scholarly journals An Invitation to Mexican Courts to Engage with Transnational Sources of Law

2021 ◽  
Vol 14 (1) ◽  
pp. 90
Author(s):  
Zulima González
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
Federal Judiciary ◽  
Principles And Standards ◽  
Legal Frameworks

In 2009, Mexican Courts started to engage in a transnational conversation between foreign courts. After Mexico was sentenced by the Inter- American Court of Human Rights (IACHR) in the case of Radilla Pacheco, the Mexican Supreme Court determined, among other things, that all national judges must examine the human rights interpretations issued by the Federal Judiciary and the IACHR, choosing the most favorable and effective interpretation to protect human rights, applying the pro homine principle. Nonetheless, nothing has been said about using case law from foreign courts as persuasive authority to find this “most favorable and effective interpretation of human rights” in Mexico. This article analyses whether Mexican courts should take into account the interpretations of foreign courts as persuasive authority when determining standards and scope of human rights, besides IACHR case law. I evaluate different theories that support the use and citation of foreign precedents, as well as arguments that raise concerns about citing foreign courts to interpret domestic legal frameworks. I conclude that, in order to make use of the most effective principles and standards of human rights, as the pro persona principle suggest, Mexican Courts should consider foreign case law.

The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Supreme Court ◽  
Human Dignity ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
The Supreme Court ◽  
Additional Burden ◽  
The Impact

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

Slovo of the National School of Judges of Ukraine

2021 ◽  
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
Judicial Reform ◽  
Council Of Europe ◽  
Judicial Practice ◽  
National School ◽  
The Supreme Court ◽  
Grand Chamber ◽  
The Impact

The special edition of the national professional scientific and practical legal magazine “The Slovo of the National School of Judges of Ukraine” was published, which contains reports delivered at the online conference "Ensuring the unity of judicial practise: the legal positions of the Grand Chamber of the Supreme Court and standards of the Council of Europe", held on the occasion of the third anniversary of the Grand Chamber of the Supreme Court. time of thematic sessions and webinars for judges of each of the courts of cassation in the Supreme Court, as well as joint sessions for judges of different jurisdictions at the end of 2020. The National School of Judges of Ukraine held these events together with the Supreme Court and in synergy with the Council of Europe projects "Support to Judicial Reform in Ukraine", "Further Support for Ukraine's Implementation in the Context of Article 6 of the European Convention on Human Rights", USAID New Justice Program, OSCE Project Coordinator in Ukraine. These are projects that support various aspects of judicial reform in Ukraine, compliance with Council of Europe standards and recommendations, offering best practices from member states to help make priorities in the national reform process. The conference and training events were attended by more than 550 participants - judges of the Supreme Court, other courts, leading Ukrainian and foreign experts, representatives of the legal community. Trainers and all structural subdivisions of the National School of Judges of Ukraine were involved, the training activities of which were identified by the CCEJ in one of its conclusions as one of the important tools to ensure the unity of judicial practice. Programs of activities included reports on the role of the Grand Chamber of the Supreme Court in ensuring the unity of judicial practice and the impact on the legal system; unity of judicial practice in the context of standards - improving access to justice in Ukraine: removing procedural obstacles and ensuring the right to an impartial court, approaches to identifying cases of minor complexity and cases of significant public interest or exceptional importance for a party in the context of access to court of cassation: practice the supreme courts of the member states of the Council of Europe and the European Court of Human Rights; key positions of the Supreme Court - application of the provisions of the procedural codes on the grounds for transferring the case to the Chamber, the joint chamber or the Supreme Court, the impact of its decisions on legislative activity, ensuring the specialization of courts and judges, the practice of the Supreme Court of the Supreme Court on administrative cases, the practice of considering cases of disciplinary liability of judges, conclusions on the rules of criminal law, review of court decisions in criminal proceedings in exceptional circumstances; the impact of the case law of the European Court of Human Rights on the case law of national courts and the justification of court decisions and the "balance of rights" in civil cases in its practice, the development of the doctrine of human rights protection; ECtHR standards on evidence and the burden of proof, the conclusions of the CCEJ and their reflection in judicial practice; judicial rule-making in the activities of European courts of cassation, etc. The issues raised are analyzed in the Ukrainian and international contexts from report to report, which, we hope, will be appreciated by every lawyer - both practitioners and theorists. As well as the fact that the depth of disclosure of each of the topics through the practice of application serves the development of law and contributes to the formation of the unity of judicial practice of the Supreme Court, the creation of case law is a contribution to rulemaking and lawmaking. The conversion of intellectual discourse into the practice of Ukrainian courts is an important step towards strengthening public confidence in the judiciary. And here the unifying force of the Supreme Court can be especially important, as the Chairman of the Supreme Court Valentyna Danishevska rightly remarked, speaking about the expectations of the society.

