EVIDENCE AND PROOF IN CIVIL PROCEDURE LAW OF UKRAINE: COMPLIANCE WITH INTERNATIONAL STANDARDS

2018 ◽  
Author(s):  
Anton Busakevych ◽  
◽  
Oleksandr Pryvydentsev ◽  
Keyword(s):  
Human Rights ◽  
National Level ◽  
Legal Framework ◽  
Civil Procedure ◽  
International Standards ◽  
Legal Systems ◽  
Global Trends ◽  
European Court ◽  
Civil Proceedings ◽  
Evidence And Proof

The article is devoted to the consideration of the legal nature of the institution of proof in civil proceedings and the compliance of national norms with international standards. The legislative definition of the concept of evidence, enshrined in the Civil Procedure Code of Ukraine, is analyzed and some features of evidence in foreign countries are considered. The authors note that in order to conduct an effective comparative analysis of the evidentiary procedure in Ukraine and abroad, it is advisable to study the case law of the European Court of Human Rights, as one of the main institutions whose jurisdiction extends to all member states of the Council of Europe and improve national legislation and bring it into line with international standards. It should be noted here that in all legal families the institution of proof is the cornerstone of justice. The development of legal systems was due to the systematic reform of procedural legislation, the creation of new models aimed at meeting the requirements of the time. The European Court of Human Rights, using the traditions and features of common and continental law, has repeatedly stated that the future position of the court in resolving this conflict between the parties and making a reasoned decision depends on the quality and completeness of the evidence presented. The recommendations contained in the court decisions reflect the progressive trends of both legal systems and are aimed at strengthening guarantees of justice at the national level. According to the authors, the foundations have already been laid for the formation of a new perception of the institution of evidence in Ukraine, as its reform took place taking into account European standards of civil proceedings and under the influence of global trends in this area. However, this process is currently incomplete and needs to be intensified with the need to develop clear criteria for assessing evidence at the level of national law, which would apply the court to the case, as is the case in the Anglo-Saxon legal system. The authors draw attention to the fact that today in Ukraine it is appropriate to introduce a "standard of proof" in civil proceedings, i.e. the use of a balance of probability to assess the circumstances of the case. The article also analyzes the gaps in the legislation on the issue raised in the topic of the work, in particular, offers proposals for improving the legal framework of Ukraine to improve the procedure of proof in civil proceedings.

EVIDENCE AND PROOF IN CIVIL PROCEDURE LAW OF UKRAINE: COMPLIANCE WITH INTERNATIONAL STANDARDS

2018 ◽  
Author(s):  
Anton Busakevych ◽  
◽  
Oleksandr Pryvydentsev ◽  
Keyword(s):  
Human Rights ◽  
Civil Procedure ◽  
International Standards ◽  
European Court ◽  
Foreign Countries ◽  
Civil Proceedings ◽  
Legal Nature ◽  
National Norms ◽  
Definition Of ◽  
Evidence And Proof

The article is devoted to the consideration of the legal nature of the institution of proof in civil proceedings and the compliance of national norms with international standards. The legislative definition of the concept of evidence, enshrined in the Civil Procedure Code of Ukraine, is analyzed and some features of evidence in foreign countries are considered. The authors note that in order to conduct an effective comparative analysis of the evidentiary procedure in Ukraine and abroad, it is advisable to study the case law of the European Court of Human Rights, as one of the main institutions whose jurisdiction extends to all member states of the Council of Europe and improve national legislation and bring it into line with international standards. It should be noted here that in all legal families the institution of proof is the cornerstone of justice. The development of legal systems was due to the systematic reform of procedural legislation, the creation of new models aimed at meeting the requirements of the time. The European Court of Human Rights,

scholarly journals The Concept of Integration in the Jurisprudence of the European Court of Human Rights

