scholarly journals The Right to Non-Discrimination: Interpretive Practice of the Ecthr

2021 ◽  
Vol 7 (2) ◽  
pp. 24-38
Author(s):  
Svitlana KARVATSKA ◽  
◽  
Ivan TORONCHUK ◽  
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Legal Analysis ◽  
The Rule Of Law ◽  
Human Rights Protection ◽  
Political Sovereignty ◽  
Democratic State ◽  
European Court ◽  
Indirect Discrimination ◽  
The Right

The article conducts a legal analysis of the case-law of the European Court of Human Rights on the protection of the right to non-discrimination, which is a fundamental and general principle concerning human rights protection. During the period of functioning of the ECtHR, the Court has processed a huge amount of cases concerning violation of the right to equality and the inextricably linked principle of non-discrimination under Art. 14 and Art. 1 of Protocol № 12 of the ECHR. The evolution of the interpretation of the ECtHR shows the transformation of approaches to the interpretation of the right to non-discrimination. The court gradually began to expand the range of possible violations, from outright prohibition to the detection and the statement of indirect discrimination, and its decisions contributed to the normative formulations of the principle of non-discrimination in national systems and its gradual transformation from a purely declarative to a coherent effective mechanism of protection of discrimination victims and a mechanism of the approval of democracy, human dignity. The rule of law forms the central principle of interpretation of the Convention. A consensual investigation allows the ECHR to tie its decisions to the pace of change in national law, recognizing the political sovereignty of the respondent States and, at the same time, legitimizing its own decisions against them, adhering to the principles of a democratic state governed by the rule of law. The purpose of this article is to analyze peculiarities of the ECtHR's interpretive practice in cases concerning the right to non-discrimination.

scholarly journals PEROLEHAN KEMBALI STATUS KEWARGANEGARAAN YANG HILANG BERDASARKAN UNDANG-UNDANG KEWARGANEGARAAN

Yuridika ◽  
2014 ◽  
Vol 29 (3) ◽  
Author(s):  
Emmy Wulandari
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Fundamental Rights ◽  
Reciprocal Relations ◽  
Citizenship Status ◽  
Administrative Practices ◽  
The Rule Of Law ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Democratic State

In the democratic state and the rule of law, human rights protection is an essential principle. The fact that citizenship status is fundamental rights put consequences that the states and citizen has reciprocal relations which means states needs their citizens as well as citizens need states. States should ensure that no one in the states is left stateless. In order to avoid stateless, the State needs to be aware and anticipative which is reflected through legislation and administrative practices. In the Heidy Mariska case, the administrates neglected article 17c Law No. 62 Year 1958 on Citizenship which then results in diffusion of Heidy Mariska citizenship status so that she was stateless in the country she was born in. This paper analyse the implementation of the law on citizenship whether or not it reflects protection to citizenship status and anticipation of statelessness. Keywords : citizenship, human rights, recovery.

scholarly journals Police Powers and Article 5 ECHR: Time for a New Approach to the Interpretation of the Right to Liberty

2020 ◽  
Vol 41 (3) ◽  
pp. 331-356
Author(s):  
Richard A. Edwards
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
New Approach ◽  
The Rule Of Law ◽  
Police Powers ◽  
European Court ◽  
New Interpretation ◽  
The Right ◽  
Article 5

Abstract This paper discusses the approach of British and European Courts to the interpretation and application of the Article 5 ECHR right to liberty when faced with police powers. The paper argues that the long-standing approach of the European Court of Human Rights in Guzzardi v Italy [1980] ECHR 7367/76 is wrong and should be replaced with a new interpretation based on coercion. The paper goes on to argue that a new approach would allow the courts to effectively protect both Convention rights and the rule of law.

