Activism identification in law enforcement approaches of judges of the European Court of Human Rights

2020 ◽  
Vol 6 (1) ◽  
pp. 129-139
Author(s):  
Andrew Yu. Klyuchnikov
Keyword(s):  
Human Rights ◽  
International Justice ◽  
Judicial Practice ◽  
Legal Method ◽  
European Court ◽  
Traditional Research ◽  
Protection Of Human Rights ◽  
General Scientific ◽  
The Subject ◽  
The Rich

The European Court of Human Rights (ECHR) is a unique institution not only in Europe, but in the whole world; it is by far the most effective among all the international human rights courts. Since its foundationing in 1959, it has dealt a huge number of decisions, becoming the most active participant in the international justice. The success of individual appeals, on which the entire Convention system is based, has inevitably led to the involvement of new areas of human rights in the subject of the court’s research, and has extended it to a new range of subjects. The Court’s systematic expansion of the area (borders) of the protection of human rights and fundamental freedoms, and the involvement of new areas in it due to the progressive nature of the practice, is a positive quality. The rich and diverse Strasbourg practice has changed the political and legal landscape of Europe. This has led to the ECHR becoming a victim of its own success, in some cases invading the sovereign powers of states and affecting their constitutional identity. Among practitioners and researchers of international justice issues, the voices about excessive activism of the Court started appearing more often. The author of this article studies the factors that contribute to the manifestation of activist positions by judges of the ECHR, identifies forms of activism, and distinguishes them from judicial passivism. The material for the article includes the work of prominent researchers of international justice problems, judges of the ECHR, Russian authors, and the judicial practice of this supranational court. The author uses traditional research methods — general scientific and special, with an emphasis on the comparative legal method. The subject of the study is the author’s scientific concepts that reveal judicial activism through the case-law of the ECHR. The relevance of the work lies in the problem of using the practice of supranational courts in national justice, and the effective application of the developed standards.

scholarly journals Theoretical Tools for Studying the Phenomenon of the Influence of the European Court of Human Rights Practice on Legal Activities in Ukraine

2019 ◽  
Vol 1 (85) ◽  
pp. 20-30
Author(s):  
В. А. Завгородній
Keyword(s):  
Human Rights ◽  
Scientific Intelligence ◽  
Legal Regulation ◽  
Practice Research ◽  
Human Rights Practice ◽  
European Court ◽  
Research Problems ◽  
General Scientific ◽  
The Subject ◽  
Selection Of

In this article, the existing approaches to general theoretical jurisprudence have been studied to understand the concept of «methodology» and its structure, on the basis of which the methodology of the European Court of Human Rights practice research and its influence on legal activity in Ukraine is determined. In the opinion of the owner, the most suitable for solving our research tasks is an approach in which the methodology of legal knowledge includes methodological tools and other designs, logically distributed by the conceptual and instrumental levels.As a result, the study found that the theoretical toolkit for the study of the phenomenon of influencing the practice of the European Court of Human Rights on legal activity in Ukraine are: a) universal epistemological principles (comprehensiveness, completeness, historicism, objectivity), which are the imperative requirements that guided the researcher; b) human-centered and sociological methodological paradigms that are interconnected, do not contradict and complement each other, as well as the provisions of the theories of legal influence, legal regulation, legal practice, law-making, legal interpretation, enforcement, legal relations, which became the basis for the formulation of research problems; c) anthropological, complex, dialectical, synergetic, axiological approaches, by which the strategy of scientific intelligence is determined, its specific perspective, selection of investigated facts and interpretation of research results are carried out; d) general scientific and special methods of cognition that ensure the receipt of true scientifically sound knowledge about the subject of research.

Practice of applying international principles in private law relations

2021 ◽  
Vol 28 (4) ◽  
pp. 223-231
Author(s):  
Olga T. Tur ◽  
Marta B. Kravchyk ◽  
Iryna Yu. Nastasiak ◽  
Myroslava M. Sirant ◽  
Nataliya V. Stetsyuk
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Private Law ◽  
The Rule Of Law ◽  
Legal Principles ◽  
Judicial Practice ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Content Specification

