scholarly journals The right to the truth of victims of a repressive regime in the international public law

Temida ◽  
2016 ◽  
Vol 19 (3-4) ◽  
pp. 517-538
Author(s):  
Miroslav Stevanovic
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Public Law ◽  
The State ◽  
International Courts ◽  
Legal Principle ◽  
Break Up ◽  
Repressive Regime ◽  
The Right ◽  
International Instruments

The break-up with the repressive regime, and above all rehabilitation of the consequences for victims, includes determining the truth about the character, carriers and methods of systematic violation of basic human rights. Many international instruments, which deal with the problem of victims of repressive regimes and the state discontinuity with repressive governance, proclaim the concept of the right to the truth. The paper deals with the normative contents of the right to the truth and different aspects of this concept that international courts recognize in relation to victims of repressive regimes. The results of the analysis indicate that the concept of the right to the truth sets before the states requirements to try to provide institutional preconditions for individual and collective victims to find out and access the truth, but that the case-law does not recognize as enforceable any authorisation which stems from the right to the truth. Currently, the right to the truth presents a principle that relates to realising some internationally protected rights of a person, but there are indications that it has been normatively shaping in order to become a legal principle of transition.

22. The Right to Free Elections

2017 ◽  
Author(s):  
Bernadette Rainey ◽  
Elizabeth Wicks ◽  
Andclare Ovey
Keyword(s):  
Human Rights ◽  
Electoral Systems ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
Democratic Legitimacy ◽  
Right To Vote ◽  
The Right

This chapter examines the protection of the right to free elections in the European Convention on Human Rights (ECHR). It discusses the provisions of Article 3 of Protocol 1 and highlights the increasing number of complaints of violations of this Article, which indicates that the Strasbourg Court is giving fresh emphasis to this provision as essential to the foundations of democratic legitimacy of the State. The chapter also discusses case-law on the nature of the legislature, electoral systems, the right to vote, and the right to stand for election.

scholarly journals Pursuing the Right to an Effective Remedy for Human Rights Violation(s) In Cameroon: The Need for Legislative Reform

2017 ◽  
Vol 20 ◽  
pp. 1-29
Author(s):  
Avitus A Agbor
Keyword(s):  
Human Rights ◽  
The State ◽  
Equal Protection ◽  
State Party ◽  
Legislative Reform ◽  
Domestic Legislation ◽  
Effective Remedy ◽  
The Right ◽  
International Instruments ◽  
Human Rights Violation

Undoubtedly, global and regional human rights instruments clearly entrench the right to an effective remedy for a human rights violation. The substantive nature of the right to an effective remedy makes it relevant to the realisation of the right to equality as well as the right to equal protection under the law. Cameroon, as a State Party to most of these human rights instruments, is bound to adopt measures aimed at giving effect to the rights contained therein. One of such steps, in my opinion, is the enactment of domestic legislation that defines the content of these rights; stipulates the forums where remedies for human violations could be pursued; specifies what kinds of remedies a victim of a human rights violation would get at the end; and lastly, defines who can access such forums. Unfortunately, the lack of domestic legislation that meets these requirements means the right to an effective remedy for a human rights violation in Cameroon cannot be realised. It is argued in this paper that the critical nature of the right to a remedy, given its bearing on other substantive human rights as well as the protection and promotion of human rights, warrants progressive efforts undertaken by the State in order to give effect to this right. Therefore, the sheer lack of a legislative instrument in this regard makes it very difficult for the pursuit of a right to a remedy when there is a violation of human rights. As evidenced by legislative developments in numerous African States that are States Parties to these international instruments, there is growing consensus that the enactment of domestic legislation that answers the questions of content; forums; outcomes and access is a positive and vital step towards the realisation of the right to an effective remedy for a human rights violation.     

