Efectele pandemiei SARS-CoV-2 asupra activității și procedurii în fața Curții Europene a Drepturilor Omului

2021 ◽  
Vol 2021 (2021) ◽  
pp. 147-163
Author(s):  
Corneliu-Liviu POPESCU ◽  
Keyword(s):  
Human Rights ◽  
Time Limit ◽  
European Convention ◽  
Time Limits ◽  
European Court ◽  
Procedural Time

At the beginning of the SARS-CoV-2 pandemic, the European Court of Human Rights ruled and then extended the decision to suspend part of its activity, as well as certain procedural time-limits, including time-limit for referral to the Court through the means of a state or an individual application. These measures do not comply with the European Convention on Human Rights, nor with the Rules of the Court. The control of the regularity of these measures may be exercised by the judicial formations of the Court, acting in the specific cases.

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.

Introductory Note

2018 ◽  
Author(s):  
Guido Raimondi
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
Freedom Of Expression ◽  
European Convention ◽  
European Court ◽  
European Public ◽  
Introductory Note ◽  
Un Security Council ◽  
The Right ◽  
The Eu

This article comments on four important judgments given by the European Court of Human Rights in 2016. Al-Dulimi v. Switzerland addresses the issue of how, in the context of sanctions regimes created by the UN Security Council, European states should reconcile their obligations under the UN Charter with their obligations under the European Convention on Human Rights to respect the fundamentals of European public order. Baka v. Hungary concerns the separation of powers and judicial independence, in particular the need for procedural safeguards to protect judges against unjustified removal from office and to protect their legitimate exercise of freedom of expression. Magyar Helsinki Bizottság v. Hungary is a judgment on the interpretation of the Convention, featuring a review of the “living instrument” approach. Avotiņš v. Latvia addresses the principle of mutual trust within the EU legal order and the right to a fair trial under Article 6 of the Convention.

Council of Europe

2018 ◽  
Author(s):  
Oliver Lewis
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Social Rights ◽  
Council Of Europe ◽  
Persons With Disabilities ◽  
European Committee ◽  
European Court ◽  
Human Rights Treaties ◽  
Fundamental Freedoms ◽  
Two Bodies

This chapter presents an overview of the adjudicative bodies of the Council of Europe—namely, the European Court of Human Rights (established by the European Convention on Human Rights and Fundamental Freedoms (ECHR)) and the European Committee of Social Rights—and outlines their mandates with regard to integrating UN human rights treaties. It analyses how these two bodies have cited the Convention on the Rights of Persons with Disabilities (CRPD). The dataset was forty-five cases dealt with by the Court and two collective complaints decided by the Committee that cite the CRPD up to 2016. Notwithstanding the relatively small size of the dataset, the conclusions are that the Council of Europe system has yet to engage seriously in the CRPD’s jurisprudential opportunities. The reasons for this cannot be ascertained from a desk-based methodology, and further research is required.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

The Debate about Soviet Genocide in Lithuania in the Case Law of The European Court of Human Rights

2020 ◽  
pp. 1-16
Author(s):  
Dovilė Sagatienė
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Genocide Convention ◽  
Legal Regulations ◽  
Legal Instrument ◽  
Soviet Occupation ◽  
European Court

Abstract Since 1990 Lithuania has been claiming that what happened there during Soviet occupation is genocide, as per the 1948 Genocide Convention, which embodies universal justice for suppressed nations and other groups. Due to Soviet actions in Lithuania throughout the periods of 1940-1941 and 1944-1990, the country lost almost one fifth of its population. The application of Lithuanian national legal regulations regarding this issue has been recently discussed in the framework of another postwar international legal instrument – the European Convention of Human Rights (1950). The goal of this article is to examine the main debates, which were revealed by the European Court of Human Rights in the cases of Vasiliauskas v. Lithuania (2015) and Drėlingas v. Lithuania (2019), regarding the killings of Lithuanian partisans, including the recognition of the significance of partisans for the Lithuanian nation, the foreseeability of genocide “in part,” as well as the punishment for complicity in killing Lithuanian partisans.

scholarly journals Les vulnérables : evaluating the vulnerability criterion in Article 14 cases by the European Court of Human Rights

