scholarly journals Dopuszczalność orzeczenia przez sąd odwoławczy wyrokiem łącznym kary łącznej po raz pierwszy albo orzeczenia jej w zakresie innym niż orzekł sąd pierwszej instancji. Glosa do uchwały składu 7 sędziów Sądu Najwyższego z dnia 28 czerwca 2018 r. (I KZP 3/18, OSNKW 2018, nr 8, poz. 55)

2021 ◽  
Vol 30 (4) ◽  
pp. 655
Author(s):  
Dawid Marko

<p>The commentary raises the problem of the admissibility of the issuing cumulative penalty in cumulative judgement by appeal court for the first time or issuing that penalty within the different scope of punishment, from the perspective of the power to alter decisions of a court of the first instance, the principle of two-instance court proceedings, access to court and the right of defence. By discussing the essence of the constitutional and convention provisions, the author attempts to answer the question what the scope of the appeal court’s power is to alter cumulative judgement issued in the first instance, by concluding that neither Article 176 (1) of the Polish Constitution, nor Article 6 of the European Convention on Human Rights (ECHR) and Article 2 of Protocol no. 7 to the ECHR supplementing its content, as well as Article 14 (5) of the International Covenant on Civil and Political Rights in principle stand in the way of such an approach, which should be reflected in the process of interpretation of Article 437 (2) of the Code of Criminal Procedure. However, in the author’s opinion, doubts arise, from the perspective discussed above, if the appellate court were to take into account, when imposing the cumulative penalty, a unit judgement unknown, for various reasons, to the court of first instance, to which a special part of the considerations and critical remarks is devoted.</p>

2021 ◽  
Vol 30 (4) ◽  
pp. 187
Author(s):  
Małgorzata Wąsek-Wiaderek

<p>The purpose of this study is to present and evaluate the main changes to the appeal proceedings model introduced in the last few years to the Polish criminal proceedings in order to accelerate it and, thereby, satisfy the requirements of Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The article presents arguments supporting the thesis whereby these have weakened the right of the defendant to appeal against the judgement. Under the currently applicable regulations, it is permissible that an appellate court may impose a penalty for the first time which cannot be subject to an effective appellate review. Such a solution may raise doubts as to its compliance with Article 14 (5) of the International Covenant on Civil and Political Rights. The article also formulates a thesis whereby the newly introduced measure – a complaint against the cassatory judgement of the appellate court – contrary to preliminary fears, has not in fact “blown up” the system of appeal measures in the Polish criminal proceedings. At the same time, despite the relatively small scope of its use, it may contribute to strengthening the appeal – as opposed to the revisory – model of appellate proceedings and thus accelerating the criminal proceedings. This thesis is based on the research of all complaints brought to the Supreme Court in 2016–2019.</p>


Author(s):  
Yolanda Carmela Vaccaro Alexander

Los ciudadanos latinoamericanos que residen en España disfrutan de un marco legal diferenciado respecto de lo que atañe a los residentes procedentes de otras zonas en el marco de los lazos históricos y culturales que unen España y Latinoamérica reflejados en la legislación española. España mantiene suscritos convenios de Doble Nacionalidad con la mayor parte de países latinoamericanos. Y, desde 2009, ha suscrito tratados de reciprocidad en materia de sufragio en elecciones locales con diferentes países, la mayor parte de ellos latinoamericanos, tratados que permitieron que en las elecciones locales celebradas en España el 22 de mayo de 2011 los latinoamericanos concernidos pudieran ejercer el derecho al voto activo en España por primera vez sin necesidad de haberse acogido a los mencionados convenios de Doble Nacionalidad. La encuesta «Ciudadanía inmigrante», analizada en este artículo y realizada para la tesis doctoral «Derechos civiles y políticos de los residentes latinoamericanos en España. El derecho de sufragio», de la doctoranda autora de este artículo, da pautas sobre la percepción de los latinoamericanos residentes en España en torno a los derechos civiles y políticos y sobre su comportamiento respecto de los citados comicios de 2011.Latin American citizens residing in Spain enjoy a distinct legal framework compared to other foreign residents. That difference is based on the historical and cultural relations between Spain and Latin America. Spain has agreements on dual nationality with most Latin American countries. Starting in 2009 Spain has signed several reciprocity agreements about the right to vote in local elections with several countries, most of them in Latin America. On May 22, 2011 many Latin American citizens residing in Spain could exercise their right to vote in the Spanish local elections for the first time without having dual citizenship. The «Immigrant Citizenship» survey, analyzed in this article and developed for the doctoral thesis «Civil and Political Rights of Latin American Residents in Spain. The right to vote», provides guidance on the perception of Latin American living in Spain about civil and political rights and their behavior with respect to said elections.


