) ECHR by using detention by the Republic of Poland for the period of almost 6 months with regard to a family of third-country nationals. The applicant in the case was a national of Russia, Zita Bistieva and her three minor children. The judgement under discussion is significant from the perspective of strengthening the guarantees for the protection of the rights of irregular migrants in the system of both the Council of Europe and the European Union, on the grounds of the concept of equivalent protection adopted in EU primary law. The ruling in question also refers to the fact that the Member States do not sufficiently resort to alternative measures with regard to the detention of foreign nationals.

scholarly journals Refl ections on the Principle of Equal Treatment in EU Law and the Jurisprudence of the Court of Justice of the European Union and the European Convention on Human Rights

2020 ◽  
Vol 9 (1) ◽  
pp. 5-23
Author(s):  
Marija Daka
Keyword(s):  
European Union ◽  
Human Rights ◽  
Equal Treatment ◽  
European Convention ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Complex Approach

The paper presents some of the most relevant aspects of European nondiscrimination law established th rough European Union law and the European Convention on Human Rights, looking also at the evolution of the norms and milestones of case-law on equal treatment within the two systems. The paper gives an overview of the non-discrimination concept as interpreted by the Court of Justice of the European Union and by the European Court of Human Rights. We examine the similar elements but also give insight into conceptual differences between the two human rights regimes when dealing with equal treatment. The differences mainly stem from the more complex approach taken by EU law although, based on analysed norms, cases, and provisions, the aspects of equal treatment in EU law are largely consistent with the practice of the ECtHR. Lastly, the paper briefl y places the European non-discrimination law within the multi-layered human rights system, giving some food for thought for the future potential this concept brings.

scholarly journals eGovernment as an element of the right to good administration

2018 ◽  
Vol 331 ◽  
pp. 29-39
Author(s):  
Justyna Matusiak ◽  
Marcin Princ
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
The European Union ◽  
European Union Law ◽  
Reasonable Time ◽  
Charter Of Fundamental Rights ◽  
Right To Good Administration ◽  
Administrative Proceedings ◽  
The Right ◽  
Procedural Rights

The right to good administration constitutes an established principle of European Union law, which includes the procedural rights of stakeholders in administrative proceedings, the result of which may affect their interests. Article 41 of the European Union Charter of Fundamental Rights states that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. When it comes to reasonable time of handling the case one can ask if eGovernment solutions are the guarantee of such a right. eGovernment understood as the use of all kinds of electronic means of communication, in particular, however, the Internet, improves services provided by the state to its citizens. The usage of IT technology in public administration allows it to perform its activities in a more efficient way. This improvement applies not only to the communication between parties but also to the quality of citizens’ life. To sum up, one can ask the question if the European right to good administration can be understood as the right to eGovernment solutions and if so, to what extent. Which services and technical solutions should be guaranteed as ones ensuring challenges of good administration?

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