National and international courts are increasingly turning to generally recognised international legal principles to regulate private law relations. This is necessitated, in particular, by the fact that the issues and disputes that modern participants in private law relations address to the courts are becoming more widespread. Thus, the practice of international justice and justice in Ukraine demonstrates that such international principles as the principle of justice, equality, non-discrimination, evolutionary interpretation, proportionality, legal certainty, and the rule of law are increasingly used in dispute resolution. This study investigated the application of international principles in private law relations. Based on the general legal research methods, the nature of international legal principles was analysed, the study considered their application in the above-mentioned Ukrainian court cases to the European Court of Human Rights, as well as the Constitutional and Anti-Corruption Courts of Ukraine. The study investigated the judicial practice of the European Court of Human Rights, whose decisions raise the issue of violation of rights and fundamental freedoms stipulated in the Convention for the Protection of Human Rights and Fundamental Freedoms and non-compliance with basic international legal principles, as well as highlighted the main trends of these disputes. Based on the results of the analysis, the study identified an insufficient level of the content specification regarding the principle of the rule of law and its features in the current legislation of Ukraine, which must be properly observed by both state authorities and citizens of Ukraine. Based on the conducted research, the authors formulated their scientific positions and conclusions aimed at improving the system of principles of private law relations

scholarly journals Ensuring the detection of property in the institute of property seizure

2021 ◽  
Vol 10 (42) ◽  
pp. 236-247
Author(s):  
Anastasiia Bazhenova ◽  
Anatolii Desyatnik ◽  
Hanna Mudretska ◽  
Inna Pakipova
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Criminal Procedure ◽  
General Interest ◽  
Legal Analysis ◽  
Legal Method ◽  
Procedure Code ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Right

The article is devoted to the study of certain issues of property detection in the institution of seizure of property. On the basis of comparative legal analysis, the possibility of ensuring the detection of property using search and seizure within the Criminal Procedure Code of the past and modern Criminal Procedure Code of Ukraine and foreign countries was assessed. The rights of the victim under the Convention for the Protection of Human Rights and Fundamental Freedoms are analyzed in terms of his/her right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law to decide his/her civil rights and obligations. The application of the criminal procedural legislation of Ukraine is analyzed taking into account the practice of the European Court of Human Rights on the protection of human rights in relation to the rights of individuals or legal entities to peacefully own their property. Emphasis is placed on the fact that the previous provisions do not in any way restrict the right of the state to enact such laws as it deems necessary to exercise control over the use of property in accordance with the general interest. Scientific methods such as analysis, synthesis, formal-legal and comparative-legal method became the methodological basis of the research.

scholarly journals The Gravity of International Crimes as a Challenge to the (Full) Protection of Human Rights before International Criminal Tribunals? A Strasbourg Perspective

2017 ◽  
Vol 86 (4) ◽  
pp. 499-524
Author(s):  
Christophe Deprez
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
International Justice ◽  
International Crimes ◽  
International Criminal Tribunals ◽  
General Terms ◽  
European Court ◽  
Protection Of Human Rights ◽  
Human Rights Standards ◽  
Full Protection

While it goes undisputed that international criminal tribunals (icts) are, in general terms, bound to respect human rights standards, there is no consensus on whether their obligations should be identical in scope to those of national criminal tribunals. Most commentators seem to value the idea of equality in protection for international and domestic defendants alike. Yet, according to others, the human rights obligations of icts should be contextualised, that is, adapted to the specificities of international justice – and most critically to the gravity of international crimes. This article seeks to shed some light on this debate. It does so, in particular, by pointing out the intrinsic flexibility of human rights, and by drawing on the practice of the European Court of Human Rights with respect to gravity-based contextualism.

scholarly journals RIGHT TO A FAIR TRIAL IN THE CONTEXT OF ARTICLE 6 OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

2021 ◽  
Author(s):  
Mariana Khmyz ◽  
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Judicial Practice ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

Based on the study of the theory and generalization of judicial practice, in the article analyzes the main provisions of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and reveals their content through the prism of the practice of the European Court of Human Rights.

scholarly journals ECtHR positions on some issues of bioethics and genetic data

2018 ◽  
Vol 6 (4) ◽  
pp. 36-40 ◽  
Author(s):  
Елена Трикоз ◽  
Elena Trikoz ◽  
Елена Гуляева ◽  
Elena Trikoz
Keyword(s):  
Human Rights ◽  
International Law ◽  
Steering Committee ◽  
Council Of Europe ◽  
Public Authorities ◽  
Biological Origin ◽  
Genetic Characteristics ◽  
Judicial Practice ◽  
European Court ◽  
Protection Of Human Rights

