scholarly journals Interstate Application on Behalf of Organisations Lacking Non-governmental Status is Inadmissible. Comment on ECtHR Decision in Slovenia v. Croatia (Application No. 54155/16)

2021 ◽  
Vol 10 (2) ◽  
pp. 151-161
Author(s):  
Natalia Cwicinskaja
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
European Court ◽  
The Republic ◽  
Effective Remedy ◽  
State Case ◽  
Inter State

The present commentary concerns the claims alleging a violation under Article 6(1) (right to a fair trial), Article 14 (Prohibition of Discrimination) and Article 13 (Right to an Effective Remedy) of the European Convention on Human Rights as well as Article 1 of Protocol No. 1 (Peaceful Enjoyment of Possessions) to the European Conventionon Human Rights by preventing Ljubljana Bank (a Slovenian bank) from enforcing and collecting the debts of its Croatian debtors in Croatia by the Croatian authorities. The case under discussion is an inter-state case and the applicant was the Republic of Slovenia. The decision is significant from the perspective of the development of case law in inter-state cases, which are still rare in the practice of the European Court of Human Rights. It has been confirmed that inter-state applications are additional measures for the protection of the rights of individuals which cannot be used to protect State interests.

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.

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.

scholarly journals Standards of the European Court of Human Rights in the area of administrative law with special reference to the Republic of Macedonia

2018 ◽  
Vol 55 (4) ◽  
pp. 815-833
Author(s):  
Vesna Stefanovska ◽  
Blerton Sinani
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Case Law ◽  
Administrative Law ◽  
International Standards ◽  
European Convention ◽  
Republic Of Macedonia ◽  
European Court ◽  
Criminal Charges ◽  
The Republic

In many occasions, the European Court of Human Rights has reiterated that the ECHR is a ‘living instrument’. The rights enshrined in the Convention have to be interpreted in the light of present day conditions so as to be practical and effective. Therefore, the Court has on several occasions modified its views on certain subjects because of scientific developments. Although in the scope of Article 6(1) of European Convention on Human Rights are civil rights and obligations and criminal charges, the application to administrative disputes has arised from the Court’s case-law. This paper will try to analyze the framework of administrative disputes in the Republic of Macedonia, mainly the Law on Administrative Disputes and its consolidation with the international standards, specifically with the ECHR. Further, subject of elaboration will be the Macedonian dossier in Strasbourg and the judgments in which the ECtHR found violation of Article 6 of ECHR in relation to administrative disputes and procedures.

scholarly journals Exhaustion of domestic remedies as a condition of lodging a complaint before the European Court of Human Rights

2017 ◽  
Vol 1 (3) ◽  
pp. 168-173
Author(s):  
Tamara Gerasimenko
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Scientific Methods ◽  
European Court ◽  
International Court ◽  
Scope Of Application ◽  
The Subject ◽  
Effective Remedy ◽  
The Right

The subject. The article is devoted to the subject of the exhaustion of domestic remediesbefore filing a complaint to the European Court of Human Rights.The purpose. The purpose of this article is to show and reveal the characteristics of suchimportant condition of lodging a complaint before the European Court of Human Rights asthe exhaustion of domestic remedies.The methodology. The following scientific methods have been used to write this article:analysis, comparing and making conclusions.Results, scope of application. The right of individual petition is rightly considered to be thehallmark and the greatest achievement of the European Convention on Human Rights. Individualswho consider that their human rights have been violated have the possibility oflodging a complaint before the European Court of Human Rights. However, there are importantadmissibility requirements set out in the Convention that must be satisfied beforea case be examined. Applicants are expected to have exhausted their domestic remediesand have brought their complaints within a period of six months from the date of the finaldomestic decision. The obligation to exhaust domestic remedies forms part of customaryinternational law, recognized as such in the case – law of the International Court of Justice.The rationale for the exhaustion rule is to give the national authorities, primarily the courts,the opportunity to prevent or put right the alleged violation of the Convention. The domesticlegal order should provide an effective remedy for violations of Convention rights.Conclusions. The rule of exhaustion of domestic remedies is an important part of the functioningof the protection system under the Convention and its basic principle. 

The right to the protection of religious feelings versus freedom of expression in the light of the Constitution of the Republic of Poland and the European Convention on Human Rights

2019 ◽  
Vol 1 (2) ◽  
pp. 58-83
Author(s):  
Janusz Roszkiewicz
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Point Of View ◽  
European Convention ◽  
Constitutional Court ◽  
A Value ◽  
European Court ◽  
The Republic ◽  
The Right

This article concerns the right to the protection of religious feelings as a value which justifies a restriction of freedom of expression. The right to the protection of religious feelings can be protected by three methods: civil, penal and administrative. The issue is discussed from the point of view of the Constitution of the Republic of Poland and the European Convention on Human Rights, with particular emphasis on the case-law of the Polish Constitutional Court and the European Court of Human Rights in Strasbourg.

