scholarly journals Case of Bistieva and Others v. Poland

2020 ◽  
Vol 8 (2) ◽  
pp. 129-139
Author(s):  
Anna Magdalena Kosińska
Keyword(s):  
Family Life ◽  
European Convention ◽  
The European Union ◽  
Council Of Europe ◽  
Irregular Migrants ◽  
Alternative Measures ◽  
Minor Children ◽  
The Republic ◽  
The Right ◽  
Article 5

The present commentary concerns the claims alleging a violation under Article 5 paragraph 1 (the right to liberty and security of a person) and paragraph 4 (the right to take proceedings to determine the lawfulness of the detention) of the European Convention on Human Rights and Article 8 (the right to respect for private and family life) ECHR by using detention by the Republic of Poland for the period of almost 6 months with regard to a family of third-country nationals. The applicant in the case was a national of Russia, Zita Bistieva and her three minor children. The judgement under discussion is significant from the perspective of strengthening the guarantees for the protection of the rights of irregular migrants in the system of both the Council of Europe and the European Union, on the grounds of the concept of equivalent protection adopted in EU primary law. The ruling in question also refers to the fact that the Member States do not sufficiently resort to alternative measures with regard to the detention of foreign nationals.

scholarly journals Who is Entitled to the Right to Respect for Family Life Under the European Union Law?

Teisė ◽  
2019 ◽  
Vol 110 ◽  
pp. 24-45
Author(s):  
Ingrida Danėlienė
Keyword(s):  
European Union ◽  
Human Rights ◽  
Family Life ◽  
National Level ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
European Union Law ◽  
The Republic ◽  
The Right

[full article, abstract in English; abstract in Lithuanian] The article investigates the right to respect for family life, established by Article 7 of the Charter of Fundamental Rights of the European Union, as applied and interpreted in conjunction with the right to marry and the right to found a family, laid down in Article 9 of the Charter. The standard of protection set by European Union law regarding these rights is identified by taking into account the standard of protection of the relevant rights established by the European Convention on Human Rights and the established case law of the European Court of Human Rights. Topical issues relating to the consolidation of these individual rights at the national level in the Republic of Lithuania are also addressed in the article. In doing so, an emphasis is laid on the content of the concepts of “family” and “family life” under supranational and national law.

scholarly journals Free legal aid in the context of the right of access to court

2020 ◽  
Vol 59 (89) ◽  
pp. 65-82
Author(s):  
Dušica Palačković ◽  
Jelena Čanović
Keyword(s):  
Human Rights ◽  
National Level ◽  
European Convention ◽  
Quality Level ◽  
The European Union ◽  
Legal Aid ◽  
European Court ◽  
The Republic ◽  
The Right ◽  
Right Of Access

The Constitution of the Republic of Serbia explicitly regulates that free legal aid shall be stipulated by the law. In a series of reports on the progress of the Republic of Serbia in the process of joining the EU, there are warnings about the unacceptably low quality level and efficiency of the judiciary, and indications that there is a need to regulate the legal aid system. Finally, this matter was regulated by enacting the Legal Aid Act of the Republic of Serbia, which came into force on 1st October 2019. In addition to the conceptual definition of legal aid, the paper analyzes the right of access to court as a constituent element of the right to a fair trial prescribed in Article 6 of the European Convention on Human Rights, which entails the right to legal aid. The regulation of legal aid at the national level has to meet the standards formulated at the European Union level as well as the standards formulated through the practice of the European Court of Human Rights. In that context, the paper analyzes the regulations and decisions, i.e. the widely recognized and accepted standards. The Legal Aid Act of the Republic of Serbia has been analyzed in the context of meeting these standards, especially in relation to the conditions for granting the right to legal aid and the circle of beneficiaries and providers of certain types of legal aid.

scholarly journals The Peculiarities of Private and Family Life Protection: The Experience of the European Court of Human Rights

2021 ◽  
Vol 7 (2) ◽  
pp. 39-45
Author(s):  
Oksana MELENKO ◽  
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Private Life ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Essential Questions ◽  
The Public Sphere ◽  
The Uk ◽  
The Right