Part II The Right to Know, A General Principles, Principle 2 The Inalienable Right to the Truth

2018 ◽  
Author(s):  
Groome Dermot
Keyword(s):  
Human Rights ◽  
International Law ◽  
Transitional Justice ◽  
Truth Commissions ◽  
Right To Know ◽  
International Courts ◽  
International Convention ◽  
The Right To Know ◽  
The Right ◽  
International Instruments

Principle 2 is concerned with the inalienable right to truth, a right that arises from the right to know and obliges governments to establish mechanisms to facilitate the revelation of the truth about serious violations of human rights. The right to truth has been explicitly incorporated into several international instruments and, in 2010, became expressly guaranteed in the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). In practice, the right to truth is realized through laws enabling requests for state-held information; archives; truth commissions; national and international courts; and human rights commissions. After providing a contextual and historical overview of Principle 2, this chapter describes its normative (legal/ethical) foundation, focusing on how its interpretation is influenced by international law and how it relates to notions of transitional justice. It also analyzes the applications of the Principle in practice.

scholarly journals Investigations on the Use of Limitations to Freedom of Religion or Belief in Brazil

2020 ◽  
Vol 15 (1-2) ◽  
pp. 77-95
Author(s):  
Thiago Alves Pinto ◽  
Rodrigo Vitorino Souza Alves
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Freedom Of Religion ◽  
Public Officials ◽  
Human Rights Treaties ◽  
Domestic Legislation ◽  
Domestic Courts ◽  
Low Levels ◽  
The Right ◽  
International Instruments

Abstract The present article analyses cases from top Brazilian courts and has received contributions from several scholars, practitioners, and public officials to better understand the use of limitations to freedom of religion or belief in the country. The Brazilian Constitution provides for the right to freedom of religion or belief as a fundamental right, and other domestic legislation regulate the right, including those implementing international human rights treaties that Brazil has ratified. These laws are easily accessible. Nevertheless, domestic courts seldom rely on such international instruments or the case-law of international bodies in their judgments. Therefore, although these instruments are in force in Brazil, domestic courts do not expressly use or refer to the clauses of permissible limitations of the relevant international and regional human rights instruments, creating a scenario with low levels of legal certainty for those seeking the protection of the right to freedom of religion or belief.

scholarly journals Od predmeta Mccann do predmeta F.J.M.

2020 ◽  
Vol 41 (1) ◽  
pp. 113-132
Author(s):  
Gabrijela Mihelčić ◽  
Maša Marochini Zrinski ◽  
Renata Šantek
Keyword(s):  
Human Rights ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Proportionality Test ◽  
The Right ◽  
Analyse Case

The authors discuss and analyse case law of the European Court of Human Rights regarding the right to respect for home under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and with respect the issue of proportionality. In the paper, the proportionality category was viewed as a criterion for securing protection and as a material precondition for deciding whether the State party's interference with the right to respect for home was proportionate. The cases in which the applicant's eviction occurred after national proceedings for the enforcement of mortgages were addressed. In this context, the genesis of the proportionality category was analysed, from the cases where the Court found it necessary to examine the proportionality to the cases where the Court did not consider the proportionality test necessary.

scholarly journals Proportionality of Interference with the Right to Peaceful Enjoyment of Property During the Seizure of Property in Criminal Proceedings in Ukraine

2020 ◽  
pp. 246-264
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Case Law ◽  
Criminal Proceedings ◽  
Human Right ◽  
European Court ◽  
Protection Of Human Rights ◽  
European Standards ◽  
The Right ◽  
International Instruments

