scholarly journals Wykorzystywanie danych personalnych zgromadzonych przypadkowo podczas operacji bezzałogowych statków powietrznych w świetle standardów prawa do prywatności gwarantowanego w Europejskiej Konwencji o Ochronie Praw Człowieka — zarys problemu

2021 ◽  
Vol 43 (1) ◽  
pp. 331-346
Author(s):  
Jakub Kociubiński
Keyword(s):  
Public Space ◽  
Research Question ◽  
Data Gathering ◽  
Personal Data ◽  
Case Law ◽  
European Convention ◽  
Public Authorities ◽  
Data Anonymization ◽  
Aerial Platforms ◽  
The One

The rapid growth of data-gathering technologies on the one hand has provided public authorities with a valuable tool for counteracting crimes, but on the other gave rise to concerns over potentially excessive intrusion into persons’ privacy. In order to mitigate the risk of authoritarian behavior stemming from a moral hazard arising out of ability to conduct an ever more effective surveillance, public authorities must impose certain self-limitations with regards to the usage of such data. In this context, the use of unmanned aerial vehicles, which may serve other non-invigilation purposes, may inadvertently lead to collecting someone’s personal data. This paper provides a propaedeutic analysis of legal challenges associated with collateral collection of personal data through unmanned aerial platforms operated by public bodies, and the subsequent use of said data. The analysis will be carried out through the lens of the standards set out in the European Convention on Human Rights (ECHR). In order to provide an answer to the paper’s research question whether the current acquis on Article 8 of the ECHR setting out the basic right to privacy and exceptions thereof require adjustment, the analysis will begin with an overview of the existing case-law dedicated to the ECHR’s standards associated with collecting and processing personal data with an emphasis on its relevance to technical specifi cities of drones operations. The inquiry will then focus on standards associated with operating unmanned platforms during which personal data may be collaterally collected in public places. While it stands to reason that anyone within such a public space must reasonably expect that his or her privacy will be somewhat limited, a distinction must be made between mere recording and the subsequent use of such data for a different purpose that it was originally gathered. The next part of the analysis will cover a legal assessment of situations whereby sensors installed on a drone used by public authorities over public spaces will record persons within their domicile — place of living. The analysis carried out in this paper has led to conclusion that while the core of the pre-existing ECHR’s case-law can be successfully applied per analogiam to unmanned aerial platforms’ operations, due to technical and operational factors there is no feasible way to provide adequate information about whether a monitoring is conducted, who is carrying it out, etc., in a similar manner as this is being done in the case of stationary close-circuit cameras. Therefore, it is necessary to place a greater emphasis on ex officio data anonymization. 

Reconstructing the European Court of Human Rights’ Article 8 Jurisprudence in Deportation Cases: The Family’s Right and the Public Interest

2020 ◽  
Vol 20 (2) ◽  
pp. 333-360
Author(s):  
Jonathan Collinson
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Case Law ◽  
Best Interests ◽  
European Convention ◽  
The Public ◽  
European Court ◽  
Two Factors ◽  
The One ◽  
The Right

Abstract This article rationalises the case law of the European Court of Human Rights under Article 8 of the European Convention on Human Rights in deportation cases involving children. The Court engages in a balancing exercise between the right to family life of the deportee’s family on the one side, and the public interest in deportation on the other. This article expands on existing case law analysis by suggesting that in deportation cases, the Court considers Article 8 as a form of commonly held right, rather than an individual right held by one member of the family. Furthermore, the balance is argued to be constructed as a relationship between two factors on both sides, rather than of a sole factor on either side as being determinative. This article concludes that the best interests of the child (one of the ‘Üner criteria’) is not adequately reflected in the Court’s deportation decision-making practice.

Direct action, Convention values and the Human Rights Act

Legal Studies ◽  
2001 ◽  
Vol 21 (4) ◽  
pp. 535-568 ◽  
Author(s):  
Helen Fenwick ◽  
Gavin Phillipson
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Direct Action ◽  
Case Law ◽  
European Convention ◽  
Free Expression ◽  
Public Order ◽  
Public Authorities ◽  
Human Rights Act ◽  
Human Rights Act 1998

The direct action form of protest is becoming an increasingly significant form of political expression. This paper considers such protest in relation to the guarantees of free expression and peaceful assembly under arts 10 and 11 of the European Convention on Human Rights, now binding on United Kingdom public authorities under the Human Rights Act 1998. Its aim is to set out a framework of principle which would guide and underpin judicial approaches to the application of the Convention to domestic criminal law aimed at such protest, specifically ss 68 and 69 of the Criminal Justice and Public Order Act 1994. It argues that, because of the deficiencies of the Strasbourg case law in this area, an activist judicial stance, one reliant on underlying Convention values, will be required if there is to be any significant change to the traditional, illiberal domestic approach to direct action.

