scholarly journals The Right to Use Legal Remedies Against Court Decisions in Contested Procedure

2020 ◽  
Vol 4 (1) ◽  
pp. 9
Author(s):  
Arbnor Ajet Ajeti
Keyword(s):  
Human Rights ◽  
Main Idea ◽  
Scientific Paper ◽  
Fundamental Rights ◽  
European Convention ◽  
Court Decisions ◽  
Legal Doctrine ◽  
Legal Remedies ◽  
Court Proceedings ◽  
The Right

The purpose of this scientific paper is to handle in detail the main issues concerning the right to use legal remedies by the parties against court decisions. The right to use legal remedies against court decisions is recognized as one of the fundamental rights of litigants in the civil contested procedure. Due to the importance of using legal remedies in this procedure and other court proceedings, the right to use legal remedies is also foreseen by legal acts. We emphasize this because the right to use legal remedies is guaranteed by the Universal Declaration of Human Rights of 1948, by the European Convention on Human Rights of 1950. Also, the right to use legal remedies is guaranteed through the Constitution of the Republic of Kosovo of 2008 as one of the fundamental human rights. In contrast, the procedure, according to appealing means, has been regulated by the Law on Contested Procedure of Kosovo 2008. The main idea of this scientific paper is to clarify the right of parties to use legal remedies and what are legal remedies to this procedure. The results of handling consist of understanding the importance of legal remedies, in which cases legal remedies may be submitted, and their impact in exercising the right of litigants in order to provide protection to the legal interests of the parties. In this scientific paper have been conducted handlings concerning the right to use legal remedies, types of appealing means, ordinary legal remedies, and extraordinary legal remedies. This scientific paper is based on applicable legislation, judicial practice, and legal doctrine. In this paper are also given conclusions regarding the right to use legal remedies against court decisions in the contested procedure.

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.

Professional secrecy and legal professional privilege

2018 ◽  
Vol 25 (2) ◽  
pp. 188-207 ◽  
Author(s):  
Jorg Sladič
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Family Life ◽  
Common Law ◽  
Civil Law ◽  
Fundamental Rights ◽  
The Other ◽  
European Convention ◽  
Legal Professional ◽  
The Right

Legal privilege and professional secrecy of attorneys relate to the right to a fair trial (Article 6 European Convention on Human Rights (ECHR)) as well as to the right to respect for private and family life (Article 8 ECHR). The reason for protecting the lawyer via fundamental rights is the protection of fundamental rights of the lawyer’s clients. All legal orders apply legal privileges and professional secrecy; however, the contents of such are not identical. Traditionally there is an important difference between common and civil law. The professional secrecy of an attorney in civil law jurisdictions is his right and at the same time his obligation based on his membership of the Bar (that is his legal profession). In common law legal privilege comprises the contents of documents issued by an attorney to the client. Professional secrecy of attorneys in civil law jurisdictions applies solely to independent lawyers; in-house lawyers are usually not allowed to benefit from rules on professional secrecy (exceptions in the Netherlands and Belgium). On the other hand, common law jurisdictions apply legal professional privilege, recognized also to in-house lawyers. Slovenian law follows the traditional civil law concept of professional secrecy and sets a limited privilege to in-house lawyers. The article then discusses Slovenian law of civil procedure and compares the position of professional secrecy in lawsuits before State’s courts and in arbitration.

scholarly journals Open Enforcement: New Approach of Ukraine

2020 ◽  
pp. 58-68
Keyword(s):  
Human Rights ◽  
Case Law ◽  
International Agreements ◽  
Court Decisions ◽  
Legal Doctrine ◽  
New Approach ◽  
National Legislation ◽  
European Court ◽  
The World ◽  
Court Proceedings

Open justice is one of the fundamental human rights guaranteed by international agreements, as well as by the national legislation of Ukraine. During the reform of justice, the provisions of procedural and judicial legislation have been substantially updated, in particular with regard to ensuring openness and transparency of court proceedings. At the same time, the legislation on enforcement of court decisions does not disclose the essence of these principles, which are enshrined in the relevant laws. Accordingly, the purpose of the article is to identify specific elements of the implementation of the principle of openness and transparency of the enforcement process based on the analysis of the legislation of Ukraine and other countries of the world, national legal doctrine and case law of the European Court of Human Rights.

scholarly journals Who is Entitled to the Right to Respect for Family Life Under the European Union Law?