6. The Doctrine of Judicial Precedent

2019 ◽  
pp. 160-195
Author(s):  
James Holland ◽  
Julian Webb
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
Stare Decisis ◽  
Legal Principles ◽  
Legal Problems ◽  
The Supreme Court ◽  
Pure Case ◽  
The Impact ◽  
Court Of Appeal

This chapter examines the use of case law to solve legal problems. In the study and practice of law we seek to analyse legal principles; and the ‘principles’ in English law are derived from pure case law or from case law dealing with statutes. The discussions cover the idea of binding precedent (stare decisis); establishing the principle in a case; the mechanics of stare decisis; whether there are any other exceptions to the application of stare decisis to the Court of Appeal that have emerged since 1944; whether every case has to be heard by the Court of Appeal before it can proceed to the Supreme Court; precedent in the higher courts; other courts; and the impact of human rights legislation.

Protecting Freedom of and from Religion: Questioning the Law's Ability to Protect Against Unethical Conversions in Sri Lanka

2006 ◽  
Vol 1 (1) ◽  
pp. 41-73 ◽  
Author(s):  
Alexandra Owens
Keyword(s):  
Human Rights ◽  
Sri Lanka ◽  
Supreme Court ◽  
Legal System ◽  
Case Law ◽  
Recent Case ◽  
Religious Groups ◽  
Minority Religions ◽  
Unequal Treatment ◽  
The Right

AbstractIn recent years, the issue of improper and unethical conversions has attracted much attention in Sri Lanka. The issue is a highly emotive one, with members of the majority Buddhist population calling for measures to protect their religion from 'threats' from other minority religions, and members of these other religious groups expressing growing feelings of discrimination and unequal treatment. This article examines recent case law in the field of unethical conversions in Sri Lanka. An analysis of the decisions of Sri Lanka's Supreme Court relating to the incorporation of Christian organizations suggests that the legal system in Sri Lanka has struggled in its attempt to secure the right to freedom of religion and the right to manifest a religion for all people. Moreover, it is argued that the law has ultimately fuelled the growing religious tensions across the island. This article questions the law's ability to protect against unethical conversions in Sri Lanka, and therefore seeks to add weight to the calls for a non-legislative approach to the issue in order to allow for respect for the human rights of all concerned.

scholarly journals Are inspections conducted by selected administrative bodies compliant with the Constitution of the Slovak Republic and the European Convention on Human Rights?

2018 ◽  
Vol 2 (1) ◽  
pp. 70-79
Author(s):  
Lucia Smolková
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Supreme Court ◽  
Slovak Republic ◽  
Case Law ◽  
European Convention ◽  
Constitutional Court ◽  
Related Case ◽  
European Court

This paper analyses the case law of the Slovak Constitutional Court and the Slovak Supreme Court dealing with inspections conducted by selected Slovak administrative bodies – especially by the administrative bodies in the area of foodstuffs administration – where inspected companies complain that their rights guaranteed by the Slovak Constitution and the European Convention on Human Rights, namely the protection of their business premises, have been violated. The paper thus also deals with and analyses the related case law of the European Court of Human Rights and its (non)-application by the Slovak judicial bodies in their decision-making practice.