ANONIMNI SVEDOCI I ZAŠTITA LjUDSKIH PRAVA

2021 ◽  
pp. 277-296
Author(s):  
Veljko Turanjanin ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
Step Test ◽  
European Convention ◽  
Criminal Proceedings ◽  
National Legislation ◽  
European Court ◽  
The Right ◽  
Insufficient Knowledge

Тhe author deals with the problem of anonymous witnesses in the context of the right to a fair trial in the jurisprudence of the European Court of Human Rights. One of the problems in the application of Article 6 of the European Convention on Human Rights is related to the testimonies of anonymous witnesses in criminal proceedings. The case law of the European Court of Human Rights has developed certain criteria that must be followed in national legislation, but it is obvious that there is insufficient knowledge regarding this problem, as well as the reluctance to apply the mentioned rules. The standards developed by the ECtHR are very important for national laws and jurisprudence. The author explains the development of a three-step test that needs to be examined when assessing a violation of the right to a fair trial, through an analysis of a multitude of judgments, in order to provide guidance on the application of Article 6 § 3 (d) of the European Convention on Human Rights. After introductory considerations, the author explains who can be a witness under the Convention, since this question is raised independently of national legislation, and then explains the right to examine witnesses, the admissibility of testimonies by anonymous witnesses and the examination of the three-stage test, and gives concluding remarks.

scholarly journals ADMINISTRATION OF JUSTICE DURING THE COVID-19 PANDEMIC AND THE RIGHT TO A FAIR TRIAL

2021 ◽  
Author(s):  
Krešimir Kamber ◽  
Lana Kovačić Markić
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
World Health ◽  
European Convention ◽  
European Court ◽  
Administration Of Justice ◽  
The Right ◽  
The Way

On 11 March 2020 the World Health Organization announced the Covid-19 (coronavirus) to be a pandemic. To combat the pandemic, many countries had to adopt emergency measures and some of these measures have affected the judicial system, especially the functioning of courts. The pandemic has been characterised as far as the judiciary is concerned by complete or partial closure of court buildings for the parties and for the public. It is clear that the functioning of national judicial systems has been severely disrupted. This limited functioning of courts impacted the individuals’ right to a fair trial guaranteed, in particular, under Article 6 of the European Convention on Human Rights. The aim of this article is to examine the manner of the administration of justice during the Covid pandemic and its impact on the due process guarantees. Focus is put on the extent to which different Covid measures, in particular remote access to justice and online hearings have impacted the guarantees of the right to a fair trial and the due process guarantees in general, notably in detention cases. In this connection, the article provides a comparative overview of the functioning of the European legal systems during the pandemic. It also looks into the way in which the two European courts – the European Court of Human Rights and the Court of Justice of the European Union functioned, as well as the way in which the Croatian courts, including the Constitutional Court, organised their work during the pandemic. The article then provides an insight into the issue of online/remote hearings in the case-law of the European Court of Human Rights and in the Croatian Constitutional Court’s case-law. On the basis of this assessment, the article identifies the differences in the use of remote/online hearings between and within jurisdictions. In conclusion, the article points to some critical considerations that should be taken into account when devising the manner in which any Covid pandemic experience with the administration of justice (notably with regard to remote/online hearings) can be taken forward.

scholarly journals Predictive analytics in crime prevention and the European Convention on Human Rights: tackling risks in privacy and fair trial frameworks

2021 ◽  
pp. 225-250
Author(s):  
Donatas Murauskas
Keyword(s):  
Human Rights ◽  
Crime Prevention ◽  
Predictive Analytics ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
Conceptual Issue ◽  
The Right To Privacy ◽  
European Court ◽  
The Right

In this paper, I discuss whether the European Convention on Human Rights provides safeguards to individuals affected by predictive analytics in crime prevention. I start with depicting a conceptual issue that worries legal scholars – the trend of law-enforcement authorities to increase their attention to crime prevention rather than traditional criminal investigations. Then, I dive into the right to privacy case-law of the European Court of Human Rights looking for the Court’s references to the threats of data processing. Lastly, I select concrete cases of the European Court of Human Rights on the right to a fair trial to show that the human rights safeguards are not yet developed to frame predictive analytics in crime prevention.

scholarly journals The Right to a Fair Trial in Automated Civil Proceedings

2019 ◽  
Vol 13 (1) ◽  
pp. 27-44
Author(s):  
Maria Dymitruk
Keyword(s):  
Artificial Intelligence ◽  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
Reasonable Time ◽  
European Court ◽  
Civil Proceedings ◽  
Judicial Proceedings ◽  
The Right

Challenges associated with the use of artificial intelligence (AI) in law are one of the most hotly debated issues today. This paper draws attention to the question of how to safeguard the right to a fair trial in the light of rapidly changing technologies significantly affecting the judiciary and enabling automation of the civil procedure. The paper does not intend to comprehensively address all aspects related to the right to a fair trial in the context of the automation of civil proceedings but rather seeks to analyse some legal concerns from the perspective of the Article 6 of the European Convention on Human Rights and the case-law of the European Court of Human Rights. Section 1 discusses the issues of using artificial intelligence in the justice and automation of the judicial proceedings. Section 2 is devoted to the judge supporting system based on artificial intelligence and psychological requirements of its practical use. Section 3 presents the right to a fair trial in civil cases established by the Article 6 of the European Convention on Human Rights, while subsequent sections characterize its elements with respect to the possibility to automate civil proceedings: a right to have case heard within a reasonable time in section 4 and a right to a reasoned judgment in section 5.

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