Rolul activ al judecatorului, Dreptul la un proces echitabil si refuzul efectuurii unei trimiteri preliminare. Perspectiva Curtii Europene a Drepturilor Omului si exemple din jurisprudenta romaneasca (The Active Role of the Judge, Right to a Fair Trial and Refusal to Make a Preliminary Reference. The Perspective of the European Court of Human Rights and Examples from Romanian Case-law)

2014 ◽  
Author(s):  
Daniel Mihail Sandru ◽  
Constantin-Mihai Banu ◽  
Dragos Calin
Keyword(s):  
Human Rights ◽  
Active Role ◽  
Case Law ◽  
Fair Trial ◽  
European Court

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.

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.

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.

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.

Case-law of the European Court of Human Rights in juvenile cases. Selected cases

2019 ◽  
Vol 584 (9) ◽  
pp. 18-32
Author(s):  
Elżbieta Czyż
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Young Person ◽  
Fair Trial ◽  
European Countries ◽  
European Court ◽  
Court Proceedings ◽  
The Right ◽  
Procedural Rights ◽  
Entire Procedure

The right to a fair trial, rules on deprivation of liberty are important standards in the entire procedure of dealing with juveniles, from detention to the end of court proceedings. The judgments of the European Court of Human Rights cited in the article illustrate what are the problems with complying with this standard in practice in several European countries, including Poland. It seems that one of the reasons may be declarative, apparent treatment of the rights of child/juvenile, especially when it concerns procedural rights. Teaching a young person respect for the law and responsibility for his behaviour requires subjective treatment so that he can feel, on his own example, the operation of a system based on clear, predictable, understandable rules.

The European Court of Human Rights and the Protection of Arctic Indigenous Peoples Rights

2018 ◽  
Vol 9 (1) ◽  
pp. 24-52
Author(s):  
Mikael Lundmark
Keyword(s):  
Human Rights ◽  
Indigenous Peoples ◽  
Active Role ◽  
Case Law ◽  
Historical Background ◽  
The Arctic ◽  
European Convention ◽  
European Court ◽  
Protection Of Human Rights ◽  
Solid Foundation

Based on an ongoing case in Sweden, where Girjas Sami village sued the Swedish state for violation of property rights, this article examines the European Court of Human Rights’ potential influence in the Arctic region’s legal system when it comes to protection of property of Arctic indigenous peoples. This article shows that notwithstanding the historical background of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the case law of the Court provides a solid foundation to advocate that the Court can take a more active role in protecting the rights of Arctic indigenous peoples. What is different in the case of indigenous peoples is that their rights pre-exist that of a modern state, and this does not correlate with the structure of the Convention, which seemingly leads to less protection under the Convention for indigenous peoples. This puts a higher level of responsibility both upon the applicants, as well as on the Court to scrutinize, and apply, the case law of the Court in line with the Convention and the adopted principle of interpretation.

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 Tajemnica adwokacka jako element realizacji prawa do sprawiedliwego procesu sądowego oraz prawa do poszanowania korespondencji

2021 ◽  
Vol 33 (2) ◽  
pp. 7-21
Author(s):  
Natalia Banach ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Private Life ◽  
Fundamental Rights ◽  
Moral Norms ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Republic ◽  
The Right

The issue of exemption from the attorney-client privilege and the nature of this attorney-client privilege is widely discussed both in the literature on the subject and in the doctrine. In order to analyze this subject, it was necessary to interpret the provisions of the Law on the Bar Ac (26 May 1982), the provisions of the Code of Bar Ethics (23 December 2011) the Constitution of the Republic of Poland (2 April 1997), both guarantees enshrined in the Convention for the Protection of Human Rights and Fundamental Rights of liberty from 1950. The interpretation was made in conjunction with Polish case law common courts and case law of the European Court of Human Rights. This also presents the view of the polish Ombudsman’s Office. Given that the professional secrecy of lawyers is an inseparable element of justice, it would be wrong to omit the generally accepted moral norms of society in relation to the procedural role of a lawyer. The thesis put forward that the professional secrecy of lawyers is part of the implementation of the right to a fair trial and the right to respect for private life. The purpose of the work was to emphasize the essence of lawyers’ secrecy as an inseparable element of defense of the parties to the proceedings and to indicate interpretation differences between Polish courts and the case law of the European Court of Human Rights.

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