scholarly journals Several Aspects of Procedures in Kosovo Constitutional Court Regarding Fair Trial

2020 ◽  
Vol 3 (3) ◽  
Author(s):  
Mirvete Uka
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Human Freedom ◽  
European Council ◽  
European Convention ◽  
Constitutional Court ◽  
European Court ◽  
Protection Of Human Rights

Kosova is not a member of European Council and consequently as signatory of the European Convention for Human Rights and Freedoms, mainly its citizens cannot make complaints at the Court for Human Freedom and Rights in Strasbourg even when they claim that their rights are violated by Courts or other Institutions in Kosovo. Therefore the final authority that deals with these claims is Constitutional Court which its decisions bases on practice of European Court for Protection of Human Rights and Freedoms. Kosovo citizens more and more are using this right and are directing to the Constitutional Court in cases when they claim that their rights are violated.

The European Court of Human Rights: Sabeh El Leil v. France

2012 ◽  
Vol 51 (1) ◽  
pp. 1-16
Author(s):  
Gilles Cuniberti
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Sovereign Immunity ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right ◽  
Wrongful Dismissal

In Sabeh el Leil v. France, the European Court of Human Rights (‘‘ECtHR’’ or ‘‘the Court’’) ruled for the second time that a contracting state had violated the right to a fair trial afforded by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘‘Convention’’) by denying access to its courts to an embassy employee suing for wrongful dismissal on the grounds that the employer enjoyed sovereign immunity. The ECtHR had first ruled so a year earlier in Cudak v. Lithuania, where the plaintiff was also an embassy employee.

scholarly journals UKRAINIAN COURTS AND THE PROTECTION OF HUMAN RIGHTS

2016 ◽  
pp. 68-75
Author(s):  
Victor Muraviov
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Constitutional Court ◽  
European Court ◽  
The Supreme Court ◽  
Protection Of Human Rights ◽  
Efficient Protection ◽  
Independent Functioning ◽  
Positive Effect

The article is focused on the interaction between the Ukrainian courts of general jurisdiction and the Constitutional Court of Ukraine in the area of the protection of human rights. There is emphasized that their independent functioning does not provide for the efficient protection of individual rights and freedoms and significantly increases the number of the judicial recourses of the Ukrainian citizens to the European Court of Human Rights. Particular attention is paid to the role of the Constitutional Court of Ukraine in the protection of human rights, which combines the functions of the constitutional control and constitutional supervision. Its activities are focused on the official interpretation on the Constitution of Ukraine. Attention is paid to the list those who may bring the actions before the Constitutional Court, which includes apart from the state bodies the natural and legal persons. The is mentioning of the issues on initiating of proceedings before the Court. Also broadly is analyzed Constitutional Court’ activities concerning the interpretation of the Constitution in the light of the European Convention on Human Rights and other international agreements dealing with the protection of human rights. The article stresses on the contribution of other Ukrainian courts in the affirmation of the constitutional concept of the protection of human rights and freedoms in Ukraine. The majority of resolutions of such highest judicial body in the system of courts of general jurisdiction as the Supreme Court of Ukraine concern the judgments of the European Court of Human Rights. As it is emphasized in the article the independent functioning on the Constitutional Court and the courts of general jurisdiction does not provide for the cooperation between both branches of courts. Courts of general jurisdiction feel free as to the appeal to the Constitutional Court. Even when such appeals are directed to Constitutional Court the decisions of the letter are not binding to the courts of general jurisdiction. Special attention is paid to the introduction of the institute of constitutional complaint and its positive effect on the judicial mechanism of the protection of human rights in Ukraine.

scholarly journals НЕКИ АСПЕКТИ ПРАВА НА СУДСКУ ЗАШТИТУ ЛИЦА СА МЕНТАЛНИМ СМЕТЊАМА У ПОСТУПКУ ЛИШЕЊА ПОСЛОВНЕ СПОСОБНОСТИ - ПРАКСА ЕВРОПСКОГ СУДА ЗА ЉУДСКА ПРАВА

