Reconciling Extradition with Human Rights

1998 ◽  
Vol 92 (2) ◽  
pp. 187-212 ◽  
Author(s):  
John Dugard ◽  
Christine Van den Wyngaert
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Crime ◽  
Fundamental Rights ◽  
European Convention ◽  
General Interest ◽  
Law And Order ◽  
European Court ◽  
Human Rights Movement ◽  
New Institutions

The human rights movement, which has had such a powerful impact on international law and relations in the post—World War II period, has in recent years turned its attention to extradition. Treaties, executive acts and judicial decisions on extradition have all been affected. At the same time, transnational and international crime has increased. The international community has responded by creating new institutions and expanding the network of bilateral and multilateral treaties designed to outlaw transnational crime, promote extradition, and authorize mutual assistance. Inevitably, there is a tension between the claim for the inclusion of human rights in the extradition process and the demand for more effective international cooperation in the suppression of crime, which resembles the tension in many national legal systems between the “law and order” and human rights approaches to criminal justice. As in domestic society, it is necessary to strike a balance between the two so as to establish a system in which crime is suppressed and human rights are respected. This was stressed by the European Court of Human Rights in the leading case on extradition and human rights, Soering v. United Kingdom, when it stated: [I]nherent in the whole of the [European] Convention [on Human Rights] is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interests of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.

scholarly journals The Reception of the ECHR in National Legal Orders

2008 ◽  
Author(s):  
Alec Stone Sweet ◽  
Helen Keller
Keyword(s):  
Human Rights ◽  
Case Studies ◽  
Legal System ◽  
Fundamental Rights ◽  
European Convention ◽  
Rights Protection ◽  
European Court ◽  
Intractable Problems ◽  
The Face ◽  
New Institutions

This chapter begins by discussing the European Convention on Human Rights (ECHR). Established in 1953, the ECHR created a basic catalogue of rights binding on the signatories, and new institutions charged with monitoring and enforcing compliance. The ECHR has since evolved into an intricate legal system. The High Contracting Parties have steadily upgraded the regime's scope and capacities, in successive treaty revisions. They have added new rights, enhanced the powers of the European Court of Human Rights (ECtHR), and strengthened the links between individual applicants and the regime. Today, the Court is an important, autonomous source of authority on the nature and content of fundamental rights in Europe. In addition to providing justice in individual cases, it works to identify and to consolidate universal standards of rights protection, in the face of wide national diversity and a steady stream of seemingly intractable problems. The methodology used to analyze the case studies presented in the subsequent chapters is described.

scholarly journals LIBERALISM, SOCIAL DEMOCRACY AND THE VALUE OF PROPERTY UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS

2010 ◽  
Vol 59 (4) ◽  
pp. 1055-1078 ◽  
Author(s):  
Tom Allen
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Legal Person ◽  
General Interest ◽  
The Public ◽  
European Court ◽  
Full Compensation ◽  
The Right ◽  
Fair Balance

In most of Europe, expropriation must comply with the standards set under European human rights law. Article 1 of the First Protocol (‘P1-1’) to the European Convention on Human Rights declares that ‘every natural or legal person is entitled to the peaceful enjoyment of his possessions.’ The European Court of Human Rights has stated that the right would be ‘largely illusory and ineffective’ if it did not guarantee full compensation in all but exceptional circumstances.1It is quite clear, however, that this was not the belief of at least some of the States that had signed it when it came into force in 1954. P1-1 makes no reference to compensation. An interference must be lawful, and in the public or general interest, but there is nothing that expressly requires compensation. Nevertheless, the Court has declared that any interference with the right to the peaceful enjoyment of possessions must strike a ‘‘fair balance’ between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights’,2and this means that expropriation without compensation that is reasonably related to the value of the property would normally violate the owner's rights under P1-1.3

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.

22. Europe

2017 ◽  
Author(s):  
Greer Steven
Keyword(s):  
Human Rights ◽  
Historical Development ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Council Of Europe ◽  
European Court ◽  
Key Characteristics ◽  
Charter Of Fundamental Rights ◽  
State Organizations

This chapter examines the origins, historical development, and key characteristics of the various inter-state organizations engaged in human rights activities in Europe. Having briefly described the Organization for Security and Cooperation in Europe, it examines the Council of Europe and the European Union, including the European Convention on Human Rights, the European Court of Human Rights and the EU Charter of Fundamental Rights.