2018 ◽  
Vol 7 (2) ◽  
pp. 199-224 ◽  
Author(s):  
Andrea Broderick

The traditional dichotomy of rights between civil and political rights, on the one hand, and economic, social and cultural rights, on the other hand, has been increasingly eroded in scholarly and judicial discourse. The interdependence of the two sets of rights is a fundamental tenet of international human rights law. Nowhere is this interdependence more evident than in the context of the United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention). This article examines the indivisibility and interdependence of rights in the CRPD and, specifically, the positive obligations imposed on States Parties to the UN Convention, in particular the reasonable accommodation duty. The aim of the paper is to analyse, from a disability perspective, the approach adopted by the European Court of Human Rights (ECtHR or ‘Strasbourg Court’) in developing the social dimension of certain civil and political rights in the European Convention on Human Rights (ECHR), namely Articles 2 and 3 (on the right to life and the prohibition on torture, inhuman and degrading treatment, respectively), Article 8 (on the right to private and family life) and Article 14 ECHR (on non-discrimination). Ultimately, this paper examines the influence of the CRPD on the interpretation by the Strasbourg Court of the rights of persons with disabilities under the ECHR. It argues that, while the Court is building some bridges to the CRPD, the incremental and often fragmented approach adopted by the Court could be moulded into a more principled approach, guided by the CRPD.


SEEU Review ◽  
2015 ◽  
Vol 11 (1) ◽  
pp. 69-78
Author(s):  
Arta Bilalli

Abstract Interrogations are a very specific component of any criminal investigation. The answers gained through interrogative process provides information that are considered as direct evidences. In contemporary criminal procedure, the court is not absolved from gaining other evidences, even in cases when the defendant confesses his/her guiltiness. This is a mechanism for excluding the inquisitorial approach for extracting compulsory confessions. The modern procedure uses a variety of mechanisms to guarantee that the defendant will not be compelled to confess guilt. Those mechanisms are part of most important international conventions as International Convention for Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, the Statutes of International Tribunals (i.e. International Tribunal for ex-Yugoslavia, International Tribunal for Rwanda) and part of different constitutional and legal acts of modern states. A very interesting “highlight” remains the right to silence which guarantees that the defendant might remain silent and it will not be interpreted against him. The defendant, even in cases with direct evidences, can remain silent and cannot be forced to answer given questions. Another “highlight” is that one that appears from the privilege against self-incrimination that allows the defendant to not answer a question, if by answering, he/she may confess guilt or incriminate him/herself. How deep is this privilege? Are there, maybe questions, that he/she are obliged to answer (i.e. disclosure of identity?) The article will focus in interrogations and the right to silence by most important international acts and domestic acts of different countries (USA, France, Germany, Albania, Kosovo, Macedonia) and upcoming specifics in the relation interrogations vs. remaining silent.


2019 ◽  
Vol 1 (2) ◽  
pp. 263-282
Author(s):  
Louise Reyntjens

In response to Islamic-inspired terrorism and the growing trend of foreign fighters, European governments are increasingly relying on citizenship deprivation as a security tool. This paper will focus on the question of how the fundamental rights of individuals deprived of their citizenship are affected and which protection is offered for them by the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’). In many countries, these new and broader deprivation powers were left unaccompanied by stronger (procedural) safeguards that protect the human rights they might affect. Unlike the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights, the ECHR does not provide for an explicit right to citizenship. The question therefore rises what protection, if any, is offered by the ECHRsystem against citizenship deprivation and for the right to citizenship. Through a case study of the Belgian measure of citizenship deprivation, the (implicit) protection provided by the Convention-system is demonstrated.