Russia

2018 ◽  
Author(s):  
Dmitri Bartenev ◽  
Ekaterina Evdokimova
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Case Law ◽  
Persons With Disabilities ◽  
System P ◽  
Critical Insight ◽  
Principles And Standards ◽  
Legal Concepts ◽  
The Impact ◽  
Insight Into

This chapter analyses how Russian courts have approached principles and standards of the Convention on the Rights of Persons with Disabilities (CRPD) since its ratification by Russia in 2012. Given the monist features of the Russian legal system, the Convention has been used in a relatively large number of judgments. In the majority of cases the CRPD has been used only to reinforce the standards already provided by domestic laws. In a few cases, however, judges interpreted the Convention provisions to establish new legal concepts or to apply progressively Russian laws concerning human rights of people with disabilities. The chapter provides a critical insight into different ways of interpreting (or failing to interpret) CRPD provisions used by Russian courts and it concludes that the impact of the CRPD on case law has so far been limited despite its implementation in the Russian legal system.

scholarly journals The networks of human rights and climate change: The State of the Netherlands v Stichting Urgenda, Supreme Court of the Netherlands, 20 December 2019 (19/00135)

2020 ◽  
Vol 22 (3) ◽  
pp. 227-234
Author(s):  
Ole W. Pedersen
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
The Netherlands ◽  
Supreme Court ◽  
Case Law ◽  
Case Note ◽  
Human Rights Law ◽  
Environmental Rights ◽  
Domestic Courts ◽  
Dutch Supreme

Climate change litigators are increasingly relying on a range of different jurisdictional avenues and legal regimes. The recent Urgenda decision by the Dutch Supreme Court provides a surprisingly rare snapshot of the relevance of human rights law  to climate change litigation. Focusing on the Supreme Court's reliance on the environmental rights case law from the ECHR, this case note argues that climate change and human rights adjudications takes the form of an adjudicatory network. This network creates spaces for domestic courts to develop contingent responses to emerging climate change claims.

Novelty in ECtHR Case Law on Torture, But It Is Not Enough—Reopening Domestic Proceedings to End Impunity

2017 ◽  
Author(s):  
Giuliana Ziccardi Capaldo
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Constitutional Law ◽  
Case Law ◽  
Criminal Proceedings ◽  
Full Effect ◽  
Unitary Approach ◽  
Jus Cogens ◽  
Evolutionary Interpretation

This editorial focuses on the violation of the jus cogens principle of non-impunity for acts of torture as occurred in the Cestaro v. Italy case, where the perpetrators went unpunished due to the statute of limitations. The Italian Supreme Court failed to apply this principle of global constitutional law. Nor did the ECtHR implement effective remedies against impunity. The author proposes reopening time-barred criminal proceedings as a useful tool against impunity to give full effect to ECtHR jurisprudence supporting the generally recognized principle of the non-applicability of statutory limitations to crimes against humanity.She stresses the need to enhance the effectiveness of the supervisory role of the ECtHR in ensuring the observance of jus cogens human rights principles—of which the ECHR “forms part”—through a unitary approach of courts to the fight against impunity based on an evolutionary interpretation of the Convention, which would provide more effective and integrated protection of such rights.

scholarly journals Court Decision Contra Legem or an Application of the Principle of Proportionality in Concreto?

Teisė ◽  
2021 ◽  
Vol 121 ◽  
pp. 27-44
Author(s):  
Asta Dambrauskaitė
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
National Court ◽  
Case Law ◽  
Legal Rule ◽  
Court Decision ◽  
European Convention ◽  
Court Decisions ◽  
Principle Of Proportionality

The article analyses cases of non-application of a national legal rule by cassation court judges hearing civil cases where, based on the analysis of concrete circumstances, the application of such a rule, in the opinion of judges, would lead to an infringement of the principle of proportionality and the European Convention on Human Rights. Decisions of two courts of cassation belonging to the continental law tradition (the Lithuanian Supreme Court and the French Court of Cassation) illustrate such a control of the application of the principle of proportionality in concreto. While national law is subject to an increasing impact of the case law of supranational courts, the legitimacy of such national court decisions is discussed also in the context of the transformations taking place in regard to the role of a judge.

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