Teisė ◽  
2019 ◽  
Vol 110 ◽  
pp. 24-45
Author(s):  
Ingrida Danėlienė
Keyword(s):  
European Union ◽  
Human Rights ◽  
Family Life ◽  
National Level ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
European Union Law ◽  
The Republic ◽  
The Right

[full article, abstract in English; abstract in Lithuanian] The article investigates the right to respect for family life, established by Article 7 of the Charter of Fundamental Rights of the European Union, as applied and interpreted in conjunction with the right to marry and the right to found a family, laid down in Article 9 of the Charter. The standard of protection set by European Union law regarding these rights is identified by taking into account the standard of protection of the relevant rights established by the European Convention on Human Rights and the established case law of the European Court of Human Rights. Topical issues relating to the consolidation of these individual rights at the national level in the Republic of Lithuania are also addressed in the article. In doing so, an emphasis is laid on the content of the concepts of “family” and “family life” under supranational and national law.

scholarly journals Jawność postępowania sądowego w świetle Europejskiej konwencji praw człowieka

Radca Prawny ◽  
2021 ◽  
pp. 11-42
Author(s):  
Janusz Roszkiewicz
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Open Court ◽  
European Court ◽  
Protection Of Human Rights ◽  
Case Files ◽  
Court Proceedings ◽  
Polish Law ◽  
Definition Of ◽  
The Right

Openness of court proceedings in compliance with the European Convention on Human Rights The subject of this article is the right to open court proceedings as guaranteed in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. The most important elements of this right are: the right to participate in a court hearing, the right to access to the case files and the right to acquaint with the ruling. This right applies not only to the parties to the proceedings, but also – albeit to a lesser extent – to every citizen. The text discusses the findings of the doctrine and the European Court of Human Rights, at times criticizing them especially with regard to the too narrow definition of the obligation to publicly announce the judgment. In addition, the article analyzes the extent to which the Polish law encourages openness in civil, criminal and judicial-administrative procedures.

scholarly journals El diálogo entre el Tribunal Europeo de Derechos Humanos y los tribunales constitucionales en la construcción de un orden público europeo

2012 ◽  
pp. 183 ◽  
Author(s):  
Javier García Roca
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Constitutional Courts ◽  
Legal Doctrine ◽  
Derechos Humanos ◽  
High Courts ◽  
European Court ◽  
El Sistema ◽  
Constitutional Pluralism

Asistimos a un proceso de influencia recíproca sobre derechos entre altos tribunales. Distintas jurisdicciones —ordinaria, constitucional, convencional y de la Unión— concurren al servicio de la integración europea mediante la garantía efectiva de unos derechos comunes y vienen obligadas a elaborar interpretaciones compatibles. Los derechos fundamentales son un ingrediente de un orden público democrático y el CEDH opera como un instrumento constitucional al servicio de ese orden. La idea de diálogo judicial es un instrumento flexible y ambiguo, y, precisamente por ello, muy útil para organizar un trabajo en red en este escenario de pluralismo constitucional. Si bien no es claro qué quiere decirse con «diálogo», puede que de esta ambigüedad sea mejor no salir dado el amplio círculo de los destinatarios. Los tribunales constitucionales deben actuar como interlocutores del TEDH y, al tiempo, como mediadores, divulgando la jurisprudencia europea y haciéndola compatible con las jurisprudencias constitucionales mediante una interpretación conforme. Sería muy conveniente acomodar los parámetros constitucionales de derechos, mediante su reforma, al mínimo que entraña el sistema del Convenio. Debemos explicar con mayor profundidad las diversas relaciones que se engloban bajo la inclusiva denominación de diálogo.We are witnessing a process of influence and cross-fertilization in human rights between high courts. Several jurisdictions —domestic, constitutional, European Court and Court of Justice— cooperate in European integration in order to achieve collective enforcement of rights and therefore compatible interpretationsmust be constructed. Fundamental rights are an ingredient of a European and democratic public order, and the European Convention on Human Rights must work as a constitutional instrument of this order. The idea of judicial dialogue is such a flexible and ambiguous device that it becomes very useful for organizing a network in this scenario of constitutional pluralism. Nevertheless it is not at all clear what the expression «dialogue » means, however it is probably better not to go very much into detail because of the wide number of member States which have to understand it. Constitutional Courts should act as partners of the European Court of Human Rights and also as mediators, spreading European legal doctrine and making it compatible with their own constitutional doctrines by means of an interpretation secundum conventionem. It would be convenient to reform constitutional parameters in order to harmonize their internal standards with the system of the Convention. But we should go further and explain in detail the different relationships which are included under the word «dialogue».