2010 ◽  
Vol 12 (1) ◽  
pp. 23-43 ◽  
Author(s):  
Clíodhna Murphy
Keyword(s):  
Human Rights ◽  
National Level ◽  
Legal Framework ◽  
Family Reunification ◽  
The European Union ◽  
Normative Development ◽  
European Court ◽  
The Right ◽  
Core Issues ◽  
The Eu

Abstract Integration has become a recurring theme of national immigration policies; and there has been a corresponding normative development of the concept to a certain degree in the European Union, both in soft policy and through references to integration in legally binding immigration measures. The difficulty in defining integration is a pervasive problem encountered by lawyers and sociologists attempting to understand the phenomenon. This article argues that the development of the concept of integration by the European Court of Human Rights has an important contribution to make to the debate, with the potential to provide a legal framework within which to situate integration policies at the national and the EU level. It assesses the concept of integration employed by the European Court of Human Rights, analysing the Court’s Article 8 immigration jurisprudence in terms of two core issues: first, the conception of integration employed in the jurisprudence of the European Court of Human Rights; and second, the implications of the development of the concept in terms of impacting on the right to remain in a State Party and family reunification, each a key integration issue. The article concludes that while the jurisprudence relating to what actually constitutes ‘integration’ is very much in its infancy, the express consideration of integration as a factor in the balancing exercise undertaken by the Court in the expulsion cases signifies the start of a normative development of the concept of integration by the European Court of Human Rights. Nevertheless, it remains to be seen whether the increased emphasis of the Court on the integration criterion in the Article 8 expulsion cases influences the Court’s approach to key integration issues such as family reunification and in turn whether this filters down to legislators and policymakers at the national level.

Domestic Investigation and Prosecution of Atrocities Committed during Military Operations: The Impact of Judgments of the European Court of Human Rights

2013 ◽  
Vol 46 (3) ◽  
pp. 369-404
Author(s):  
Silvia Borelli
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Full Potential ◽  
Remedial Measures ◽  
Legal Systems ◽  
Military Operations ◽  
Council Of Europe ◽  
Proactive Approach ◽  
European Court ◽  
The Impact

The undeniable impact of the European Convention on Human Rights on the legal systems – and the wider society – of Member States of the Council of Europe would not have been possible without its unique monitoring system, centred around the European Court of Human Rights and the Committee of Ministers of the Council of Europe. The present article assesses the extent to which the European Court's judgments that have found violations of the procedural obligations under Articles 2 and 3 of the Convention to investigate unlawful killings, disappearances, acts of torture or other ill-treatment have, in fact, led to an improvement in the capability of the domestic legal systems of states parties to ensure accountability for such abuses. On the basis of four case studies, it is concluded that the European Court's judgments, coupled with the supervisory powers of the Committee of Ministers, have the potential to make a very great impact on the capability of domestic legal systems to deal with gross violations of fundamental human rights, and have led to clear and positive changes within the domestic legal systems of respondent states. Nevertheless, this is by no means always the case, and it is suggested that, in order for the Convention system to achieve its full potential in the most politically charged cases, the European Court should adopt a more proactive approach to its remedial powers by ordering specific remedial measures, to include in particular the opening or reopening of investigations.

Religious Pluralism and State- Centric Legal Spaces in Europe

2021 ◽  
Vol 18 (1) ◽  
pp. 33-54
Author(s):  
Kyriaki Topidi
Keyword(s):  
Human Rights ◽  
Present Article ◽  
Religious Pluralism ◽  
Legal Pluralism ◽  
Case Law ◽  
Legal Systems ◽  
European Court ◽  
Starting Point

Multiculturalism is continuously and relentlessly put to the test in the so- called West. The question as to whether religious or custom- based legal orders can or should be tolerated by liberal and democratic states is, however, by no means a new challenge. The present article uses as its starting point the case of religious legal pluralism in Greece, as exposed in recent European Court of Human Rights (ECtHR) case- law, in an attempt to explore the gaps and implications in the officially limited use of sharia in Western legal systems. More specifically, the discussion is linked to the findings of the ECtHR on the occasion of the recent Molla Sali v. Greece case to highlight and question how sharia has been evolving in the European legal landscape.

