scholarly journals Europejski Trybunał Praw Człowieka wobec totalitarnej destrukcji porządku własnościowego w Polsce. Część 1

2021 ◽  
Vol 43 (2) ◽  
pp. 333-342
Author(s):  
Aleksander Cieśliński
Keyword(s):  
World War Ii ◽  
Legal Protection ◽  
Case Law ◽  
Legal Analysis ◽  
Totalitarian Regime ◽  
European Court ◽  
General Meaning ◽  
Historical Developments ◽  
Domestic Law

The aim of this article is to analyze the role of the European Court of Human Rights in overcoming totalitarian regime in the area of proprietary rights in Poland, the only state not adopting special legislation to meet these claims. It is the destruction of this part of the traditional legal system after World War II that can be considered as a key element of totalitarianism itself. However, this paper is not focused on historical developments, but rather on their current consequences, trying to evaluate links between them and modern legal order — particularly important in terms of limited temporal court jurisdiction over the area. In terms of the rule of law principle, it is essential how can a state cope with making good damages suffered by the victims. Careful research has proved practical application of the domestic law as well as functioning of public institutions to be based on serious systemic deficiencies making effective legal protection very difficult and sometimes impossible. They were rulings of the court playing a crucial role in supporting national authorities and setting standards of better protection — also achieved through judicial dialogue with the national judiciary. This very case-law also has a more general meaning, as it pictures a mode of ECHR’s jurisdictional activity and quite functional approach to the interpretation of the convention. This article is divided into two parts. The first one presents the general meaning of the area, the genesis of the protection, and major trends in the case-law development. The second part will offer a legal analysis of art. 1 and careful a systematization of leading rulings.

Rola uzasadnienia sądowego w realizacji prawa do rzetelnego procesu sądowoadministracyjnego– standard strasburski

2014 ◽  
pp. 13-31
Author(s):  
Katarzyna Grzelak-Bach
Keyword(s):  
Human Rights ◽  
Legal Reasoning ◽  
Case Law ◽  
Legal Order ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings ◽  
Court Proceedings ◽  
Basic Level

Following a brief introduction of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the author begins by analyzing case law from the European Court of Human Rights regarding the legal reasoning in judicial proceedings. The main premise of this paper is to present a formula for preparing legal reasoning in administrative court proceedings. The author draws attention to the role of judges who, in the process of adjudication, should apply creative interpretation of the rules of law, when they see errors or omissions in legislative provisions, or blatant violations of the European legal order. The conclusion of those deliberations finds, that the process of tailoring the approach to meet Strasbourg’s requirements should, on a basic level, be at the discretion of judges rather than the legislators.

Property and Expropriation: Two Concepts Revisited in the Light of the Case Law of the European Court of Human Rights and the European Court of Justice

2019 ◽  
Vol 8 (2) ◽  
pp. 172-191
Author(s):  
Sabrina Praduroux
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Economic Value ◽  
Case Law ◽  
European Court Of Justice ◽  
Property Law ◽  
Court Of Justice ◽  
European Court ◽  
Key Concepts ◽  
Domestic Law

Abstract In the late 1950 s René Savatier foretold that the qualification of economic value itself as property (bien) would have been the ultimate evolution of the theory of property rights. This prediction has come true with regard to the case law of the European Court of Human Rights (ECtHR) and the European Court of Justice (CJEU). This paper investigates the implications of the understanding of property developed by the two European Courts on the concept of expropriation itself as well as for the principles governing expropriation law. Hence, the paper illustrates the role played by both the ECtHR and the CJEU in laying down the parameters of legitimacy for national law, including property law. Within this context, the focus falls on cases in which the Courts characterize the facts as deprivation of property requiring for compensation, even though the relevant property could not be the object of expropriation under the domestic law of the defendant State. My contribution brings new insights into the current transformation of the traditional property categories and suggests the reinterpretation of some key concepts of expropriation law.

scholarly journals The other side of tax discrimination

2019 ◽  
Vol 40 (2) ◽  
pp. 929-956
Author(s):  
Mateusz Wąsik
Keyword(s):  
Sexual Orientation ◽  
Case Law ◽  
The European Union ◽  
Eu Member States ◽  
Legal Provisions ◽  
Long Run ◽  
European Court ◽  
Domestic Law ◽  
Personal Taxation ◽  
The Eu

