scholarly journals A Right of Access to Medical Records: The Contemporary Case Law of the European Court of Human Rights and the Jurisprudence of Germany

2019 ◽  
Vol 6 (1) ◽  
pp. 103-122
Author(s):  
Anatoliy A. Lytvynenko
Keyword(s):  
Human Rights ◽  
Medical Records ◽  
Case Law ◽  
European Court ◽  
Right Of Access

Overruling ‘the Salduz Doctrine’ in Beuze v Belgium: The ECtHR’s further retreat from the Salduz principles on the right to access to lawyer

2019 ◽  
Vol 10 (4) ◽  
pp. 342-362
Author(s):  
Ergul Celiksoy
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Case Law ◽  
European Convention ◽  
The United Kingdom ◽  
European Court ◽  
Increasing Trend ◽  
Grand Chamber ◽  
The Right ◽  
Right Of Access

In November 2018, the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Beuze v Belgium. Relying on Ibrahim and Others v the United Kingdom, the Grand Chamber held that the Salduz principles require a two-stage test of analysis, and hence, ruled out that systematic statutory restriction of a general and mandatory nature would in itself constitute an automatic violation of Article 6 § 3(c) of the European Convention on Human Rights. However, the Beuze judgment appears to be very controversial, since the Grand Chamber failed to put forward any convincing reason why it departed from previous case law, particularly Dayanan v Turkey and other judgments against Turkey. In their separate opinion, the concurring Judges in Beuze were concerned that the Beuze judgment overruled ‘ Salduz itself and all other cases that have applied the Salduz test’, and thus, ‘actually distorts and changes the Salduz principle and devalues the right that the Court established previously’. This article analyses the Beuze judgment in the light of the Court’s recent jurisprudence in order to examine whether it contradicts and dilutes the principles previously set out. Further, it discusses the implications of the new standards established in Ibrahim and Others and in subsequent cases, particularly Beuze. Particular attention is paid to the questions of how ‘fair’ is the application of overall fairness assessment in every case, how may the Court’s changing direction of approach concerning the right to access to a lawyer affect the increasing trend of recognition thereof, as a rule, by the contracting states, and finally, to what extent the new principles, especially those established in Beuze, comply with Directive 2013/48/EU on the right of access to a lawyer.

scholarly journals ACCESS TO JUSTICE IN CRIMINAL PROCEEDINGS: LEGAL STANCES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Lex Russica ◽  
2020 ◽  
pp. 56-67 ◽  
Author(s):  
T. Yu. Vilkova
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
European Court ◽  
Different Types ◽  
Protection Of Human Rights ◽  
The Right ◽  
Right Of Access

The article is devoted to the analysis of the stances developed in the case law of the European Court of Human Rights regarding the content, scope, general principles of ensuring the right of access to justice, and permissible limits applied to restrict the right in question. The author has substantiated the conclusion that the European Court of Human Rights associates access to justice with Paragraph 1 of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus, the concept of access to justice includes a number of elements: the right to have recourse to court; the right to have a case heard and resolved in compliance with the requirements of a fair trial; the right to have the judgment enforced; the set of safeguards that allow the person to exercise the rights under consideration effectively. According to the European Court of Human Rights, access to justice should be ensured at all stages including pre-trial (criminal) proceedings and reviewing of court decisions by higher courts. However, the right of access to justice is not absolute. The restrictions imposed must have a legitimate purpose and reasonable proportionality must be obtained between the means used and the goal determined. In view of the requirement mentioned above, the national legislation may provide for the particularities of application of Paragraph 1 of Article 6 of the Convention to proceedings in different types of courts and at different stages, for example, by establishing a certain procedure for the court to grant individuals the right to appeal to a higher court. The author has demonstrated the main directions of applying the legal stances of the European Court of Human Rights regarding access to justice to improve the Russian criminal procedural legislation and law enforcement practices, as well as for further scientific research.

scholarly journals The right of access to patient's health data: a comparative analysis of the case law of the European court of human rights, the European court of justice, and the practice of the courts of the United States and some European countries

2020 ◽  
pp. 135-158
Author(s):  
A.A. Lytvynenko
Keyword(s):  
United States ◽  
Human Rights ◽  
Medical Records ◽  
Data Privacy ◽  
Criminal Responsibility ◽  
Case Law ◽  
The United States ◽  
Medical Documentation ◽  
Health Records ◽  
European Court