This study focuses on international law protection, including means of procedural protection in the European Court of Human Rights, of such a fundamental right as respect for the dignity, uniqueness and uniqueness of a person, regardless of his genetic characteristics. After analyzing the emerging judicial practice in the ECtHR, the authors distinguish two categories of cases for the protection of genetic dignity, bioethics and biosecurity. The first group includes cases involving direct violations of the 1950 the Convention for the Protection of Human Rights and Fundamental Freedoms; and in the second group – subsidiary violations of the “Oviedo Convention” and the recommendations of the Steering Committee of the Council of Europe on bioethics. The authors focused on violations of reproductive rights, storage by public authorities of DNA samples and human cells, and access to information on biological origin.

Discriminación racial y ejercicio del derecho a la instrucción en la jurisprudencia del Tribunal Europeo de Derechos Humanos. El caso de la minoría gitana

2012 ◽  
pp. 247-291
Author(s):  
Lucía CASADO CASADO
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
The Czech Republic ◽  
Derechos Humanos ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Subject ◽  
Grand Chamber ◽  
The Right

LABURPENA: Lan honetan, lehen-lehenik, hurbilpen orokor bat egingo dugu Giza Eskubideak eta Oinarrizko Askatasunak Babesteko Europako Hitzarmenak jasotzen dituen diskriminazio-debekuaren eta hezkuntzarako eskubidearen eraketari; eta ondoren, arraza-diskriminazioaren debekuak hezkuntzarako eskubidearekin duen lotura aztertuko dugu, Giza Eskubideen Europako Auzitegiaren jurisprudentziaren esparruan. Horretarako, eremu horretako lau epai esanguratsuri helduko diegu: Giza Eskubideak eta beste batzuk Txekiar Errepublikaren aurka kasua, bi epai sortarazi dituena (bata Bigarren Sekzioarena, eta bestea Sala Nagusiarena); Sampanis eta beste batzuk Greziaren aurka kasua, eta Orsus eta beste batzuk Kroaziaren aurka kasua. Kasu horietan planteatzen den auzia da ea estatu jakin batzuek ijito etniako umeak eskolaratzeko abiarazi dituzten neurriak diskriminatzaileak diren ala ez. Horretaz gainera, gogoeta batzuk egingo ditugu alor horretako jurisprudentziaren bilakaeraz eta beraren ondorioez. RESUMEN: este trabajo, tras realizar una aproximación general a la configuración de la prohibición de discriminación y al derecho a la instrucción en el Convenio Europeo para la protección de los derechos humanos y las libertades fundamentales, analiza la prohibición de discriminación racial en conexión con el ejercicio del derecho a la instrucción en la jurisprudencia del Tribunal Europeo de Derechos Humanos. Para ello, examina cuatro sentencias relevantes recaídas en este ámbito (casos D.H. y otros contra República Checa, que ha dado lugar a dos sentencias —una de la Sección 2.ª y otra de la Gran Sala—; Sampanis y otros contra Grecia; y Orsus y otros contra Croacia), en las que se plantea si las medidas adoptadas por determinados Estados en relación con la escolarización de niños de etnia gitana son o no discriminatorias. También se realizan algunas consideraciones en torno a la evolución jurisprudencial en este ámbito y sus consecuencias. ABSTRACT: After a general approximation to the configuration of the prohibition of discrimination and of the right of instruction by the European Convention for the protection of human rights and fundamental freedoms, this work analyzes the prohibition of racial discrimination in relation with the exercise of the right of instruction within the case law of the European Court of Human Rights. For this purpose, four relevant judgments on the subject (cases D.H and others against the Czech Republic, which produced two rulings: one by the Second section and other by the Grand Chamber; Sampanis against Greece; and Orsus and others against Croatia) where it arose whether the measures adopted by some States in relation to the schooling of kids from the gypsy ethnic group are or not discriminatory are studied. Some considerations regarding the evolution by the case law regarding this area are also carried out and their consequences.