TEME ◽  
2019 ◽  
pp. 581
Author(s):  
Dušica Palačković ◽  
Sanda Ćorac
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Legal Capacity ◽  
Mental Disabilities ◽  
Persons With Disabilities ◽  
European Court ◽  
Key Concepts ◽  
Protection Of Human Rights ◽  
The Right

The paper analyzes certain important aspects of the procedural position of persons with mental disabilities in the procedures for deprivation of legal capacity. Regardless of the normative framework, both international and national, which largely protects the rights of this sensitive group of people, a significant number of cases before the European Court of Human Rights and decisions in which Contracting States are declared responsible indicate that there is a problem of their procedural position that is principally conditioned by applying (or not applying) the procedural safeguards provided by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, or the right to a fair trial. Although this right is guaranteed for all civil and criminal procedures and for all persons, the special features of persons with mental disabilities also determine the particularities in the application of the right to a fair trial in the court procedures in which these persons are involved. Therefore, we could talk about formulated specific standards that essentially elaborate one of the key concepts of the UN Convention on the Rights of Persons with Disabilities - "reasonable adaptation", as well as a direct link to the need for a specific application of the already mentioned Article 6 of the European Convention. The standards that follow from the application of Article 6 are numerous and the analysis of all from the aspect of protecting the rights of persons with mental disabilities is not possible in the paper of this volume, and therefore, special attention was given to the right of these persons to initiate and conduct the procedures for deprivation of legal capacity, personal participation and representation in that procedures.

scholarly journals Doprinos raspravi o načelu jednakosti procesnih sredstava

2017 ◽  
Vol 38 (1) ◽  
pp. 339-352
Author(s):  
Dejan Bodul ◽  
Sanja Grbić
Keyword(s):  
Human Rights ◽  
Equal Opportunity ◽  
Fair Trial ◽  
Essential Elements ◽  
European Convention ◽  
Constitutional Court ◽  
Structural Problems ◽  
Official Gazette ◽  
European Court ◽  
The Right

The principle of equality of arms requires that each party to the proceedings should have equal opportunity to present facts and support them with their evidence without of putting any party in a substantial disadvantage. (Case LB INTERFINANZ AG against Croatian, judgment, 27.03.2008 ., application no. 29549/04.). In terms of the procedural balance between the parties, this principle constitutes one of the essential elements of the right to a fair trial. However, the question of equality of arms is again raised in Bankruptcy Act (Official Gazette, 71/15. hereinafter: BA). BA has kept solution in which the creditor is able to initiate bankruptcy proceedings if he makes the existence of its claims likely possible and the existence of the reasons for bankruptcy. However, the legislator has retained the disputed solution in which the probability of the existence of the creditor claim can be proven by non-final judicial or non-final administrative decisions. As there are different solutions in terms of the above mentioned assumptions, the authors will focus on general statements based on comparative experiences, without detail consideration of the numerous and specific comparative solutions. This paper discusses the practical, but also theoretical implications of positive legal solutions specifically analysing the law of the European Court of Human Rights (ECtHR) in proceedings according to Art. 6 (right to a fair trial) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), because we assume that these information play key role in the understanding of the issue concerned. In addition, authors are trying to get the answer on the question will overall unsatisfied indicators of bankruptcy proceedings, which are the result of structural problems, need “stringent” procedural measures to resolve that situation. The subject of the paper is also a nomotehnical dimension of this issue, because the same solution was in the old Bankruptcy Act (Official Gazette, 44/96, 29/99, 129/00, 123/03, 82/06, 116/10, 25/12, and 45/13.) which suspended the Constitutional Court.

scholarly journals Ensuring the Right to a Fair Trial Pre-Trial Stage Criminal Process

2016 ◽  
Vol 3 (4) ◽  
pp. 133-141
Author(s):  
A A Tymoshenko
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Access To Justice ◽  
Criminal Process ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

