scholarly journals The right to a justice court: implementation of the practice of the European Court of human rights in the Ukrainian judiciary

2021 ◽  
Vol 5 (S4) ◽  
Author(s):  
Alina V. Denysova ◽  
Alla B. Blaga ◽  
Viktor P. Makovii ◽  
Yevheniia S. Kaliuzhna
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Scientific Methods ◽  
National Courts ◽  
Judicial Practice ◽  
Functional Methods ◽  
European Court ◽  
Analysis And Synthesis ◽  
The Right ◽  
Constituent Elements

The purpose of this study is to reveal the content of the right to a fair trial and the state of its provision in Ukraine through the prism of court decisions of Ukrainian courts of various instances and the relevant practice of the European Court of Human Rights. The methodological basis of the study is a set of philosophical and ideological, general and special scientific methods and techniques of scientific knowledge, including dialectical, systemic, structural and functional methods, as well as methods of analysis and synthesis. It is identified that the right to a fair trial in legal science, judicial practice is considered in its constituent elements and relevant manifestations, including fairness and publicity of the trial, compliance with the signs of independence, impartiality, legality, observance of the rule of law, equality of participants, and proceedings within reasonable time limits. Each of the elements, mentioned and features of the right to a fair trial is subject to appropriate interpretation in the context of the relevant decisions of the European Court of Human Rights during the review of case materials in national courts of the signatory states to the Convention.

scholarly journals Reflection of Decisions of the European Court of Human Rights on Impartiality and Independence of National Courts in Context of the Right to a Fair Trial

2021 ◽  
Vol 5 (1) ◽  
pp. 67-90
Author(s):  
Alla Demyda
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
National Courts ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Principles Of Justice ◽  
The Right

The article focuses on the principle of impartiality and independence of judiciary as a part of the right to a fair trial according to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In particular, an account will be taken of the case law of the European Court of Human Rights in matters of applications from national judges. The article considers the reflection of the decision of the European Court of Human Rights on the amendment of national legislations and the amendment of the provisions of the national constitutions regarding the principles of justice.

scholarly journals FUTILITY OF THE REGULATORY FRAMEWORK ON THE ORGANIZATION AND OPERATION OF PUBLIC GATHERINGS – THE RIGHT TO PROTEST IN ROMANIA

2020 ◽  
Vol 13 (2) ◽  
pp. 8-14
Author(s):  
Marius-Adrian Arva
Keyword(s):  
Human Rights ◽  
Detailed Analysis ◽  
Regulatory Framework ◽  
National Courts ◽  
European Court ◽  
Introductory Part ◽  
The Right ◽  
Constituent Elements

If in the introductory part of the paper we present the constituent elements of the right to protest in relation to constitutional or conventional provisions and by analyzing some jurisprudential elements of the national courts and of the European Court of Human Rights, in the second part we carry out a detailed analysis of the solutions pronounced by the relevant national courts, based on which we concluded the uselessness of the sanctions regulation regarding the participation in protest actions carried out in a peaceful context.

scholarly journals CRITERION OF A FAIR TRAIL: INTERNATIONAL STANDARDS AND ITS IMPLEMENTATION BY NATIONAL JUSTICE

2017 ◽  
pp. 0-0
Author(s):  
Анатолий Ковлер ◽  
Anatoliy Kovler
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
Point Of View ◽  
International Standards ◽  
European Convention ◽  
National Courts ◽  
Judicial Practice ◽  
European Court ◽  
Venice Commission

International standards of a fair trial were created by centuries of judicial practice and are stipulated by the international and regional pacts and conventions, as well as by the reports and opinions of the Venice Commission. The case-law of the European Court of Human Rights concerning complains against violations of a right to a fair trial are also of a great importance from the point of view of an implementation by the national courts of the European Convention on Human Rights. The European Convention on Human Rights in its Article 6 “Right to a fair trial” — a “core” article of the Convention, provides such standards of a fair trial as a public hearing within a reasonable time by an independent and impartial court established by law, judgment must be pronounced publicly. Besides these standards the Convention suggests some procedural guarantees of a fair trial everyone must be informed promptly of the nature of an accusation against him, he has a right to defend himself of though legal assistance ant to examine witnesses, etc. The case-law of the European Court on Human Rights shows that practically all European countries, including Russia, have problems with the implementation of the Convention’s standards into the practice of justice. That is why the Article 6 remains the most “suggested” complain of the applicants.

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.

Comparative Views on the Right to Vote in International Law

2018 ◽  
Author(s):  
Shai Dothan
Keyword(s):  
Human Rights ◽  
International Law ◽  
National Courts ◽  
European Court ◽  
Right To Vote ◽  
The Right ◽  
Democratic Elections ◽  
The Way

There is a consensus about the existence of an international right to vote in democratic elections. Yet states disagree about the limits of this right when it comes to the case of prisoners’ disenfranchisement. Some states allow all prisoners to vote, some disenfranchise all prisoners, and others allow only some prisoners to vote. This chapter argues that national courts view the international right to vote in three fundamentally different ways: some view it as an inalienable right that cannot be taken away, some view it merely as a privilege that doesn’t belong to the citizens, and others view it as a revocable right that can be taken away under certain conditions. The differences in the way states conceive the right to vote imply that attempts by the European Court of Human Rights to follow the policies of the majority of European states by using the Emerging Consensus doctrine are problematic.

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.

Access to Court v State Immunity

2003 ◽  
Vol 52 (2) ◽  
pp. 297-332 ◽  
Author(s):  
Emmanuel Voyiakis
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
State Immunity ◽  
European Court ◽  
The Law ◽  
The Right

This comment discusses three recent judgments of the European Court of Human Rights in the cases of McElhinney v Ireland, Al-Adsani v UK, and Fogarty v UK. All three applications concerned the dismissal by the courts of the respondent States of claims against a third State on the ground of that State's immunity from suit. They thus raised important questions about the relation the European Convention on Human Rights (the Convention)—especially the right to a fair trial and access to court enshrined in Arcticle 6(1)—and the law of State immunity.

Bulgarian Military Courts and the Right to a Fair Trial

De Jure ◽  
2020 ◽  
Vol 11 (2) ◽  
Author(s):  
Ilmira Ilieva ◽  
◽  
◽  
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
European Court ◽  
The Right

This article examines the organization and functioning of Bulgarian military courts to determine to what extent they are compatible with fair trial standards. The guarantees and institutional requirements for providing the right to a fair trial are analyzed in the light of the European Convention on Human Rights and the practice of the European Court of Human Rights. This research is focused on the issue whether Bulgarian military courts could provide a fair trial, held by an independent and impartial court, mainly with regard to civil citizens. For the purpose of the research is scrutinized the ECHR Judgment from 28.11.2019 on the case Mustafa vs. Bulgaria.

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.

scholarly journals RE-CONCEPTUALIZING THE RIGHT OF SILENCE AS AN EFFECTIVE FAIR TRIAL STANDARD

2009 ◽  
Vol 58 (4) ◽  
pp. 835-861 ◽  
Author(s):  
John Jackson
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Criminal Process ◽  
European Court ◽  
The Right ◽  
Right Of Silence

AbstractAs the European Court of Human Rights has come to qualify the privilege against self-incrimination and the right of silence in recent decisions, this article argues that the Court has failed to provide a convincing rationale for these rights. It is claimed that within the criminal process the right of silence should be distinguished from the privilege against self-incrimination and given enhanced effect in order to uphold the protective and participatory rights of the defence which come into play when a suspect is called upon to answer criminal allegations.

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