scholarly journals The digital world and the new frontiers of the European courts case-law

2019 ◽  
Vol 5 (1) ◽  
pp. 4-15
Author(s):  
José Luís Da Cruz Vilaça
Keyword(s):  
Personal Data ◽  
Case Law ◽  
Fundamental Rights ◽  
General Interest ◽  
Full Potential ◽  
Electronic Communications ◽  
The Rule Of Law ◽  
Digital World ◽  
The One ◽  
The Right

Finding the right balance between achieving the full potential of the digital economy in terms of innovation and economic growth, on the one hand, and protecting the core values of our societies, including fundamental rights and the rule of law, on the other hand, has become a pressing issue for political and judicial authorities. Data generated by electronic communications is an important tool in the fight against organized crime and terrorism, whose effectiveness depends on the use of modern research techniques. However, the pursuance of that general interest objective must be balanced against the need to protect the fundamental rights to privacy and to personal data from the most serious interferences.

Freedom of expression and Islam: Charlie Hebdo’s lessons

2021 ◽  
Vol 28 (1) ◽  
pp. 61-70
Author(s):  
Dmytro V. Lukianov ◽  
Volodymyr M. Steshenko ◽  
Hanna P. Ponomarova
Keyword(s):  
Islamic Law ◽  
Freedom Of Expression ◽  
Case Law ◽  
Legal Framework ◽  
European Convention ◽  
Scientific Methods ◽  
Religious Conflicts ◽  
Legal Method ◽  
The Subject ◽  
The One

This article studies specifics of Islamic understanding of freedom of expression and significant differences between Islamic and European understanding of that concept. Freedom of expression is recognized in Islam; however, it has significant and deeply-rooted peculiarities. In particular, Islam strictly prohibits imaging Prophet Muhammad, let alone making cartoons of him. For instance, from the perspective of Muslims, imaging Prophet Muhammad as a dog is extremely cynical, since a dog in Islam is an unclean animal inadvisable to contact with. Also, there is long-established perception of humour and its admissibility in Islam. For example, under Islamic law one shall not tell lies or scare another person; one shall not joke with an older person, a teacher, a scientist, a manager, a person who does not understand jokes, an unknown man or woman; a joke shall not be offensive or degrading a man or a family; one shall not joke about prohibited issues, tell dirty stories, disclose intimate details, resort to insults or slander. The article points out that Europeans perceive drawing cartoons of the Prophet as freedom of expression. However, in the eyes of Muslims such cartoons constitute violation of a number of prohibitions existing in Islam and therefore deeply insult their religious and cultural feelings. Such insults may cause religious conflicts with many victims, like the one that happened in the January of 2015 in the office of Charlie Hebdo French satirical weekly newspaper. To prevent similar and even more terrible tragedies in the future and release tension between Europeans and Muslims, primarily in Europe, the article explores the legal framework and conditions for restriction of freedom of expression set out in universal international law, the European Convention on Human Rights and relevant case-law of the ECHR. The set of the general and specific scientific methods of research were used by the authors according to the subject and scope of the study: sociological, statistical, dialectical, formal stylistic, axiological, hermeneutic, systemic, comparative legal method etc.

Limits to Measures of Confiscation of Property Linked to Serious Criminal Offences in the Case Law of the European Court of Human Rights

2021 ◽  
Vol 30 (1) ◽  
pp. 265-281
Author(s):  
Roberto Virzo
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
International Agreements ◽  
European Convention ◽  
Legal Standards ◽  
European Court ◽  
The One ◽  
Criminal Matters ◽  
Principle Of Legality

In the past thirty years, a growing number of international agreements and acts of international institutions has resorted to different kinds of confiscation (“direct confiscation”, “value confiscation”, “enlarged confiscation” or “nonconviction based confiscation”) to contrast and suppress international and transnational crimes. It can be considered that the flexibility – in terms of variety of measures and functions – of confiscation, together with the forced and permanent deprivation of property to which it always leads, significantly affect the favor towards this measure by States and international organisations. The European Court of Human Rights (ECtHR), taking into account the aforementioned proliferation of international acts and agreements concerning the fight to criminal activities, maintains that common “European and even universal legal standards” can be said to exist which encourage the confiscation of property linked to serious criminal offences. Moreover, the Court has gone so far as to maintain that, in accordance with such “universal legal standards”, States Parties to the European Convention of Human Rights must be given “a wide margin of appreciation with regard to what constitutes the appropriate means of applying measures to control the use of property such as the confiscation of all types of proceeds of crime”. However, the implementation of such measures by States authorities must conform with human rights guarantees – inter alia the principle of legality in criminal matters, due process rights and property rights – provided for in customary and conventional international law. This essay seeks to examine the relevant case law of the ECtHR and to focus on the possibility of reconciling, on the one hand, international obligations on the protection of human rights and, on the other hand, international agreements and acts – concerning the fight against criminal activities – that provide for the various types of confiscation measures.