The legal relationships between the physician and the patient involve a duty to maintain the confindentiality of information concerning the patient’s health which is based upon the acting legislation and case law. The non-fulfillment of the said duty mostly brings to civil or criminal responsibility. However, both legislation and case law of various states bear a substantial number of exemptions from the duty of medical confidentiality. With the enhancement of patient’s role in decision-making concerning his treatment, various issues concerning his data privacy arose. Apart from his data privacy maintenance, there is an issue of the patient’s right to access to his medical records. The purpose of access may not be as prosaic as it may initially look like, as in various jurisprudence, including the case law of international courts, plaintiffs frequently applied to courts to obtain an order for medical records productions so as to file an action against hospitals for negligence. Hence, medical records would be used as evidence of negligence at trial. The positions of the United States courts and the courts in Europe (the given paper embraces several trials from Germany and Portugal) may have divergencies concerning direct access to medical data, proprietary status of the health records, a right to access of third parties and its conditions, the categories of personal data banned from patient’s access under certain circumstances etc. The issue of access to medical records in known in the ECJ jurisprudence since the mid 70s, especially in a number of judgments wherein the plaintiffs sued various EEC bodies attempting to impugn the decision of their human resourse department concerning their ineligibility of holding a certain position in the structures of EEC – therein, the defendants did not give reasonable justifications for the such decisions and didn’t present any medical documentation to the prospective plaintiffs as a proof of their unfitness for office. Since the 1980s, similar actions were filed to the European Court of Human Rights. In some cases, not only the issue of the patient’s right to inspection of the respective health records was risen, but the aspect of accessing the information on plaintiff’s biological forbearers as well (trials of Odievre v. France and Godelli v. Italy).

scholarly journals Cultura (derecho de acceso a la) = Culture (the Right to access to)

2019 ◽  
pp. 264
Author(s):  
Mar Antonino de la Cámara
Keyword(s):  
Human Rights ◽  
Theoretical Approach ◽  
Freedom Of Expression ◽  
Case Law ◽  
Derechos Humanos ◽  
European Court ◽  
Artistic Freedom ◽  
The Right ◽  
Right Of Access

Resumen: El doble objetivo de esta voz es: a) concretar el contenido jurídico del derecho de acceso a la cultura, para lo que se procederá a b) analizar la jurisprudencia más paradigmática del Tribunal Europeo de Derechos Humanos en relación con la protección de expresiones culturales. No se trata, pues, de una aproximación teórica a lo que sea cultura, sino de precisar, en la medida de lo posible, el alcance de un derecho poco estudiado dentro del marco geográfico europeo.Palabras clave: Derecho de Acceso a la Cultura, Derecho a la Cultura, Derecho a la Libertad de Expresión, Libertad de creación artística, Tribunal Europeo de Derechos Humanos, Copyright Abstract: This voice has been written with a double objective, namely a) to concretize the legal content of the right of access to culture, so we will proceed  b) to analyze some of the most paradigmatic case-law of the European Court of Human Rights in relation to the protection of the culture. Therefore, it is not a theoretical approach to what is culture, but to specify the scope of a right so unstudied within the European geographical framework.Keywords: Right of Access to Culture, Right to Culture, Right to Freedom of Expression, Right to artistic freedom, European Court of Human Rights, Copyright.

scholarly journals THE RIGHT OF ACCESS TO PATIENT’S HEALTH DATA: A COMPARATIVE ANALYSIS OF THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS, THE EUROPEAN COURT OF JUSTICE, AND THE PRACTICE OF THE COURTS OF THE UNITED STATES AND SOME EUROPEAN COUNTRIES

2020 ◽  
Vol 33 (20) ◽  
pp. 135-158
Author(s):  
A.A. Lytvynenko
Keyword(s):  
United States ◽  
Human Rights ◽  
Medical Records ◽  
Data Privacy ◽  
Case Law ◽  
The United States ◽  
Medical Documentation ◽  
Health Records ◽  
Medical Confidentiality ◽  
European Court

The legal relationships between the physician and the patient involve a duty to maintain the confidentiality of information concerning the patient’s health which is based upon the acting legislation and case law. The non-fulfillment of the said duty mostly brings to civil or criminal responsibility. However, both legislation and case law of various states bear a substantial number of exemptions from the duty of medical confidentiality. With the enhancement of the patient’s role in decision-making concerning his treatment, various issues concerning his data privacy arose. Apart from his data privacy maintenance, there is an issue with the patient’s right to access his medical records. The purpose of access may not be as prosaic as it may initially look like, as in various jurisprudence, including the case-law of international courts, plaintiffs frequently applied to courts to obtain an order for medical records productions so as to file an action against hospitals for negligence. Hence, medical records would be used as evidence of negligence at trial. The positions of the United States courts and the courts in Europe (the given paper embraces several trials from Germany and Portugal) may have divergencies concerning direct access to medical data, the proprietary status of the health records, a right to access of third parties, and its conditions, the categories of personal data banned from patient’s access under certain circumstances, etc. The issue of access to medical records in known in the ECJ jurisprudence since the mid-70s, especially in a number of judgments wherein the plaintiffs sued various EEC bodies attempting to impugn the decision of their human resources department concerning their ineligibility of holding a certain position in the structures of EEC – therein, the defendants did not give reasonable justifications for such decisions and didn’t present any medical documentation to the prospective plaintiffs as a proof of their unfitness for office. Since the 1980s, similar actions were filed to the European Court of Human Rights. In some cases, not only the issue of the patient’s right to inspection of the respective health records was risen, but the aspect of accessing the information on the plaintiff’s biological forbearers as well (trials of Odievre v. France and Godelli v. Italy). Keywords: Medical records, data privacy, a right to access to medical records, medical confidentiality, medical negligence, the proprietary status of health records.