Means of Review

2021 ◽  
pp. 198-218
Author(s):  
European Law
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Rule Of Law ◽  
Civil Procedure ◽  
European Convention ◽  
Appellate Court ◽  
The Rule Of Law ◽  
European Court ◽  
The Right ◽  
Proportionality Principle

This chapter examines appeals and other types of recourse, including extraordinary motion for review. The ability to appeal from or otherwise challenge judgments is a well-established feature amongst procedural systems, albeit it is, in principle, not recognised by the European Court of Human Rights as falling within the ambit of the right to fair trial under Article 6 of the European Convention on Human Rights. The present European Rules of Civil Procedure adopt the approach that there is a right to appeal, albeit one that may only be exercised with the permission of the appellate court according to special provisions with respect to access and scope. In this way the appellate process, and the right to appeal, provides an effective balance between the principles of finality in litigation, accuracy in decision-making, expedition, and proportionality. Principle 27 of the ALI/UNIDROIT Principles addresses the necessity of keeping the right balance between diverging aspects of the rule of law as follows: ‘(2) The scope of appellate review should ordinarily be limited to claims and defenses addressed in first-instance proceeding. (3) The appellate court may in the interest of justice consider new facts and evidence’.

scholarly journals Principle of the Rule of Law in the Case-law of the European Court of Human Rights

1970 ◽  
pp. 373-379
Author(s):  
Tetiana Tsuvina
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Fair Trial ◽  
Court Decisions ◽  
Legal Certainty ◽  
Criminal Proceedings ◽  
The Rule Of Law ◽  
European Court ◽  
The Law ◽  
The Right

The article is devoted to the interpretation of the principle of rule of law in the practice of the European Court of Human Rights. The concept of the rule of law, along with democracy and human rights makes up the three pillars of the Council of Europe and is endorsed in the Preamble to the ECHR. The Preamble to the ECHR states that the governments of European countries are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law. The rights most obviously connected to the rule of law include: the right of access to justice, the right to a fair trial, the legal principle that measures which impose a burden should not have retroactive effects the right to an effective remedy, anyone accused of a crime is presumed innocent until proved guilty etc. The author concludes that there is an expediency of grouping separate requirements of the rule of law in the practice of the ECtHR around concepts, which are concluded to be elements of the rule of law in a democratic society. Such elements of the rule of law in the practice of the ECHR are recognized as legality, legal certainty, fairness of a trial and the priority of human rights. Legality supposes that authorities need a legal basis for measures which interfere with a right of an individual, as well as quality requirement for the law such as accessibility, foreseeability and no arbitrariness. Legal certainty encompasses foreseeability in application of the law; non-retroactivity of legislation; the principle of res judicata; mandatory execution of court decisions and consistency of judicial practice. Fair trial requirements devoted into two groups: general requirements (access to court, independent and impartial tribunal, execution of court decisions etc.) and requirements for criminal proceedings (presumption of innocence, principle nullum crimen sine lege etc.) It is noted that the legality, legal certainty, fairness of a trial are formal requirements of the rule of law, thus the priority of human rights is a substantive (material) requirement of the rule of law. The aforementioned testifies to the natural-legal approach that the ECHR is guided by in interpreting the rule of law in its practice, understanding it primarily as the rule of human rights.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

scholarly journals On the rule of law and the quality of the law: reflections of the constitutional-turned-international judge

2019 ◽  
pp. 131
Author(s):  
Egidijus Küris
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
European Convention ◽  
Constitutional Court ◽  
Legal Tradition ◽  
The Rule Of Law ◽  
Derechos Humanos ◽  
European Court ◽  
The Law

Western legal tradition gave the birth to the concept of the rule of law. Legal theory and constitutional justice significantly contributed to the crystallisation of its standards and to moving into the direction of the common concept of the rule of law. The European Court of Human Rights uses this concept as an interpretative tool, the extension of which is the quality of the law doctrine, which encompasses concrete requirements for the law under examination in this Court, such as prospectivity of law, its foreseeability, clarity etc. The author of the article, former judge of the Lithuanian Constitutional Court and currently the judge of the European Court of Human Rights, examines how the latter court has gradually intensified (not always consistently) its reliance on the rule of law as a general principle, inherent in all the Articles of the European Convention on Human Rights, to the extent that in some of its judgments it concentrates not anymore on the factual situation of an individual applicant, but, first and foremost, on the examination of the quality of the law. The trend is that, having found the quality of the applicable law to be insufficient, the Court considers that the mere existence of contested legislation amounts to an unjustifiable interference into a respective right and finds a violation of respective provisions of the Convention. This is an indication of the Court’s progressing self-approximation to constitutional courts, which are called to exercise abstract norm-control.La tradición occidental alumbró la noción del Estado de Derecho. La teoría del Derecho y la Justicia Constitucional han contribuido decisivamente a la cristalización de sus estándares, ayudando a conformar un acervo común en torno al mismo. El Tribunal Europeo de Derechos Humanos emplea la noción de Estado de Derecho como una herramienta interpretativa, fundamentalmente centrada en la doctrina de la calidad de la ley, que implica requisitos concretos que exige el Tribunal tales como la claridad, la previsibilidad, y la certeza en la redacción y aplicación de la norma. El autor, en la actualidad Juez del Tribunal Europeo de Derechos Humanos y anterior Magistrado del Tribunal Constitucional de Lituania, examina cómo el primero ha intensificado gradualmente (no siempre de forma igual de consistente) su confianza en el Estado de Derecho como principio general, inherente a todos los preceptos que forman el Convenio Europeo de Derechos Humanos, hasta el punto de que en algunas de sus resoluciones se concentra no tanto en la situación de hecho del demandante individual sino, sobre todo y ante todo, en el examen de esa calidad de la ley. La tendencia del Tribunal es a considerar que, si observa que la ley no goza de calidad suficiente, la mera existencia de la legislación discutida supone una interferencia injustificable dentro del derecho en cuestión y declara la violación del precepto correspondiente del Convenio. Esto implica el acercamiento progresivo del Tribunal Europeo de Derechos Humanos a los Tribunales Constitucionales, quienes tienen encargado el control en abstracto de la norma legal.