The purpose of the paper is to present the tax consequences resulting from the lack of recognition of registered partnerships and same-sex marriages in certain EU member states, taking the example of Poland. These aspects are usually perceived as discrimination of citizens based on their sexual orientation. The author of this paper has focused on various aspects of possible discrimination, mainly concerning discrimination on the grounds of personal taxation, including inheritance and gift taxes. For these purposes, the author analysed the domestic tax rules differentiating couples living in a marriage and couples without that possibility. These legal provisions have been analysed together with the most recent domestic jurisprudence. Furthermore, the paper presents comparative analyses of domestic rules with EU law. Due to the lack of case-law oriented towards fiscal discrimination due to sexual orientation, the relevant CJEU (the Court of Justice of the European Union, hereinafter: the CJEU) and ECHR (the European Court of Human Rights, hereinafter: the ECHR) case-law have been recalled to reveal possible violations of fundamental freedoms and tax discrimination. The author makes a connection between the lack of proper regulations implemented in the domestic law with the unjustified differentiation of cross-border families on tax grounds. In the long run, only the harmonisation of personal taxation at the EU level can lead to a resolution to this situation. Alternatively, as an interim solution, the relevant ECHR judgment may be of assistance.

scholarly journals La posición de las sentencias del tribunal de justicia de la Unión Europea en el sistema constitucional de fuentes

2017 ◽  
pp. 483 ◽  
Author(s):  
Miryam Rodríguez-Izquierdo Serrano
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Law System ◽  
Spanish Law ◽  
Spanish Constitution ◽  
Court Of Justice ◽  
European Court ◽  
El Sistema

Este artículo propone un análisis sistemático de la posición de las sentencias del Tribunal de Justicia en el sistema constitucional de fuentes. El análisis parte de dos premisas: la primera es la de que los órdenes normativos supranacional y estatal tienen autonomía formal, pero no material; la segunda es que la integración del Derecho de la Unión en el ordenamiento estatal no puede explicarse sin la jurisprudencia del Tribunal de Justicia. Se describen los efectos de las sentencias del juez europeo en el orden supranacional, para luego ver cómo se transfieren al sistema de fuentes estatal, teniendo en cuenta la función integradora de la Constitución tanto en el plano interior como en el exterior.This article is a review of the different kind of rulings made by the European Court of Justice, in order to find their function and position in the Spanish Law system. The analysis is made under two assumptions: the first one about the formal autonomy but material dependency between EU and Spanish law systems; the second one is that the European Court of Justice case law rules over the interaction between both systems. Formal and substantive effects of ECJ rulings over both systems are described and analysed, considering the integrating role of the Spanish Constitution.

Psychiatric commitment: over 50 years of case law from the European Court of Human Rights

2006 ◽  
Vol 21 (7) ◽  
pp. 427-435 ◽  
Author(s):  
G. Niveau ◽  
J. Materi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Time Frame ◽  
Governmental Organizations ◽  
Non Governmental Organizations ◽  
European Court ◽  
Right To Information ◽  
Definition Of ◽  
Respective Number

AbstractPurposeTo extensively review the European Court of Human Rights (ECHR) case law concerning psychiatric commitment, and to estimate the role of this supranational jurisprudence in the practice of contemporary psychiatry.MethodUsing keywords to search the ECHR computerized database “HUDOC”, we reviewed all cases concerning psychiatric commitment registered between September 1953 and December 31, 2004. Four groups were identified: applications declared inadmissible; applications accepted but not judged by the Court; pending cases; and cases judged by the Court.ResultsOf the almost 118,000 decisions taken by the ECHR in this time frame, we found 108 situations concerning psychiatric commitment. Forty-one of these applications were considered by the Court to be inadmissible. Twenty-four other cases were considered admissible but not judged by the ECHR. Three admissible cases were still pending at the end of 2004. The ECHR judged 40 cases, and found in 35 of them that one or several rights as guaranteed by the Convention had been violated.DiscussionThe ECHR protects the human rights of persons subjected to involuntary psychiatric commitment by creating supranational law in the following areas: definition of “unsoundness of mind”; conditions of lawfulness of detention; right to a review of detention by a Court; right to information; right to respect for private and family life; and conditions of confinement, which address inhuman and degrading treatment. The respective number of applications submitted to the ECHR did not depend on when the Convention had entered into force in that country.ConclusionThe possibility of an individual to access the ECHR depends on the degree of democracy in his country and on the access to legal assistance through non-governmental organizations or individual intervening parties.