scholarly journals The Right of Access to Non-State Dispute Resolution in the Legal Order of Larger Europe: A Yardstick to Harmonise Approaches to State and Non-State Dispute Settlement in Ukraine

2021 ◽  
Vol 7 ◽  
pp. 33-43
Author(s):  
Vasyl Marmazov ◽  
Pavlo Pushkar
Keyword(s):  
Human Rights ◽  
Dispute Settlement ◽  
Case Law ◽  
The State ◽  
Council Of Europe ◽  
European Court ◽  
State Monopoly ◽  
The Right ◽  
Settlement Of Disputes ◽  
Right Of Access

The Ukrainian legal thought has traditionally regarded the right of access to justice as a right of access to the State court, or to State managed or controlled procedures for dispute settlement. One of the main reasons for that was that the non-state, or uncontrolled by the State dispute settlement was not formally permitted, prohibition being imposed by the Soviet system and even to a certain extent during the period of domination on parts of the territory of the modern Ukraine, of the various externally imposed requirements of various legal systems in force at the material time. Non-state dispute settlement in its traditional forms, mainly based on the custom, was also left outside the attention in the pre-Soviet times and could not find its dignified place between accessible schemes and instruments for dispute settlement. Moreover, the understanding that justice delivery for the parties to the dispute should remain within State monopoly, became commonly accepted as from 1996. The adoption of the Constitution of Ukraine to a certain extent perverted approach to settlement of conflicts, focusing on the main role for the State courts, to these ends. In particular, the courts are having “direct jurisdiction” over any dispute, this led to perception of pre-trial settlements as unnecessary, even as regards those that remained in force, notably, the commissions on labour disputes that were recognized in the case-law of the European Court as equating in legal force to binding and enforceable legal instruments. Thus, the traditional historical approach to seeing judicial examination of disputes as an exceptional step in dispute settlement, in the absence of agreement or settlement by the parties, notably through mediation, arbitration or conciliation, variousforms of third party involvement, steadily disappeared. However, alternative examination of disputes is returning back to its original standing. It is gaining its place in the discussions on the judicial reform and reform of the system for settlement of disputes. This reform is far from being finalised and possibly has not even started in practice. The new approach to settlement of disputes, aimed at breaking the principle of State monopoly on examination of disputes and seeing State dispute settlement by court as an exception, is still not firmly entrenched into the mentality of lawyers, public servants, judges, law enforcement employees and politicians in Ukraine. Thus, the article suggests and points out to importance of taking into account with these changes of a wider European perspective. Such a perspective should relate not only to theoretical and practical advantages of the non-state dispute settlement, but also provides that the privatisation of the dispute settlement procedures and breaking the state monopoly on it, is a part of wider international obligations, also being a part of the supranational legal order of the European Union. This obligation of Ukraine is also seen as part of the requirements stemming from the Council of Europe law. Both the EU law and the Council of Europe provide for extensive soft law recommendations, legal principles, which are formed by the case-law of the European Court of Human Rights. Such an approach provides that alternative means of dispute settlement, including arbitration, do not run contrary to the principles of human rights with regard to fair judicial proceedings. On the contrary, they could be seen as a highly relevant actual means of dispute settlement for any modern European society, built on the principles of respect to rule of law and human rights.

The right to appeal to the European Court of Human Rights

2020 ◽  
Author(s):  
Yuliya Samovich
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Regulation ◽  
The European Union ◽  
Educational Organizations ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Procedure ◽  
The Right ◽  
Judicial Protection

The manual is devoted to making individual complaints to the European Court of human rights: peculiarities of realization of the right to appeal, conditions of admissibility and the judicial procedure of the European Court of Human Rights. The author analyses some “autonomous concepts” used in the court's case law and touches upon the possibility of limiting the right to judicial protection. The article deals with the formation and development of the individual's rights to international judicial protection, as well as the protection of human rights in universal quasi-judicial international bodies and regional judicial institutions of the European Union and the Organization of American States. This publication includes a material containing an analysis of recent changes in the legal regulation of the Institute of individual complaints. The manual is recommended for students of educational organizations of higher education, studying in the areas of bachelor's and master's degree “Jurisprudence”.

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