This article considers relevant science and law enforcement practice issues of state intervention’s legitimacy in the right to peaceful property enjoyment in criminal proceedings during property seizure. These issues are considered everywhere through international instruments’ prism, particularly the Convention for the Protection of Human Rights (ECHR) and Fundamental Freedoms, Article 1 of Protocol No. 1 to the Convention and the ECtHR case-law. Based on the ECtHR case law, the authors analyze the conditions under which the state may interfere in exercising a protected right, often called criteria for intervention. Based on the fact restrictions are permissible if they are prescribed by law, necessary in a democratic society and pursue a legitimate goal, the authors consider these conditions through the lens of national law enforcement practices of Ukrainian criminal proceedings. The authors emphasize the relevance of these criteria of the legality of individual rights restriction in criminal proceedings since when applying for property seizure, the Ukrainian legislator requires investigating judges to consider reasonableness and restriction proportionality of property rights, and apply the least onerous seizure method, not suspend or excessively restrict a person’s lawful business activities, or other consequences significantly affecting others’ interests. Due to the amendment of the Ukrainian criminal procedure legislation, the practice is slowly approaching the European Court of Human Rights practice’s European standards. However, proper systematic, logical and consistent court decisions limiting the human right to peaceful property possession remain critical. Based on the study, the authors offer a model of logical reasoning, following which the investigating judges can correctly formulate the motivational part of the decision to satisfy or deny the request for property seizure. Particular attention is paid to the reasonableness, suitability, necessity, and proportionality of the means of restricting the right to peaceful enjoyment of the property and describes each of them.

22. The Right to Free Elections

2020 ◽  
pp. 610-628
Author(s):  
Bernadette Rainey ◽  
Pamela McCormick ◽  
Clare Ovey
Keyword(s):  
Human Rights ◽  
Electoral Systems ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
Democratic Legitimacy ◽  
Right To Vote ◽  
The Right

This chapter examines the protection of the right to free elections in the European Convention on Human Rights (ECHR). It discusses the provisions of Article 3 of Protocol 1 and highlights the increasing number of complaints of violations of this Article, which indicates that the Strasbourg Court is giving fresh emphasis to this provision as essential to the foundations of democratic legitimacy of the State. The chapter also discusses case-law on the nature of the legislature, the requirements of Article 3 in relation to the choice of electoral systems, the right to vote, and the right to stand for election.

scholarly journals Kebijakan Travel Warning dan Pembatasan Hak Berwisata

2018 ◽  
Vol 13 (1) ◽  
pp. 24-36
Author(s):  
I Made Budi Arsika ◽  
Ida Bagus Surya Dharma Jaya ◽  
Ni Gusti Ayu Dyah Satyawati
Keyword(s):  
Human Rights ◽  
The State ◽  
Fundamental Rights ◽  
Destination Country ◽  
Third Generation ◽  
National Legislation ◽  
The Right ◽  
International Instruments

Penerbitan travel warning oleh suatu negara secara faktual berdampak pada tingkat kunjungan wisata ke negara yang dituju. Penelitian ini bertujuan untuk menganalisis mengenai praktik negara-negara, termasuk Indonesia, dalam menerapkan kebijakan travel warning. Selain itu, juga secara spesifik akan membahas korelasi antara kebijakan travel warning dengan eksistensi hak berwisata (right to tourism) dalam kerangka hak asasi manusia (HAM). Jenis penelitian ini adalah yuridis-normatif yang utamanya menganalisis peraturan perundang-undangan nasional Indonesia dan instrumen internasional yang relevan. Hasil penelitian ini menunjukkan bahwa praktik negara-negara dalam dalam penerbitan kebijakan travel warning menunjukkan variasi yang relatif beragam, terutama berkaitan dengan identifikasi risiko dan lembaga yang berwenang untuk menyampaikan imbauan perjalanan. Berkaitan dengan eksistensi hak berwisata (right to tourism) dalam kerangka HAM, kebijakan travel warning merupakan implementasi dari kewajiban negara untuk melindungi warga negaranya ketika mereka berada di luar negeri sekaligus merefleksikan tindakan negara untuk menjamin terpenuhinya hak-hak mendasar warga negaranya. Adapun pembatasan hak berwisata oleh negara sesungguhnya dilakukan dalam rangka menjamin terpenuhinya jenis HAM lain yang jauh lebih mendasar dibandingkan dengan pemenuhan hak berwisata yang justru masih dikategorikan sebagai HAM generasi ketiga dan eksistensinya masih diperdebatkan.The publication of travel warning by a country factually impacts the level of tourist visit to the destination country. This study aims to analyze the practice of countries, including Indonesia, in applying travel warning policy. In addition, also specifically will discuss the correlation between travel warning policy with the existence of rights of travel (right to tourism) within the framework of human rights (HAM). This type of research is juridical-normative which primarily analyzes Indonesian national legislation and relevant international instruments. The results of this study indicate that the practice of countries in the issuance of travel warning policy shows a relatively diverse variety, mainly related to the identification of risks and institutions authorized to deliver travel appeals. In relation to the existence of the right of tourism within the human rights framework, the travel warning policy is the implementation of the state’s obligation to protect its citizens while abroad while reflecting the state’s actions to ensure the fulfillment of the fundamental rights of its citizens. The limitation of travel rights by the state is actually done in order to guarantee the fulfillment of other types of human rights that are far more fundamental than the fulfillment of travel rights that are still categorized as third-generation human rights and its existence is still disputed.