The article considers the problem of respect for the right to a fair trial at the pre-trial stage of the criminal process. It is pro- posed to take into account the secondary role of pre-trial activity, whose task is to prepare materials for trial. This competitiveness for the prosecution is not allowed. Analysis of the European Court of Human Rights indicates sufficient blurring boundaries that separate statement of the facts of the presence or absence of a violation of Art. 6 of the European Convention «On Protection of Human Rights and Fundamental Freedoms» (the right to a fair trial). But in any case the decision is motivated by the observance of guarantees of access to justice. Hence, any infringement of the possibi

PRAVO NA POŠTOVANjE DOMA U PRAKSI USTAVNOG SUDA REPUBLIKE SRBIJE (UTICAJ PRAKSE EVROPSKOG SUDA ZA LjUDSKA PRAVA)

2021 ◽  
pp. 511-531
Author(s):  
Jelena Čanović ◽  
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Constitutional Court ◽  
Controversial Issues ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Republic ◽  
European Standards ◽  
The Right

A special regime for the protection of the right to respect for home is provided with the Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. With ratification of this Convention, the Republic of Serbia has undertaken the obligation to respect and effectively implement the rights guaranteed by the European Convention as a "minimum European standard". The role of the European Court of Human Rights in defining and determining the scope of basic human rights, so the right to respect for home too, is reflected in its rich practice, which greatly affects national legal systems. Thus, the European Court in its practice has defined the principles and criteria for providing protection of the right to respect for home. To monitor the used instruments for protection of the right to respect for home in the domestic legal order and their harmonization with European standards of protection, it is necessary to analyze the practice of the Constitutional Court of the Republic of Serbia, through which is reflected practice of regular courts as well. Considering that in the practice of the highest courts in our country, as well as in the practice of the Constitutional Court, the right to respect for home has been recognized recently, the lack of numerous theoretical discussions and practical analyzes of prominent controversial issues indicates the relevance of this topic about we write about.

scholarly journals Enforceability of ECtHR Judgements in Russia: Alternatives of Interaction Between Jurisdictions

2018 ◽  
Vol 50 ◽  
pp. 01192
Author(s):  
Ivan Usenkov ◽  
Igor Morozov
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Constitutional Law ◽  
European Convention ◽  
Constitutional Court ◽  
Legal Analysis ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Russian Federation

Issues of enforceability of the European Court of Human Rights judgements in Russia are considered in the article. The authors infer the priority of the model, in which judgements can be unimplemented if they are contrary to the constitutional law of the country in accordance with comparative legal analysis. However, the state is ought to make everything possible in order to enforce the decision, even interpret the Constitution, if possible. The authors conclude that issues of correlation of sovereignty and regional consensus, subsidiarity principles and supranationality, interpretation of the European Convention for the Protection of Human Rights and fundamental freedoms have not obtained a response. The European Court of Human Rights should be more thorough with the aspects of the national legal systems, but rejection of the execution of its judgements is unacceptable. Relevant provisions are to be excluded from the FCL from 21.07.1994 N 1-FCL «The Constitutional Court of the Russian Federation».

scholarly journals The System of Procedural Principles of Proceedings in Administrative Offenses Cases

2020 ◽  
Vol 15 (11) ◽  
pp. 153-159
Author(s):  
A. R. Nobel
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
European Convention ◽  
Constitutional Court ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Russian Federation ◽  
The Right ◽  
Procedural Decisions

The paper provides definitions of the principles and system of principles of proceedings in cases of administrative offenses. Based on the norms of the Constitution of the Russian Federation, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Code of Administrative Offenses of the Russian Federation and the practice of their application, the author substantiates the position that the principles of proceedings in cases of administrative offenses are, to varying degrees, enshrined in regulatory legal acts constituting legislation on administrative offenses, both directly and indirectly. The system of procedural principles of proceedings in cases of administrative offenses is revealed. The author includes the following principles in this system: open consideration; state language; direct examination of evidence; freedom to evaluate evidence; compulsory consideration of applications; freedom to appeal against procedural decisions; competition and equality of the parties; fair consideration of the case; ensuring the right to defense. The content of these principles having a pronounced procedural nature is formed through a systemic interpretation of the provisions of the Constitution of the Russian Federation, the European Convention on Human Rights, the Code of Administrative Offenses of the Russian Federation, the case law of the Constitutional Court of the Russian Federation and the European Court of Human Rights. The author concludes that, despite the existence of various ways of consolidating the procedural principles of proceedings in cases of administrative offenses, the greatest efficiency of their perception and application will be achieved only when the principles are reflected in a special chapter of the Code of Administrative Offenses of the Russian Federation.