scholarly journals Present problems to the Right to Peaceful Public Assembly in Spain

2019 ◽  
Vol 1 (1) ◽  
Author(s):  
Andrés Gascón-Cuenca ◽  
Alejando Año-Ibiza ◽  
Marcos Diago-Sanz ◽  
Olga Lenzi ◽  
Lorena Mercader-Jiménez ◽  
...  
Keyword(s):  
Human Rights ◽  
Public Safety ◽  
Case Law ◽  
Fundamental Rights ◽  
International Standards ◽  
European Convention ◽  
Constitutional Court ◽  
Critical Approach ◽  
The One ◽  
The Right

he Public Safety Organic Act 4/2015, also known as Spanish "gag law", has been harshly criticized by both national and international experts, and several worldwide institutions, due to the fact that it may be considered contrary to human rights and fundamental freedoms. This report focuses on the identification of the standards of protection of the right to peaceful public assembly and the challenges this new regulation poses to it. Therefore, we will cover the following areas: On the one hand, we shall analyze the Spanish legal framework, that includes the following: Article 21 of the Spanish Constitution, which offers a special protection to the right to peaceful public assembly. The constitutional standards of protection. The problem of the definition of this right. The case-law of the Constitutional Court, in order to identify the standards of protection set by it. Articles 513 and 557 of the Criminal Code. The Private Security Services Act, as it regulates some aspects that may interfere with fundamental rights, as the one we are studying in this report. Finally, we will analyze the regulation established by the new Public Safety Organic Act, entered into force in 2015, and also the Peaceful Public Assembly Regulatory Act. On the other hand, we will research into the international standards of protection of the right to peaceful public assembly, which are mainly settled in three international legal instruments: The Human Rights Council, the International Covenant on Civil and Political Rights, and the European Convention on Humans Rights, and its case-law. Finally, we shall conclude this report with a critical approach to the new regulation established by the Public Safety Organic Act, as we consider it precludes the standards of protection we will identify throughout the report.

Wyrok ETPC jako precedens wiążący quasi de iure a efektywność porządku Europejskiej Konwencji Praw Człowieka (perspektywa teoretycznoprawna)

2017 ◽  
pp. 7-29
Author(s):  
Bartosz Liżewski
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
European Convention ◽  
International Court Of Justice ◽  
Stare Decisis ◽  
European Court ◽  
International Court ◽  
Protection Of Human Rights ◽  
The One

In the system of the European Convention on Human Rights (ECHR or the Convention), the basic formula for creating standards for the protection of human rights is to define their understanding of and possible modifications or changes as a result of a law-making interpretation of the provisions of the Convention. The substantive rules of the Convention since its inception, not only have not changed (they were amended or derogated), but in addition are very general. This causes, that the way their understanding sets the European Court of Human Rights (ECHR or tribunal) forming in a legislative standards for the protection of human rights. That raises the interesting question of theoretical, since in public international law on the one hand the judgment of an international court is recognized as an auxiliary source of international law (art. 38 sec. 1 point d Statute of the International Court of Justice), while not applicable rule of stare decisis, meaning legally bound judgment precedent of other courts in similar cases. If, however, a violation of well-established case law of the ECHR by the national authorities is the reason for the judgment of the committee of three judges without a hearing (art. 28 paragraph. 1 point b ECHR). Judgments of the Court (the monopoly of interpretation of the ECHR) must be respected and enforced in order of national law (Art. 46 paragraph. 1 and 2 of the ECHR). This raises the natural question of the scope of their precedensowości for the tribunal and law enforcement organs in the national legal system. It is with this problem both theoretical and practical. The obvious fact is that the decision of the ECHR does not create a precedent in the sense of how suitable term in common law. However, its decisions affect application of the law on domestic, not only in reality, but partly also legal, so that it can be concluded that the judgment has the power of the normative and, to some extent binding. But what is the scope of the precedent character of this sentence? The answer to this question is the subject of considerations to be taken in the paper.

scholarly journals DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS AS THE SOURCE OF THE CONSTITUTIONAL LAW OF UKRAINE

2019 ◽  
pp. 19-23
Author(s):  
P. M. Synytsyn
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
Complex Structure ◽  
Case Law ◽  
European Convention ◽  
Constitutional Court ◽  
Public Authorities ◽  
European Court ◽  
Protection Of Human Rights