scholarly journals 4 The Court and Domestic and International Legal Systems

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Vienna Convention ◽  
Legal Systems ◽  
Member States ◽  
Supreme Courts ◽  
European Court ◽  
Set Up ◽  
The One ◽  
The Relationship

This chapter assesses the relationship between the European Court of Human Rights (ECtHR) and domestic and international legal systems. With the ratification of the European Convention on Human Rights (ECHR), the Member States accept to be bound by final judgments of the Court and to implement them in their domestic legal systems. The Convention system does not make any difference as to the set-up of the national legal system or to the hierarchical position accorded to the Convention in national law. This is in line with a purist international law perspective, summarized in Article 27 of the Vienna Convention of the Law on Treaties: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ However, from the constitutional law perspective of the Member States, the situation is much more multi-faceted and complex. While it is generally accepted that the Court's judgments are binding and have to be implemented, the relationship between the Convention and the national constitutions as well as between their respective guardians, the Court on the one hand and national constitutional or supreme courts on the other hand, is not seen as one-way and hierarchical, but nuanced and differentiated. Implementation of judgments is accepted to be a duty, but not necessarily without exceptions. The chapter then considers the relationship between the ECtHR and the European Court of Justice (ECJ).

scholarly journals Freedom of Expression in Malaysia: Compatibility with the International Human Rights Standard

BESTUUR ◽  
2021 ◽  
Vol 9 (1) ◽  
pp. 44
Author(s):  
Saidah Fasihah Binti Che Yussoff ◽  
Rohaida Nordin
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Legal Framework ◽  
International Standards ◽  
Freedom Of Information ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Human Right ◽  
International Human Rights ◽  
International Human

<p>Malaysia is likely to introduce new laws on freedom of information. However, the important questions are whether the said laws are effective and will have enough bite with the public looking forward to opening government policy. Freedom of information has developed under international human rights law as the right to freedom of expression, including the freedom to seek, receive and impart knowledge and ideas through media, regardless of any frontier. This paper aims to examine freedom of expression under the international realm, scrutinize the said freedom in the Malaysian legal framework, and discuss the proposed enactment of freedom of information laws in Malaysia in conformity with international human rights law. This research uses the qualitative research method. This paper concludes that freedom of information in Malaysia is severely impeded by the enforcement of the Official Secret Act. This paper calls for the repeal or amendment to the Act in conformity with international standards.  </p><p><strong>Keywords</strong><strong>:</strong> Expression; Freedom; Expression; Human Right.</p>

scholarly journals Improving Human Rights Protection on the national and the European Level

2015 ◽  
pp. 36-51
Author(s):  
RUDOLF DUR SCHNUTZ
Keyword(s):  
Human Rights ◽  
National Level ◽  
European Level ◽  
Human Rights Protection ◽  
Current State ◽  
European Court ◽  
Protection Of Human Rights ◽  
Venice Commission ◽  
Effective Remedy ◽  
The Individual

The recent move towards the individual access to constitutional justice is a progress for protection of human rights in Europe. The explicit purpose of these efforts is to settle human rights issues on the national level and to reduce the number of cases at the Strasbourg Court. Such individual complaints have to be designed in a way that makes them an effective remedy which has to be exhausted before a case can be brought before the European Court of Human Rights. This paper points out the current state of these improvements on the national level in a difficult context on the European level and the recommendations of the Venice Commission in this regard.

scholarly journals Interim measures as human rights protection instruments: to the problem statement

2021 ◽  
pp. 539-544
Author(s):  
Siuzanna Mnatsakanian
Keyword(s):  
Human Rights ◽  
National Level ◽  
Human Rights Violations ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Core Issue ◽  
Great Practice ◽  
Interim Measures ◽  
Human Rights Violation