scholarly journals Legal doctrine, legal science and protection of human rights (efficiency ratio)

2020 ◽  
Vol 11 (11) ◽  
pp. 11-15
Author(s):  
Onischenko N.
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Rule Of Law ◽  
Legal Doctrine ◽  
The Rule Of Law ◽  
Current State ◽  
Legal Science ◽  
Democratic State ◽  
Protection Of Human Rights ◽  
Spatio Temporal

The current state of Ukrainian society requires the scientific community to find answers to the general social impulses needed for reform strategies: from unconstructive attempts to replace the state with civil society to efforts aimed at their balanced interaction. It is the principle of social and political balance in the relationship between the rule of law and civil society should be the basis for correcting and correcting the unstable economic situation, overcoming acute social conflicts, establishing the rule of law, building a democratic state. It should be noted that it is quite clear that sometimes the implementation of a right requires at least not one, but clearly several opportunities, such as: economic, educational, social, gender, etc., existing in the relevant spatio-temporal continuum. Moreover, there is an indisputable thesis that there are no secondary or non-first-class or type of human rights, so every unrealized, not realized in time or not fully realized right, without a doubt, is based on the lack of, first of all, the corresponding real opportunities. It is also clear that the implementation of a certain right depends, for example, on the relevant regulations. we note that state-building processes, their dynamics, progressive trends depend on many factors. In this context, the interconnectedness of the development of a democratic, legal, social, European state and the formation of a mature, active, civil society was considered. Keywords: legal science, legal doctrine, human rights, rights and opportunities, legal development.

scholarly journals Evaluating ‘Life Steeped in Power’: Non-Domination, the Rule of Law and Spatial Restrictions for Irregular Migrants

2020 ◽  
Author(s):  
Lieneke Slingenberg
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Practical Relevance ◽  
Human Rights Law ◽  
The Rule Of Law ◽  
Irregular Migrants ◽  
Normative Framework ◽  
Protection Of Human Rights ◽  
State Coercion ◽  
The Right

Abstract Irregular migrants in Europe are increasingly subjected to state coercion, surveillance and spatial restrictions, such as containment, dispersal and forced transfers. Lawyers usually evaluate such practices in the light of human rights law, which only provides limited protection. For this reason, I propose an alternative normative framework to evaluate and assess coercive state practices towards irregular migrants: the concept of freedom as non-domination. In this article, I conceptualize non-domination from a rule of law perspective. To this end, I start from Lovett’s procedural account of arbitrariness; and complement this with Benton’s focus on unaccountable power and Palombella’s argument for ‘duality of law’. In the second part of this article, I apply this normative framework to coercive practices in shelters for irregular migrants in the Netherlands. This allows me to demonstrate the practical relevance and consequences of the theory. It discloses how the protection of freedom as non-domination, conceptualized from a rule of law perspective, sets more demanding criteria for the (courts of) law than the protection of human rights. At the same time, it does not require non-interference or elaborate positive obligations from the state. For irregular migrants, who do not have the right to reside in the territory, but who are entirely under the control of state power, non-domination as conceptualized in this paper provides, in my view, a necessary framework of review that ensures a kind of protection that is currently lacking.

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