Legal Gender Beyond the Binary

2019 ◽  
Vol 33 (3) ◽  
pp. 403-429
Author(s):  
Susanne Lilian Gössl ◽  
Berit Völzmann
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Court Decisions ◽  
European Court ◽  
The Individual

Abstract The article explores the fundamental rights regarding a person’s status registration as neither male nor female and, thus, gender registrations ‘beyond the binary’. The authors analyse the fundamental rights of the individual as codified in the European Convention on Human Rights (ECHR) and examine ‘third options’ in jurisdictions and recent court decisions in Europe. They analyse to what extent similar results might be achieved at the European Court of Human Rights (ECtHR).

Remedies and Sanctions

2016 ◽  
Author(s):  
Matthew Nicklin QC ◽  
Chloe Strong
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Personal Information ◽  
European Convention ◽  
Criminal Sanctions ◽  
Legal Remedies ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Media ◽  
The Right

This chapter considers the legal remedies that may be available to those who complain that an invasion of their privacy has occurred or is threatened by the actions of the media, as well as touching briefly on the criminal sanctions that may be applicable. Regulatory remedies under the Data Protection Act are considered in Chapter 7 and the remedies available from the media regulators in Chapter 14. Whether a remedy is sought before or after publication, and whether the complaint relates to the content of an actual or proposed publication or the method by which personal information has been obtained, it is likely that any relief granted will affect the exercise of the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights (ECHR). In such circumstances s 12 of the Human Rights Act 1998 (HRA) applies. The interpretation given to this important statutory provision by the courts is considered in Section C, but this chapter begins by looking at Parliament’s intention in enacting s 12. This is not necessarily to suggest that courts should have regard to such material as an aid to construction under the rule in Pepper v Hart but rather to explain the legislative background to this highly relevant provision.

Public Morals and the European Convention on Human Rights

2014 ◽  
Vol 47 (3) ◽  
pp. 361-378 ◽  
Author(s):  
Roberto Perrone
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Freedom Of Expression ◽  
Fundamental Rights ◽  
European Convention ◽  
The Public ◽  
General Clause ◽  
Protection Of Human Rights ◽  
The Right

The protection of ‘morals’ appears frequently as a limitation on the exercise of fundamental rights, both in international covenants and in constitutional charters. The European Convention for the Protection of Human Rights is not an exception, and ‘public morals’ may be called upon to justify the restriction of several important rights granted by the Convention, such as freedom of expression or the right to respect for private and family life. To avoid arbitrary restrictions of these rights it is important to understand the meaning of this general clause. This article aims to suggest a reading of the ‘public morals’ clause that singles out its scope and its boundaries.

The Right to Invoke Rights as a Limit to Sovereignty – Security Interests, State of Emergency and Review of un Sanctions by Domestic Courts under the European Convention of Human Rights

2017 ◽  
Vol 86 (3) ◽  
pp. 275-301 ◽  
Author(s):  
Stefan Kadelbach ◽  
David Roth-Isigkeit
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Public Security ◽  
State Of Emergency ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Independent Review ◽  
The Right

Recently, human rights law has been restricted increasingly by measures taken in the interest of public security. This raises the question whether there are limits in human rights protection that cannot be touched without questioning the very essence of individual rights protection itself. This article submits that the jurisprudence of the European Court of Human Rights (ECtHR) in cases dealing with the compatibility of measures taken in the public interest with the echr has defined such limits predominantly in terms of procedure. Accordingly, individuals must not be deprived of the right to independent review in the light of their fundamental rights. Thus, the Court has been developing what may be called a right to invoke rights, a procedural component underlying all guarantees of the Convention. This principle has been established and upheld in three different constellations: general measures for public security, states of emergencies and the implementation of un sanctions regimes.

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