The article has been devoted to the analysis of the nature of the decisions of the European Court of Human Rights as a source of constitutional law of Ukraine. The nature of the judgments of the European Court of Human Rights has been characterized depending on the following factors: state legal system, constitutional approach to the relation between national and international law, the level of bindingness of decisions of the European Court of Human Rights for public authorities. The author has concluded on the duality of nature the decisions of the European Court of Human Rights, namely that, the author considers that the decisions of the European Court of Human Rights have a complicated, complex structure, combining the properties of both a right-interpreting act and a judicial precedent. According to the author, the decisions of the European Court of Human Rights are intended not only to resolve the cases under trial, but also to specify and interpret the rules of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It has been established that the current Ukrainian legislation, establishing the primacy of the rule of law before the law, provides for the obligation of the judicial authorities to apply the decisions of the European Court of Human Rights as a source of law and at the same time the duty of the state to enforce the decisions of the European Court of Human Rights in cases where Ukraine is the defendant. In addition, as the case law of the European Court of Human Rights shows, the judiciary itself emphasizes in its decisions the interpretative nature and the binding nature of all its decisions to be taken into account by all States parties. The Constitutional Court of Ukraine constantly uses the decisions of the European Court of Human Rights to form its own legal positions, after which they actually become a substantive element of the motivating part of the decision of the Constitutional Court of Ukraine. It has been concluded that regardless of whether or not the decision of the European Court of Human Rights has been ruled on Ukraine, it is a source of constitutional law in Ukraine.

Judicial Approaches to the Human Rights Act

2003 ◽  
Vol 52 (3) ◽  
pp. 549-586 ◽  
Author(s):  
David Bonner ◽  
Helen Fenwick ◽  
Sonia Harris-Short
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
House Of Lords ◽  
Before And After ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The One ◽  
The Impact ◽  
Court Of Appeal

The case law generated in just over two years' operation of the Human Rights Act 1998 (HRA), enables stocktaking rather than definitive appraisal.1 This article begins by recalling the markedly contrasting roles in United Kingdom law of the European Convention on Human Rights (ECHR) before and after the HRA, the better to appreciate judicial approaches to, and use of, the HRA in the areas surveyed. The second part of the article focuses on judicial use of key provisions of the HRA to interpret primary legislation said to conflict with one or more Convention rights and on judicial use of the power to make a declaration of incompatibility. It considers a selection of decisions, principally of the House of Lords and the Court of Appeal, which raise important points regarding the purpose and scope of the HRA as a constitutional document and indicate judicial uncertainty as to how the HRA should be conceptualised, interpreted and applied. With this emerging picture of a cautious and uncertain judiciary in mind, the final two sections of the article give detailed consideration to the post-HRA jurisprudence within two discrete areas of English law. Part III explores the impact of the HRA on judicial approaches to the clash between the freedoms of expression and assembly, on the one hand, and public order, on the other. Part IV considers the ‘use and abuse’ of the HRA and of Article 8 ECHR in private law family disputes. Finally, certain tentative conclusions as to the perhaps disappointing story of the HRA so far, will be proffered.

scholarly journals Psychiatric Commitment: Sixty Years Under the Scrutiny of the European Court of Human Rights

2021 ◽  
Vol 12 ◽  
Author(s):  
Gérard Niveau ◽  
Camille Jantzi ◽  
Tony Godet
Keyword(s):  
Human Rights ◽  
International Institutions ◽  
Case Law ◽  
Psychiatric Practice ◽  
European Convention ◽  
Major Influence ◽  
Direct Effects ◽  
Council Of Europe ◽  
European Court ◽  
The One

Background and Aims: In the field of mental health, the fundamental right to liberty is a point of tension between the practice of psychiatric commitment on the one hand and the universal concept of human rights on the other. The European Court of Human Rights (ECtHR) is a very specific means of safeguarding human rights because it allows an individual to not only assert their rights but also compel a state to bring its legislation into conformity with the principles of the European Convention on Human Rights. The aim of this study was to gather the case-law of the ECtHR on psychiatric commitment over the last 60 years and to determine how this case-law has affected national legislation and therefore psychiatric practice.Methods: Jurisprudence data were collected from the HUDOC ECtHR database, and the direct effects of the ECtHR judgements on the legislations of the countries concerned were collected from the HUDOC EXEC database of the Council of Europe. The case-law of the Court included 118 judgements and 56 decisions and concerned 31 of the 45 countries that have ratified the Convention.Results: This study therefore showed a direct effect of the Court's case-law on the legislation on psychiatric commitment in the various countries that have ratified the Convention. It was also possible to detect an indirect effect of this case-law through the directives of international institutions such as the directives of the Committee of Ministers of the Council of Europe concerning respect for people with mental disorders.Conclusions: The ECtHR case-law therefore has a major influence on the psychiatric practice in all Council of Europe countries.

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