18. Human Rights II: Emergent Principles

2018 ◽  
Author(s):  
Ian Loveland
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
Freedom Of Expression ◽  
Political Order ◽  
European Convention ◽  
World War ◽  
International Treaty ◽  
European Court ◽  
English Law

This chapter presents an overview of the European Convention on Human Rights, an International treaty originating in the reconstruction of Europe’s political order following World War II. The chapter is organised as follows. Section I discusses the main procedural and substantive features of the Convention itself, whilst Section II assesses its status and use in English law up until (approximately) the early-1990s. Sections III and IV examine the leading judgments of the European Court on Human Rights in the areas of privacy and freedom of expression.

Effectiveness of EU law and protection of fundamental rights

2018 ◽  
Vol 9 (1) ◽  
pp. 24-30 ◽  
Author(s):  
Rosaria Sicurella
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Constitutional Court ◽  
Eu Law ◽  
Critical View ◽  
Court Of Justice ◽  
European Court ◽  
Significant Step ◽  
Principle Of Legality

The decision of the Court of Justice in the M.A.S. and M.B. case marks a very significant step forward in the Taricco saga. It clearly shows the intention of the European Court to tone down the confrontation with the Italian Constitutional Court, while at the same time maintaining the most relevant achievement of the decision in the Taricco case, that is to say the fact to consider Article 325 TFEU as having direct effect. The author expresses quite a critical view on the solution adopted by the ECJ which finally results in a sort of “flexibilization” of the principle of legality at EU level in order to meet some of the claims by the Italian Constitutional Court. In the author's opinion, such a solution risks to undermine the overall coherence and soundness of the protection of fundamental rights at EU level, although it can appear at a first glance to boost the legality principle. A better solution could have been to develop a different reasoning relying on rights in the Charter other that the nullum crimen principle, and avoid to touch at the well-established scope of this principle as established in Article 49 Charter and also in Article 7 of the European Convention on Human Rights.

The Past, Present and Future of the Ne Bis In Idem Dialogue between the Court of Justice of the European Union and the European Court of Human Rights: The Cases of Menci, Garlsson and Di Puma

2018 ◽  
Vol 11 (2) ◽  
pp. 55-84
Author(s):  
Max Vetzo
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Market Abuse ◽  
The Past ◽  
Court Of Justice ◽  
European Court ◽  
Ne Bis In Idem

The cases of Menci (C-524/15), Garlsson (C-537/16) and Di Puma (C-596/16 and C-597/16) deal with the duplication of criminal and punitive administrative proceedings for the same conduct in the area of VAT and market abuse. The Court of Justice of the European Union (CJEU) held that this duplication of proceedings constitutes a limitation of the ne bis in idem principle of Article 50 of the Charter of Fundamental Rights (Charter). This infringement is only justified if the requirements of the limitation clause of Article 52(1) of the Charter are met. The judgments were highly anticipated as they constitute the response of the CJEU to the judgment in A and B v Norway delivered by the European Court of Human Rights (ECtHR), in which the ECtHR lowered the level of protection afforded by the ne bis in idem principle of Article 4 of Protocol No. 7 to the European Convention of Human Rights (A4P7 ECHR). While there are differences between the approaches taken by both courts, it appears that the reasoning of the CJEU in the judgments largely mirrors that of the ECtHR in A and B v Norway. This article frames the judgments in terms of the dialogue between the CJEU and ECtHR on the ne bis in idem principle. It does so chronologically, by focusing on the past, present and future of the ne bis in idem dialogue between both European courts.

scholarly journals Concept of abuse of procedural rights: general theoretical analysis (based on the case-law of the European Court of Human Rights)

2021 ◽  
pp. 166-175
Author(s):  
Taras Pashuk
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
European Convention ◽  
Judicial Interpretation ◽  
Judicial Practice ◽  
European Court ◽  
Wide Range ◽  
Restrictive Measures ◽  
Procedural Rights