THE RULE OF LAW AND THE INDEPENDENCE OF THE JUDICIARY IN THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2021 ◽  
Vol 7 (4) ◽  
pp. 196-219
Author(s):  
Andrew Yu. KLYUCHNIKOV
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Judicial Independence ◽  
Case Law ◽  
European Convention ◽  
Current Case ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
European Court ◽  
Protection Of Human Rights

The article is devoted to the principle of the rule of law, implemented through the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. (Convention) by the European Court of Human Rights (ECHR). The relevance of studying this principle is due to the new approach formed by the Court that the rule of law is “inherent in all articles of the Convention.” We can see its application in the current case-law of the Court as one of the fundamental elements of the independence of national courts. Thus, the author aims to identify the theoretical and practical aspects of the ECHR’s approach to the problem of judicial independence and legal application of the rule of law principle, to study the relevant Court practice. The rule of law and the independence of the judiciary as the basic elements of the convention system are an integral part of the institution of the “European public order” developed by the ECHR, therefore it is necessary to trace their interconnection. The case-law of the ECHR served as the material for the study, which allowed us to identify all stages of the formation of the rule of law principle and its actual “content”. Analyzing judicial practice, along with using doctrinal approaches, we managed to identify the limits of permissible application of national laws, the powers of bodies and officials of various branches of government, bodies of the judicial community to the given problem, new aspects of the status of judges seen as one of the democratic values of society. To achieve this, the author used methods specific to studies of law and general scientific (traditional) research methods, with an emphasis on comparative and general legal methods, and the method of induction during the analysis of judicial practice. The paper examines the normative sources of law and judicial practice of the ECHR, allowing to reveal the principle of the rule of law, its correlation with the principle of judicial independence, the specifics of its impact on the domestic national judicial system and the functioning of the state apparatus, to determine the role of the principle in the convention mechanism of the protection of human rights.

scholarly journals Implementation of International Legal Standards in the Revision of the Judgements that are in Force by Supreme Court of Finland

2015 ◽  
Vol 3 (3) ◽  
pp. 54-65
Author(s):  
Vladimir Jilkine
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Legal System ◽  
Court Decisions ◽  
Legal Standards ◽  
Judicial Practice ◽  
European Court ◽  
The Supreme Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The article deals with the basis and procedure for review of court decisions that have entered into force, after the rulings of the European Court of Human Rights on violations of the Convention for the Protection of Human Rights and Fundamental Freedoms in review of the cases by the Supreme Court of Finland, in connection with the decision by which the applicant appealed to The European Court of Human Rights. The author’s analysis and comparison of judicial practice and the European legal system shows that when making decisions, the Supreme Court applies current national constitutional and legislative provisions.

Executive Force of the ECtHR Judgments in a Legal System of the Russian Federation (on the Basis of the Practice of the Constitutional Court)

2016 ◽  
Vol 4 (12) ◽  
pp. 0-0
Author(s):  
Сергей Князев ◽  
Syergyey Knyazyev
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
European Convention ◽  
Constitutional Court ◽  
Systematic Analysis ◽  
European Court ◽  
Russian Constitution ◽  
Protection Of Human Rights ◽  
The Subject ◽  
The Russian Federation

The article deals with the complex of issues concerned with the acknowledgement of the executive force of judgments of the European Court of Human Rights (ECtHR) and ensuring their implementation in the Russian Federation. According to the author, the main difficulties of the implementation of the Convention´s provisions for Russia are not connected with the Convention for the Protection of Human Rights and Fundamental Freedoms per se, but the interpretation of its norms in the judgments of the ECtHR. The author emphasized that the ECtHR usually avoids the direct conflicts with the Russian constitutional order in a process of decision-making and their execution does not cause any problems in a majority of cases. However, the active using of such tools as evolutive interpretation, European consensus, limits of national discretion, etc. by the ECtHR leads to the fact that its judgments are in contradiction with the Russian Constitution or legal positions of the Constitutional Court of the Russian Federation. Such ECtHR judgments are the subject matter of analysis of present article in a view of the assessing their executive force. On a basis of the systematic analysis of the legal positions of the Constitutional Court of the Russian Federation, the author comes to the conclusion about the necessity of surveying of all available to the Russian authorities’ funds to maintain a cohesive European (Convention) and national (constitutional) legal orders. Derogation from the legal obligation of the ECtHR judgments can be permissible in exceptional cases only and may be dictated only by the aims of protection of the state sovereignty and the supremacy of the Constitution of the Russian Federation.

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