scholarly journals The Right to Asylum and the Principle of Non- Refoulement Under the European Convention on Human Rights

2017 ◽  
Vol 13 (28) ◽  
pp. 108 ◽  
Author(s):  
Jelena Ristik
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
European Convention ◽  
Dual Systems ◽  
Eu Member States ◽  
Law And Policy ◽  
European Court ◽  
Asylum Law ◽  
Complementary Role ◽  
The Right

The European Convention on Human Rights does not contain any explicit reference to the right to asylum. However, the European Court of Human Rights has provided protection of asylum seekers mainly through interpretation of Article 3 of the Convention. Moreover, even if there is no specific mention of non-refoulement in this Article, the Court has interpreted it to include the prohibition of refoulement. Today, the ECHR is one of the most important juridical instruments for protection of asylum seekers throughout Europe. The main reason for this is that the principle of nonrefoulement under the Convention extends to inhuman and degrading behavior. This paper has placed its focus on the applicability of the ECHR to asylum cases, particularly the development and treatment of the principle of non-refoulement, as a form of complementary protection to those seeking asylum. This will be elaborated mainly through analysis of the jurisprudence of the ECtHR. It will be shown that the principle of non-refoulement under the ECHR, as a barrier to removal, plays a significant complementary role regarding the protection of asylum seekers. It will also be shown that the jurisprudence of the ECtHR has important relevance to EU asylum law and policy. In this sense, a comparison between EU law and ECHR protection standards for asylum seekers will be elaborated as well. Finally, it will be concluded that EU Member States are faced with dual systems providing protection to asylum seekers, and a possible solution will be suggested in order to overcome this situation.

Some decisions of the European Court of Human Rights and the Court of the European Union con cerning the right of asylum

10.12737/5251 ◽  
2014 ◽  
Vol 2 (1) ◽  
pp. 68-74
Author(s):  
Габриэлла Белова ◽  
Gabriela Belova ◽  
Мария Хаджипетрова-Лачова ◽  
Maria Hadzhipetrova-Lachova
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
The European Union ◽  
Protective Mechanisms ◽  
Eu Member States ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Right ◽  
The Eu

The authors analyze certain cases considered in recent years by the European Court of Human Rights and the Court of European Union in Luxembourg and associated with providing of asylum to the third country nationals. In individual EU member states there are huge differences in the procedures and protective mechanisms for asylum seekers in their access to work, as well as in the use of mechanism of forced detention. Due to accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms, the EU should comply the standards set by the Council of Europe. The authors analyze the new approach of the Strasbourg Court in decision MSS v. Belgium and Greece unlike other "Dublin" cases. They also consider certain new judgements of the Court of European Union in Luxembourg, some of which were accepted in order of urgent prejudicial production.

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.

Introductory Note

2018 ◽  
Author(s):  
Guido Raimondi
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
Freedom Of Expression ◽  
European Convention ◽  
European Court ◽  
European Public ◽  
Introductory Note ◽  
Un Security Council ◽  
The Right ◽  
The Eu

This article comments on four important judgments given by the European Court of Human Rights in 2016. Al-Dulimi v. Switzerland addresses the issue of how, in the context of sanctions regimes created by the UN Security Council, European states should reconcile their obligations under the UN Charter with their obligations under the European Convention on Human Rights to respect the fundamentals of European public order. Baka v. Hungary concerns the separation of powers and judicial independence, in particular the need for procedural safeguards to protect judges against unjustified removal from office and to protect their legitimate exercise of freedom of expression. Magyar Helsinki Bizottság v. Hungary is a judgment on the interpretation of the Convention, featuring a review of the “living instrument” approach. Avotiņš v. Latvia addresses the principle of mutual trust within the EU legal order and the right to a fair trial under Article 6 of the Convention.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

Lachiri v Belgium and Bans on Wearing Islamic Dress in the Courtroom: An Emerging Trend

2019 ◽  
Vol 21 (1) ◽  
pp. 48-53
Author(s):  
Kaushik Paul
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Public Spaces ◽  
Religious Liberty ◽  
Recent Case ◽  
European Convention ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Islamic Dress

In recent years, the wearing of Islamic dress in public spaces and elsewhere has generated widespread controversy all over Europe. The wearing of the hijab and other Islamic veils has been the subject of adjudication before the European Court of Human Rights (ECtHR) on many occasions. The most recent case before the ECtHR as to the prohibition on wearing the hijab is Lachiri v Belgium. In this case, the ECtHR held that a prohibition on wearing the hijab in the courtroom constitutes an infringement of Article 9 of the European Convention on Human Rights (ECHR), which guarantees the right to freedom of religion or belief. From the perspective of religious freedom, the ruling of the Strasbourg Court in Lachiri is very significant for many reasons. The purpose of this comment is critically to analyse the ECtHR's decision in Lachiri from the standpoint of religious liberty.