Problems of ECHR Decisions Implementation into Domestic Law

2015 ◽  
Vol 3 (6) ◽  
pp. 0-0
Author(s):  
Татьяна Шуберт ◽  
Tatyana Shubert
Keyword(s):  
Russian Federation ◽  
Systematic Approach ◽  
Legal Regulation ◽  
European Court ◽  
Legal Nature ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Government ◽  
Domestic Law

The article examines the ECHR legal nature and types of its decisions, analyzes the activities of the Government of the Russian Federation and the RF Ministry of Justice on the implementation of the European Court of Human Rights’ judgments. The author notes the role of the Plenum of the Supreme Court of the Russian Federation in ensuring uniform application of the Convention and Protocols thereto, ratified by the Russian Federation, by the courts of general jurisdiction. The author analyzes reasons for slow and incomplete implementation of the ECHR decisions, and comes up with the measures for their implementation. The article discusses peculiarities of the execution of the ECHR judgments in the Russian Federation: mechanistic execution of the decisions, lack of a systematic approach to the legislation analysis, absence of identification of causes for non-compliance of the regulations with the Convention on Rights of Man and Citizen, lack of coordination between bodies executing the ECHR decisions, inadequate budgetary procedures and lack of funds. The author proposes to analyze structural and general deficiencies in the national law and practice with regard to the ECHR decisions; provides recommendations to improve the mechanism for the judicial decisions’ implementation; determines lines of development for legal regulation of relations in the field of ECHR judgments’ implementation in the Russian legislation.

The European Parliament's Role in EU Treaty-Making

2016 ◽  
Vol 23 (6) ◽  
pp. 1009-1039 ◽  
Author(s):  
Andrea Ott
Keyword(s):  
Case Law ◽  
European Parliament ◽  
Constitutional Rights ◽  
International Treaties ◽  
National Parliaments ◽  
International Treaty ◽  
Court Of Justice ◽  
European Court ◽  
External Relations

The European Parliament's role in EU external relations and treaty-making has increased over the years through constitutional practice and Treaty amendments. Finally, with the Treaty of Lisbon, the European Parliament's constitutional rights in treaty-making establish – in the words of the European Court of Justice (CJEU) – ‘symmetry between legislation-making and treaty-making in compliance with institutional balance provided for by the Treaties’. In a comparative overview, the European Parliament has ascertained more extensive powers over treaty-making compared to the majority of national parliaments which are only involved in politically important international treaties. This contribution addresses the consequences of this symmetry or parallelism and asks whether it leads to structural symmetry or even procedural symmetry which synchronizes the acts of legislating and treaty-making with each other. This contribution analyses the role of the European Parliament in the different phases of international treaty-making against the backdrop of this constitutional practice. This constitutional practice is shaped by intergovernmental agreements, bilateral arrangements and European Parliament resolutions and is influenced by the mounting case law of the CJEU. It also assesses the European Parliament's role in concluding international administrative agreements concluded by the Commission and Europol and how far the constitutional practice is in line with EU primary law.

CURRENT DEVELOPMENTS: IV. CITIZENSHIP AND HUMAN RIGHTS

2004 ◽  
Vol 53 (2) ◽  
pp. 493-501 ◽  
Author(s):  
Erika Szyszczak
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
International Obligations ◽  
Court Of First Instance

Citizenship and human rights continue to play an important role in the evolution of Community law. Both sets of principles have appeared in the case law of the European Courts and in the creation of a Constitutional document for Europe. Part II of the draft Constitution incorporates the Charter of Fundamental Rights of the Union. Additionally, the first report from the independent network of experts in fundamental human rights details the various international human rights obligations which the Member States are subject to, analysing Member State policy in a number of areas in the light of the international obligations.1Paradoxically, at a time when greater emphasis is being paid to the constitutional recognition of human rights there are indications of divisions between some of the Advocates General, the Court of First Instance and the European Court of Justice (the Court) on the constitutional role of fundamental rights in relation to access to justice.

scholarly journals A Judicial Review of the De Facto Detention of Foreigners in Turkey

2020 ◽  
Vol 10 (2) ◽  
pp. 143-153
Author(s):  
Gamze Ovacik
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Judicial Review ◽  
Case Law ◽  
Legal Framework ◽  
Court Decisions ◽  
Administrative Practices ◽  
The Rule Of Law ◽  
European Court ◽  
Domestic Law

The term, de facto detention, refers to instances in which foreigners are held or deprived of their liberty usually with a view to preventing their entry into a country or expelling them from a country, but without implementing a legally prescribed detention regime that satisfies the criteria of the rule of law. The first type of de facto detention occurs when provisions regulating detention are absent or deficient in the legal framework. The second type takes place when domestic law sufficiently regulates detention regimes; however, the law is not duly implemented in practice. This article examines judicial practices in Turkey in both categories of de facto detention, analysing 37 Turkish court decisions with supporting case law from the European Court of Human Rights. Focusing on case law makes it possible both to track deficiencies in administrative practices and to analyse judicial response as a tool for rectifying unlawful administrative practices.

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