scholarly journals THE RIGHT TO JURIDICAL PERSONALITY OF ARBITRARILY DETAINED AND UNIDENTIFIED MIGRANTS AFTER THE CASE OF THE GUAYUBÍN MASSACRE

2020 ◽  
pp. 429-447
Author(s):  
Christopher Campbell-Duruflé
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Dominican Republic ◽  
Case Law ◽  
The State ◽  
European Court ◽  
Full Effect ◽  
Regional Specificity ◽  
The Right ◽  
Formal Recognition

In the Case of Nadege Dorzema et al v Dominican Republic, the Inter-American Court of Human Rights declined to make a finding of violation of Article 3 of the American Convention on Human Rights, the right to juridical personality. The author provides an analysis of this aspect of the judgment and argues that future cases of arbitrary detention of migrants, when these are not duly identified, provide strong bases for concluding in a violation of this right. The author shows that such circumstances correspond to the cases previously decided under article 3 of the American Convention, namely where the State puts individuals in a position where they are prevented from enjoying their civil rights, and were the State refuses to emit formal recognition of individuals or peoples. The author further shows how this conclusion is supported by the case law of the European Court of Human Rights regarding collective expulsions of migrants, because of this court’s special emphasis on their right to be duly identified and to an individualised evaluation of their case. The author concludes that finding a violation of Article 3 of the American Convention in future similar cases is necessary to give full meaning to this treaty and full effect to its regional specificity.

scholarly journals Some Approaches to Define the Concept of “Access to Justice”

2020 ◽  
Vol 11 (11) ◽  
pp. 208-213
Author(s):  
Sverba Y. I.
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
The State ◽  
Access To Justice ◽  
Constitutional Court ◽  
Legal Aid ◽  
Financial Barriers ◽  
European Court ◽  
The Right

The article is dedicated to the analysis of the concept of "access to justice". The national legislation, the case law of the Constitutional Court of Ukraine and the European Court of Human Rights, as well as academic papers have been analyzed by the author. The author concludes that there are at least two approaches to define the concept of "access to justice": broadside and restricted one. The latter is inherent in Ukraine, since the Constitution stipulates that justice in Ukraine is exercised by the courts exclusively. The case law of the European Court of Human Rights explored in this article demonstrates a broad interpretation of the right to a fair trial, as quasi-judicial authorities are often empowered to make decisions that directly affect a person's rights and obligations. Foreign researchers are more progressive in determining the concept of access to justice: the latter is considered as an intention to resolve person's legal problems, not limited with access to classical judicial protection. Even though the access to justice concept is not legally defined, it includes the core elements as legal awareness of person’s rights; lack of financial barriers to access to the court; the right to free legal aid guaranteed by the state; a fair and independent court; a reasonable time to settle a dispute, as well as the enforcement of the judgment. The state could ensure the effective access to justice only if all of the said elements are implemented. At the same time, the states have both positive (to provide the right to free legal aid) and negative obligations (not to interfere with court activities, etc.). Keywords: access to justice, justice, right to a fair trial, rule

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