Access to Court v State Immunity

2003 ◽  
Vol 52 (2) ◽  
pp. 297-332 ◽  
Author(s):  
Emmanuel Voyiakis
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
State Immunity ◽  
European Court ◽  
The Law ◽  
The Right

This comment discusses three recent judgments of the European Court of Human Rights in the cases of McElhinney v Ireland, Al-Adsani v UK, and Fogarty v UK. All three applications concerned the dismissal by the courts of the respondent States of claims against a third State on the ground of that State's immunity from suit. They thus raised important questions about the relation the European Convention on Human Rights (the Convention)—especially the right to a fair trial and access to court enshrined in Arcticle 6(1)—and the law of State immunity.

scholarly journals Speed Traps and the Right of Silence

2011 ◽  
Vol 9 (1) ◽  
pp. 165-176 ◽  
Author(s):  
Dennis Kurzon
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Regulatory Regime ◽  
Human Right ◽  
Written Texts ◽  
European Court ◽  
Statutory Requirement ◽  
The Right ◽  
Right Of Silence

In two English cases which reached the European Court of Human Rights in the mid-2000s, it was argued that the statutory requirement on the part of a motorist who has been caught speeding to give the police information concerning the identity of the driver of the car at the time of the offence is a violation of the right of silence by which a person should not be put into a position that s/he incriminates him/herself. The right of silence is one of the conventional interpretations of Article 6 of the European Convention on Human Rights. As well as a study on the right of silence with regard to written texts, this paper also investigates the two cases in terms of icons and indices: a text may be indexical of a basic human right, and then may become an icon of that right. The European Court of Human Rights considers the particular section of the relevant statute as an icon of the "regulatory regime".

Bulgarian Military Courts and the Right to a Fair Trial

De Jure ◽  
2020 ◽  
Vol 11 (2) ◽  
Author(s):  
Ilmira Ilieva ◽  
◽  
◽  
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
European Court ◽  
The Right

This article examines the organization and functioning of Bulgarian military courts to determine to what extent they are compatible with fair trial standards. The guarantees and institutional requirements for providing the right to a fair trial are analyzed in the light of the European Convention on Human Rights and the practice of the European Court of Human Rights. This research is focused on the issue whether Bulgarian military courts could provide a fair trial, held by an independent and impartial court, mainly with regard to civil citizens. For the purpose of the research is scrutinized the ECHR Judgment from 28.11.2019 on the case Mustafa vs. Bulgaria.

scholarly journals Khlaifia and Others v. Italy

2018 ◽  
Vol 112 (2) ◽  
pp. 274-280
Author(s):  
Jill I. Goldenziel
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
European Convention ◽  
Individual Rights ◽  
Detention Centers ◽  
European Court ◽  
Grand Chamber ◽  
The Individual ◽  
The Arab Spring ◽  
Domestic Law

In Khlaifia and Others v. Italy, the Grand Chamber of the European Court of Human Rights (Grand Chamber or Court) released a landmark opinion with broad implications for how states must respect the individual rights of migrants. In the judgment, issued on December 15, 2016, the Court held that Italy's treatment of migrants after the Arab Spring violated the requirement of the European Convention on Human Rights (ECHR) that migrants receive procedural guarantees that enable them to challenge their detention and expulsion. The Court also held that Italy's treatment of migrants in detention centers did not violate the ECHR's prohibition on cruel and inhuman treatment, in part due to the emergency circumstances involved. The Court further held that Italy's return of migrants to Tunisia did not violate the prohibition on collective expulsion in Article 4 of Protocol 4 of the ECHR. Enforcement of the judgment would require many European states to provide a clear basis in domestic law for the detention of migrants and asylum-seekers. Given the global diffusion of state practices involving migrants, and other states’ desires to restrict migration, this case has broad implications for delineating the obligations of states to migrants and the rights of migrants within receiving countries.

scholarly journals Collective Action Right as a Basic Human Right

2017 ◽  
Vol 6 (s2) ◽  
pp. 9-17
Author(s):  
Pir Ali Kaya ◽  
Ceyhun Güler
Keyword(s):  
Human Rights ◽  
Collective Action ◽  
Resistance Mechanism ◽  
European Convention ◽  
Social Rights ◽  
Human Right ◽  
Political Field ◽  
European Court ◽  
Social Interests ◽  
The Right

Abstract According to The European Social Charter, the European Convention on Human Rights, the ILO Conventions, the decisions of the European Court of Human Rights, the decisions of the European Social Rights Committee and the ILO supervisory bodies, the right to collective action is a democratic right that aims to protect and correct the economic and social interests of workers in the workplace or in another place appropriate for the purpose of action. The above-mentioned institutions accept the right to collective action as a fundamental human right. According to the decisions of the European Court of Human Rights, the right to collective action is regarded as a democratic right, including strike. In particular, the right to collective action is being used as a resistance mechanism against new working relations, which are imposed on working conditions, right to work and the right to organize. However, the tendency of this right to political field, leads to some debate about the legality of the right to collective action. In this context, In the decision of the European Court of Human Rights, the ILO's supervisory bodies and the European Committee on Social Rights, it is emphasized that collective action rights should be a basic human right. In this study, the legal basis of the right to collective action will be discussed in accordance with the decisions and requirements of the European Court of Human Rights and the decisions of the ILO supervisory bodies.

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