One of the most vulnerable spheres of life of any individual is his / her private and family life. Therefore, this issue could not slip the attention of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (hereinafter - the Convention) (Council of Europe, 1950). In fact, there have always been some prejudices within this issue, as it is not a secret that accusations of violating an individual’s right to privacy often provoke discussion in the public sphere. For example, when the UK Special Forces eliminated three terrorists (who were no longer resisting) on the territory of Gibraltar (Case of McCann and Others v. the United Kingdom, 1995), the media did not particularly intend to protect the right to life of these criminals. On the other hand, quite a few liberal media sources have resonantly responded to the interference with private life, when a group of stockbrokers and bankers were prosecuted for sadomasochism in a private residence. A similar behavior of the press was observed when discussing the mandatory use of seat belts. However, when considering the issues related to the violation of Article 8 of the Convention (Council of Europe, 1950), it is important to find answers to a few rather essential questions: Has there been an interference with private life under Article 8 § 1 of the Convention (Council of Europe, 1950)? If so, then – Is this interference sufficiently justified in the light of Article 8 § 2 of the Convention (Council of Europe, 1950), namely: Was the interference lawful? If yes, then – Did the interference have a lawful purpose? If yes, then – Was the interference necessary for a democratic society (can it be regarded as an adequate response to socially urgent necessity)? In case there arises a question concerning state’s positive obligations, it will no longer belong to the jurisdiction of paragraph 2, but will touch upon the analysis of the issue whether state’s positive obligation exists at all.

15. Protecting Family Life

2017 ◽  
Author(s):  
Bernadette Rainey ◽  
Elizabeth Wicks ◽  
Andclare Ovey
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
The Family ◽  
Definition Of ◽  
The Right ◽  
Article 5

This chapter examines the protection of family life under Article 8 of the European Convention on Human Rights, as well as Article 12 and Article 5 of Protocol 7. It discusses the definition of family life, custody, access and care proceedings, adoption, and the right to marry. It also discusses particular issues arising in relation to the family life of non-nationals and prisoners.

Migration and the European Convention on Human Rights

2021 ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Migrant Children ◽  
European Convention ◽  
Council Of Europe ◽  
Systematic Analysis ◽  
Broad Perspective ◽  
Irregular Migrants ◽  
Textual Silence ◽  
The Right

This book investigates where the European Convention on Human Rights (ECHR) as a living instrument stands on migration and rights of migrants. Individual chapters in the volume address how the tension between the textual silence of the Convention concerning migrant rights and the significant number of cases that the ECHR have addressed concerning migration and rights migrants are resolved or left to the discretion of European states. This book offers a comprehensive analysis of cases brought by migrants in different stages of migration covering the right to flee, who is entitled to enter and remain Europe, what treatment is owed to them when they come within the jurisdiction of a Council of Europe member state, not only to those who recently entered Europe, but also to those who have been living in Europe for a longer time. As such, the book evaluates the case law of the ECHR concerning different categories of migrants including asylum seekers, irregular migrants, those who have migrated through domestic lawful routes and those who are currently second- or third-generation migrants in Europe. The broad perspective adopted by the book allows for a systematic analysis of how and to what extent the Convention protects non-refoulement, migrant children, family rights of migrants, status rights of migrants, economic and social rights of migrants, as well as cultural and religious rights of migrants.

scholarly journals The environmental right in the system of the Convention for the Protection of Human Rights and Fundamental Freedoms – selected aspects

2020 ◽  
Vol 31 (4) ◽  
pp. 1-7
Author(s):  
Anna Dąbrowska
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Council Of Europe ◽  
Environmental Rights ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
A Charge ◽  
The Right

Abstract This paper aims to discuss the place of environmental right in the system of the 1950 European Convention – a fundamental Council of Europe treaty on protection of human rights. Interestingly, it does not explicitly guarantee the environmental right, it needs to be determined; therefore, if individuals can cite violations of this right in their complaints to the European Court of Human Rights – the authority guarding obedience to the European Convention. Analysis of the Strasbourg decisions implies the environmental right can be applied to highly diverse situations. In practice, complainants cite its infringements in connection with violations of the right to private and family life as incorporated in Article 8 of the European Convention. This does not mean, however, every time a complainant cites Article 8 of the European Convention to accuse a state of breaching their environmental rights, the European Court is going to accept such a charge.

15. Protecting Family Life

2020 ◽  
pp. 376-406
Author(s):  
Bernadette Rainey ◽  
Pamela McCormick ◽  
Clare Ovey
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Child Abduction ◽  
International Child ◽  
The Family ◽  
Additional Protection ◽  
Definition Of ◽  
The Right ◽  
Article 5

This chapter examines the protection of family life under Article 8 of the European Convention on Human Rights, as well as the additional protection found in Article 12 and Article 5 of Protocol 7. It discusses the definition of family life and the positive obligations inherent in the right to ‘respect’. It also examines issues such as assisted reproduction and surrogacy, custody, access and care proceedings, international child abduction, adoption, inheritance rights, and the particular issues which arise in relation to the family life of non-nationals and prisoners. In addition, it addresses the right to marry and the right to equality between spouses.