scholarly journals Convention for the Protection of Human Rights and Fundamental Freedoms as a source of the constitutional law of Ukraine

2021 ◽  
Vol 1 (12) ◽  
pp. 7-18
Author(s):  
Rebkalo M.M. ◽  
◽  
Oliinyk V.S. ◽  
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Constitutional Law ◽  
European Convention ◽  
Constitutional Court ◽  
Council Of Europe ◽  
Martial Law ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

In the recent period of Ukrainian history, scholars pay attention to the discussion of the relationship between Ukrainian constitutional law and the Convention for the Protection of Human Rights and Fundamental Freedoms and the place of rulings and decisions of the European Court of Human Rights in the legal system of Ukraine. The analysis of the provisions of the European Convention on Human Rights and current Ukrainian legislation is made in the article. It is made in order to determine the impact of this act of the Council of Europe on the constitutional law of Ukraine. It is noted that the Convention plays an important role in the process of protection of human rights and freedoms in Ukraine and has an impact on the implementation of the rule of law, which relate to individual’s constitutional status. It is noted that the European Convention significantly increases the level of the effectiveness of constitutional human rights legislation. The role of the European Convention for the Protection of Human Rights and the European Court of Human Rights in the formation and activity of the Constitutional Court of Ukraine has been determined. The thesis that within the ratio of the Convention and Ukrainian law, the supremacy of the latter within the national legal system does not eliminate the need to comply with international obligations is substantiated in the article. The grounds for restricting human and civil rights and freedoms in accordance with the requirements of the European Convention for the Protection of Human Rights and the constitutional legislation of Ukraine are considered in the article. In order to ensure national security, the restriction of human and civil rights and freedoms in a state of martial law and emergency is analyzed. By introducing martial law and a state of emergency, it is possible to concentrate temporarily all the levers of control over the individual’s status by coercive means within the framework of official power. The conclusion that the Convention for the Protection of Human Rights and Fundamental Freedoms and the case law of the European Court of Human Rights have had a significant impact on the formation and development of human and civil rights and freedoms as basic, value priorities of the constitutional law of Ukraine is substantiated in the article. Key words: constitutional law, sources of law, Council of Europe, Constitution of Ukraine, Constitutional Court of Ukraine, Convention for the Protection of Human Rights and Fundamental Freedoms, European Court of Human Rights.

scholarly journals On the Issue of Inadmissibility of Infringing the Right to a Fair Trial of Criminal Cases under the Guise of Protecting State Sovereignty

2017 ◽  
Vol 4 (3) ◽  
pp. 176-182
Author(s):  
A A Timoshenko
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Constitutional Court ◽  
International Human Rights Law ◽  
Political Rights ◽  
Criminal Cases ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

The author examines the issue of the prospects for the direct application of human rights standards in the regulation of criminal procedural activity. In this regard, the key attention is paid to the provisions of art. 14 of the International Covenant on Civil and Political Rights, as well as art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the right to a fair trial of criminal cases. It is assumed that only a fair and impartial court is able to ensure the progressive development of society, its stability and security of citizens. Based on the analysis of the main possible ways of further development of the criminal procedural legislation, one of which is related to the increase of formal requirements for criminal procedural activity, and the other - with increased attention to the natural-legal principles of the application of the law, preference is given to the second approach. Based on the analysis of the monuments of world jurisprudence, the study of the history of the formation of international human rights law, it is concluded that it is impossible to overcome the progressive movement towards the triumph of the humanitarian status of the person recognized by the international community. In this regard, the Constitutional Court of the Russian Federation, assessing the correctness of the European Court of Human Rights interpretation of the European Convention for the Protection of Human Rights and Fundamental Freedoms, should be guided by world standards. In addition, there is a need for widespread respect for the need to respect the right to a fair trial.

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