KPGT_dlutz_1 ◽  
2018 ◽  
Vol 32 (1) ◽  
pp. 27-48
Author(s):  
Vivianny Galvão

O direito estatal à suspensão das obrigações do Pacto Internacional de Direitos Civis e Políticos Resumo: Este artigo dedica-se à análise do artigo 4.º do Pacto Internacional de Direitos Civis e Políticos de 1966, com especial atenção à interpretação do direito estatal à suspensão das obrigações internacionais. Cabe, atualmente, ao Conselho de Direitos Humanos das Nações Unidas a tarefa de investigar os casos em que esta suspensão acontece, bem como fiscalizar os motivos da suspensão e estabelecer os parâmetros considerados legítimos. Os direitos humanos trazidos pelo Pacto Internacional sobre os Direitos Civis e Políticos, além dos demais tratados em matéria de direitos humanos, limitam o direito estatal de suspensão. As medidas aplicadas pelo Estado que evocam o direito de derrogação precisam ser consideradas estritamente necessárias e sua adoção, fundamentada e temporária; caso contrário, o Estado derrogador será considerado violador das obrigações assumidas na ordem internacional. Somente o instrumento da denúncia é capaz de desobrigar o Estado dos acordos firmados e, ainda assim, essa desvinculação não alcançariam em tese certos costumes internacionais nem, tampouco, as normas de ius cogens ou obrigações erga omnes. Infere-se que a lógica do artigo 4.º, também presente na Convenção Europeia de Direitos Humanos, está norteada pela preservação do Estado Democrático de Direito conforme se extraiu da criação da categoria dos direitos irrevogáveis. Além disso, mesmo diante da possibilidade de suspensão parcial e temporária dos direitos, o Conselho de Direitos Humanos não deixa de fiscalizar a atuação do Estado, pelo contrário, esse Conselho passa a emitir recomendações mais contundentes contra o Estado. Palavras-chave: Direito de suspensão. Direitos humanos. Direito Internacional. Pacto Internacional de Direitos Civis e Políticos. _____ The state right to the suspension of the obligations of the international covenant on civil a: nd political right Abstract: This article is devoted to the analysis of the article 4 of the International Covenant on Civil and Political Rights (ICCPR), 1966, with special attention to the interpretation of state law to the suspension of international obligations. The UN Human Rights Council is now responsible for investigating the cases in which this suspension takes place, as well as monitoring the reasons for the suspension and establishing the parameters considered legitimate. The human rights brought by the ICCPR, in addition to the other human rights treaties, limit the State's right to suspend. The measures applied by the State that evoke the right of derogation must be considered strictly necessary and the adoption, substantiated and temporary. Otherwise, the derogating State shall be considered as violating the obligations assumed in the international order. Only the instrument of denunciation can release the State from the agreements reached and, even so, that untying would not achieve in theory certain international customs nor the norms of jus cogens or obligations erga omnes. It is inferred that the logic of Article 4, which is also present in the European Convention on Human Rights, is guided by the preservation of the Democratic Rule of Law as derived from the creation of the category of irrevocable rights. Moreover, even in the face of the possibility of partial and temporary suspension of rights, the Human Rights Council does not cease to supervise the actions of the State; on the contrary, this Council is issuing more forceful recommendations against the State. Keywords: Human rights. International Covenant on Civil and Political Rights. International Law. Right of suspension.


Author(s):  
Jamil Ddamulira Mujuzi

Abstract Article 14(6) of the International Covenant on Civil and Political Rights (iccpr) provides for the right to compensation for wrongful conviction or miscarriage of justice. In Hong Kong, there are two compensation schemes for people who have been wrongfully convicted – the statutory scheme under Article 11(5) of the Bill of Rights Ordinance and the ex gratia scheme (also applicable to wrongful imprisonment). Although there are cases in which Hong Kong courts have dealt with the right to compensation under the ex gratia scheme, it was only in March 2020, in A v Secretary for Justice and Another, that the High Court, for the first time, dealt with a case on the right to compensation under Article 11(5). In this article, the author discusses the right to compensation for wrongful conviction in Hong Kong generally and in particular under Article 11(5) of the Bill of Rights Ordinance. The author deals with the case of A v Secretary for Justice and Another and illustrates how the High Court’s interpretation of Article 11(5) of the Bill of Rights Ordinance is likely to impact on the right to compensation for wrongful conviction in Hong Kong in the future.


2021 ◽  
Vol 1 (91) ◽  
pp. 23-29
Author(s):  
Jelena Girfanova

In the paper “The prohibition of torture and other cruel, inhuman or degrading punishment in closed Institutions” the author has examined the obxervasnce of  persons’  in detention,  custody or imprisonment human rights in the European regional acts and national instruments as well as the provision of health care for detainees and convicted persons alike.All basic human rights’ documents, namely: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the United Nations and the European Convention for the Protection of Human Rights and Fundamental Freedoms state that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, degrading his or her human dignity”.  All persons who have been punished, regardless of the crimes for which they were convicted, have the right to humane treatment and respect for their personality. No actions of people, whatever they may be, justify the inhuman treatment of them or the humiliation of their personality.  


1989 ◽  
Vol 29 (270) ◽  
pp. 196-216 ◽  
Author(s):  
Hernán Salinas Burgos

It is generally acknowledged by the international community that the taking of hostages is one of the most vile and reprehensible of acts. This crime violates fundamental individual rights—the right to life, to liberty and to security—that are protected by binding legal instruments such as the 1966 International Covenant on Civil and Political Rights on the worldwide level, and the 1969 American Convention on Human Rights and the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms on the regional level. The United Nations General Assembly has stated that the taking of hostages is an act which places innocent human lives in danger and violates human dignity.


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