Conceptual approaches to defining the nature and the scope of interim measures implementation as an instrument of human rights protection at international and national level are analyzed. The widespread use of interim measures as international standard of urgent respond to alleged violations of human rights has not led to the implementation of the legal institute concerned at the national level. Accordingly, this analysis aimed at defining the grounds of interim measures as human rights protection instrument application to be used by the state as an immediate response to human rights violations and possible violations. European Court of Human Rights has a great practice of interim measures granting. Interim measures are granted by the Court only in clearly defined conditions, namely where there is a risk that serious violations of the Convention might occur. A high proportion of requests for interim measures are inappropriate and are therefore refused. Besides, interim measures are applied upon request of the applicant claiming about alleged violations of his or her human rights. At the national level interim measures should/may be granted upon request of the applicant or by the duty-bearer’s initiative to prevent possible human rights violations. The grounds of interim measures granting should also be defined – the best international practice should be used taking into account the Ukrainian context. Another core issue analyzed is defining duty-bearers – subjects enforced to grant interim to prevent abuse in the sphere concerned. It is obvious that court shall be the only authority to resolve the substantive case of alleged human rights violation. However, public and local authorities shall be enabled to grant interim measures to prevent the possible violations. With this, the scope and the sphere of its application at the national level shall be broader in comparison with the case law of the European Court of Human Rights.

Extradition Between European and African Countries: Overcoming the Challenges

2021 ◽  
Vol 11 (3) ◽  
pp. 288-319
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Criminal Court ◽  
European Countries ◽  
Criminal Proceedings ◽  
African Countries ◽  
European Court ◽  
Real Risk ◽  
Civil Proceedings ◽  
The Right

Although EU states use the European Arrest Warrant (EAW) for the purpose of surrendering a person who is accused of committing an offence or who has been convicted of an offence, they use extradition when dealing with countries outside the EU. However, they use surrender when dealing with the International Criminal Court (ICC). Thus, extradition is one of the ways in which African and European countries (especially EU members) are cooperating in the fight against crime. Case law from courts in some African and European countries and from the European Court of Human Rights, the Human Rights Committee and the Committee against Torture, shows that extraditions between African and European countries have been delayed or hampered by allegations of human rights violations in the requesting state. These allegations have focused on mainly two rights: the right to a fair trial and the right to freedom from torture. The European Court of Human Rights has held that the extradition of a person should not go ahead if his or her trial was or will amount to a flagrant denial of justice or where there is a real risk of being subjected to torture. Although African courts and international human rights bodies have also held that extradition should not go ahead where there is a real risk that the person will be subjected to torture or where his/her trial will be unfair, they have not adopted the ‘flagrant denial of justice’ test. The case law also shows that some people have challenged the legal basis for their extradition. This article highlights this case law and suggests ways in which some of the challenges associated with extradition could be overcome. The article demonstrates that courts in some African and European countries have considered the nature of extradition enquiries. In some countries, such as Kenya, courts have held that extradition enquiries are criminal proceedings. However, in the United Kingdom, courts have held that extradition enquiries are criminal proceedings of a special type. There is consensus that extradition enquiries are not civil proceedings.

Freedom of Religion in the Workplace

2021 ◽  
pp. 1-21
Author(s):  
Nedim Begović
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
Case Law ◽  
Legal Framework ◽  
The State ◽  
European Convention ◽  
Freedom Of Religion ◽  
European Court

Abstract The article analyses the case law of the European Court of Human Rights on accommodation of Islamic observances in the workplace. The author argues that the Court has not hitherto provided adequate incentives to the states party to the European Convention on Human Rights to accommodate the religious needs of Muslim employees in the workplace. Given this finding, the author proposes that the accommodation of Islam in the workplace should, as a matter of priority, be provided within a national legal framework. In Bosnia and Herzegovina, this could be achieved through an instrument of contracting agreement between the state and the Islamic Community in Bosnia and Herzegovina.

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