scholarly journals The environmental right in the system of the Convention for the Protection of Human Rights and Fundamental Freedoms – selected aspects

2020 ◽  
Vol 31 (4) ◽  
pp. 1-7
Author(s):  
Anna Dąbrowska
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Council Of Europe ◽  
Environmental Rights ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
A Charge ◽  
The Right

Abstract This paper aims to discuss the place of environmental right in the system of the 1950 European Convention – a fundamental Council of Europe treaty on protection of human rights. Interestingly, it does not explicitly guarantee the environmental right, it needs to be determined; therefore, if individuals can cite violations of this right in their complaints to the European Court of Human Rights – the authority guarding obedience to the European Convention. Analysis of the Strasbourg decisions implies the environmental right can be applied to highly diverse situations. In practice, complainants cite its infringements in connection with violations of the right to private and family life as incorporated in Article 8 of the European Convention. This does not mean, however, every time a complainant cites Article 8 of the European Convention to accuse a state of breaching their environmental rights, the European Court is going to accept such a charge.

Does the Aggravated Sentencing Regime under the Prevention of Organised Crime Act 121 of 1998 Violate Freedom of Association? A Constitutional and Comparative Analysis

2021 ◽  
Vol 2021 (2) ◽  
pp. 288-305
Author(s):  
Delano Cole van der Linde
Keyword(s):  
The United States ◽  
Organised Crime ◽  
Gang Member ◽  
European Convention ◽  
Political Rights ◽  
Freedom Of Association ◽  
Criminal Organisation ◽  
Protection Of Human Rights ◽  
The Republic ◽  
The Right

In terms of section 10(3) of the Prevention of Organised Crime Act 121 of 1998 (“POCA”), a court may impose an aggravated sentence on a criminal offender if the offender was a gang member at the time of the commission of a crime. The court is entitled to apply section 10(3) to the sentencing of any common-law or statutory offence, save for the gang-related offences in Chapter 4 of POCA. As aggravated punishment is attached directly to a person’s status as a gang member, one must question whether such aggravated punishment does not violate the right to freedom of association in section 18 of the Constitution of the Republic of South Africa, 1996. Section 18 is an unqualified right and subject only to the limitations clause under section 36 of the Constitution. The purpose of this contribution is to investigate whether the associational freedom guaranteed by the Constitution may be limited in light of considerations under international law (such as the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights and the European Convention on the Protection of Human Rights and Fundamental Freedoms) as well as foreign law (specifically the United States and Germany). The consensus is, broadly speaking, that persons are nondeserving of associational protection where the conduct connected to such an association is criminal in nature. Increased criminal consequences are justifiable where a person’s unlawful conduct is also connected to their status and activity as a member of a criminal organisation. However, increased criminal consequences based merely on a person’s membership of a criminal organisation, as is the case in terms of section 10(3) of POCA, is considered arbitrary and irrational. The conclusion is that section 10(3) of POCA should be amended so that it applies only to crimes that are related to a convicted person’s gang-related activities.

Professional secrecy and legal professional privilege

2018 ◽  
Vol 25 (2) ◽  
pp. 188-207 ◽  
Author(s):  
Jorg Sladič
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Family Life ◽  
Common Law ◽  
Civil Law ◽  
Fundamental Rights ◽  
The Other ◽  
European Convention ◽  
Legal Professional ◽  
The Right

Legal privilege and professional secrecy of attorneys relate to the right to a fair trial (Article 6 European Convention on Human Rights (ECHR)) as well as to the right to respect for private and family life (Article 8 ECHR). The reason for protecting the lawyer via fundamental rights is the protection of fundamental rights of the lawyer’s clients. All legal orders apply legal privileges and professional secrecy; however, the contents of such are not identical. Traditionally there is an important difference between common and civil law. The professional secrecy of an attorney in civil law jurisdictions is his right and at the same time his obligation based on his membership of the Bar (that is his legal profession). In common law legal privilege comprises the contents of documents issued by an attorney to the client. Professional secrecy of attorneys in civil law jurisdictions applies solely to independent lawyers; in-house lawyers are usually not allowed to benefit from rules on professional secrecy (exceptions in the Netherlands and Belgium). On the other hand, common law jurisdictions apply legal professional privilege, recognized also to in-house lawyers. Slovenian law follows the traditional civil law concept of professional secrecy and sets a limited privilege to in-house lawyers. The article then discusses Slovenian law of civil procedure and compares the position of professional secrecy in lawsuits before State’s courts and in arbitration.

Sign in / Sign up

Export Citation Format

Share Document