The author analyses the concept of abuse of procedural rights with reference to the case-law of the European Court of Human Rights (ECtHR). In their applications to the ECtHR the applicants often claim that the violations the European Convention on Human Rights (the ECHR) were accompanied by various abuses by the domestic authorities. Such abuses may be of procedural nature and those matters are examined by the ECtHR quite often because the Convention is primarily aimed at protecting an individual from State arbitrariness. At the same time, the problem of abuse of procedural rights may arise before the ECtHR, when such acts were committed by an applicant. This aspect of the problem is being examined in the present article. In this regard the issue of abuse of procedural rights appears in the case-law of the ECtHR in the context of the complaints concerning the alleged violations of rights under the ECHR. This may happen when the State measures to address such a negative phenomenon (for example, penalty for the abuse of procedural right) may at the same time affect the fundamental rights under the Convention. Apart from that, this issue may arise in the context of the application of restrictive measures by the ECtHR itself due to applicants’ abuse of their right of individual petition to the ECtHR. The main features of the abuse of procedural rights arising from the case-law of the ECtHR are the following: (1) using the procedural right contrary to its purpose (in view of multiple purposes of human conduct, this condition implies the need to establish a dominant purpose in the procedural conduct of the person); (2) the presence of damage resulting from such procedural conduct; (3) the exceptional nature of such procedural conduct (implying the necessity to focus on the explicit and obvious facts of procedural abuses). The combination of these features should be used cumulatively in order to determine correctly the limits of applicability of this concept and distinguish it from other related concepts, such as legitimate use of procedural right, refusal to use the procedural right, good-faith mistake in procedural conduct. In addition, the lack of legislative regulation of this institution in the law on criminal procedure of Ukraine calls for the development of judicial practice under Article 185-3 of the Code of Administrative Offenses of Ukraine as regards the administrative liability for contempt of court. It is argued that the provisions of Article 185-3 of that Code, if given appropriate judicial interpretation, can cover a wide range of procedural abuses. Keywords: abuse of procedural right, realisation of subjective right, contempt of court.

scholarly journals Challenge of Advocate’s Profession in the Age of Money Laundering, Terrorism Financing and Proliferation Evasion “Not to slip with a fragile burden!"

2021 ◽  
Vol 3 (21) ◽  
pp. 139-148
Author(s):  
Sandra Joksta
Keyword(s):  
Human Rights ◽  
Money Laundering ◽  
Fundamental Rights ◽  
European Convention ◽  
Legal Certainty ◽  
European Court ◽  
Fundamental Freedoms ◽  
Terrorism Financing ◽  
Protection Of Human Rights ◽  
Joint Connection

Ability to perform advocate’s duty is irrevocably linked to advocate’s immunity concept. The article provides an insight about the scope of advocate’s immunity concept in the age of money laundering. The purpose of it is to analyse the modern tendency to overstep the red lines guarding this concept, when applying legal enactments for money laundering evasion purposes. In the article, the judgment of 19 November 2020 in case “Klaus Mueller vs Germany” made by European Court of Human Rights, is analysed, where the issue of advocate’s immunity was considered in joint connection with the Clause 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The sometimes-exaggerated need for transparency at all costs conflicts with privacy protection aspects of individuals. Legislative enactments of money laundering and terrorism financing and proliferation evasion systemically contradicts Law of Advocacy and causes collision with other norms of higher legal rank such as fundamental rights enshrined in the European Convention on Human Rights to fair trial and justice and rights to choose an occupation and engage in work. Keywords: advocate’s immunity concept, advocate’s rights to professional secret and confidentiality, legal certainty, money laundering and terrorism financing and proliferation evasion, principle of sound legislation, uncertain privilege.

scholarly journals Analysis of the legal positions of the European Court of Human Rights on the application of the euthanasia procedure

2021 ◽  
pp. 107-112
Author(s):  
O.O. Shafi ◽  
K.V. Lyashenko
Keyword(s):  
Human Rights ◽  
Life Support ◽  
Individual Case ◽  
The State ◽  
Private Life ◽  
Fundamental Rights ◽  
European Convention ◽  
Role Of The State ◽  
European Court ◽  
Artificial Life Support

The article examines the problems of euthanasia and the realization of the human right to suicide with the help of others in the context of the European Convention for the Protection of Human Rights and Fundamental Rights, the case law of the European Court of Human Rights. The authors focused on finding the necessary compromise between protecting the patient's right to life, which is a positive commitment of the state, and protecting the patient's right to respect for private life and individual independence. The main positions of the European Court of Human Rights on the possibility of use in euthanasia and in which cases are analyzed step by step. In each case, it was described under what conditions the applicants had applied to the Court and what the difference was between the cases. It is emphasized what the Court relied on in resolving each individual case. It is stated how the Court interprets the possibility of applying Article 2 of the Convention in a negative light and in what cases and under what conditions the Court considers it necessary to apply the principle of “ratione personae”. It is indicated what is the main difference between active and passive euthanasia, and in which countries any of the forms of termination of life of a sick person is allowed, regulated and clearly regulated. It is noted that the issue of application or discontinuation of treatment was considered taking into account many objective factors that are taken into account in each case. Also, attention is paid to the analysis of the court's position on the importance of the role of the state in matters of termination of life, where countries should be given discretion in deciding on disconnection from artificial life support. Separately, the main risks of legitimizing euthanasia are emphasized, in particular, the authors point to the need to improve and comply with the imperative norms in each country to ensure the fulfillment of the positive responsibilities of each state.

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