Legal Studies ◽  
2021 ◽  
pp. 1-16
Author(s):  
So Yeon Kim
Keyword(s):  
Human Rights ◽  
Legal Reasoning ◽  
European Convention ◽  
Individual Autonomy ◽  
Group Affiliation ◽  
European Court ◽  
Before And After ◽  
New Criterion

Abstract The European Court of Human Rights (the Court) has been invoking the vulnerability criterion to overcome the drawbacks of cases concerning Article 14 of the European Convention on Human Rights, the prohibition of discrimination. This new criterion, allowing the Court to favour the applicants, highlights the applicants’ group affiliation. However, whether this criterion is effective in protecting vulnerable applicants against discrimination is doubtful. To examine this, I divide the Court's approach to Article 14 before and after the application of the vulnerability criterion. I argue that vulnerability criterion was used to fix the drawbacks of Article 14, but eventually backfired. The concept of vulnerability has been ambiguous, inconsistently used by the Court, and paternalistic. I suggest the Court focus on individual autonomy rather than grouping the applicants to improve their legal reasoning of Article 14.

Lachiri v Belgium and Bans on Wearing Islamic Dress in the Courtroom: An Emerging Trend

2019 ◽  
Vol 21 (1) ◽  
pp. 48-53
Author(s):  
Kaushik Paul
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Public Spaces ◽  
Religious Liberty ◽  
Recent Case ◽  
European Convention ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Islamic Dress

In recent years, the wearing of Islamic dress in public spaces and elsewhere has generated widespread controversy all over Europe. The wearing of the hijab and other Islamic veils has been the subject of adjudication before the European Court of Human Rights (ECtHR) on many occasions. The most recent case before the ECtHR as to the prohibition on wearing the hijab is Lachiri v Belgium. In this case, the ECtHR held that a prohibition on wearing the hijab in the courtroom constitutes an infringement of Article 9 of the European Convention on Human Rights (ECHR), which guarantees the right to freedom of religion or belief. From the perspective of religious freedom, the ruling of the Strasbourg Court in Lachiri is very significant for many reasons. The purpose of this comment is critically to analyse the ECtHR's decision in Lachiri from the standpoint of religious liberty.

Access to Court v State Immunity

2003 ◽  
Vol 52 (2) ◽  
pp. 297-332 ◽  
Author(s):  
Emmanuel Voyiakis
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
State Immunity ◽  
European Court ◽  
The Law ◽  
The Right

This comment discusses three recent judgments of the European Court of Human Rights in the cases of McElhinney v Ireland, Al-Adsani v UK, and Fogarty v UK. All three applications concerned the dismissal by the courts of the respondent States of claims against a third State on the ground of that State's immunity from suit. They thus raised important questions about the relation the European Convention on Human Rights (the Convention)—especially the right to a fair trial and access to court enshrined in Arcticle 6(1)—and the law of State immunity.

scholarly journals The echr and the Protection of Irregular Migrants in the Social Sphere

2015 ◽  
Vol 22 (1) ◽  
pp. 39-67
Author(s):  
Sylvie Da Lomba
Keyword(s):  
Human Rights ◽  
Social Dimension ◽  
European Convention ◽  
Social Rights ◽  
Irregular Migrants ◽  
Social Sphere ◽  
European Court ◽  
Poor Access ◽  
The Social ◽  
International Adjudication

For more than a decade, the Council of Europe has expressed deep concern over irregular migrants’ poor access to basic social rights. With this in mind, I consider the extent to which the European Convention on Human Rights can contribute to protect irregular migrants in the social sphere. To this end, I consider the role of international supervisory bodies in social rights adjudication and discuss the suitability of international adjudication as a means to uphold irregular migrants’ social rights. Having reached the conclusion that international adjudication can help protect irregular migrants’ social rights, I examine the ‘social dimension’ of the European Convention on Human Rights and the significance that the European Court of Human Rights attaches to immigration status. I posit that the importance that the Court attaches to resource and immigration policy considerations in N v. United Kingdom significantly constrains the ability of the European Convention on Human Rights to afford irregular migrants protection in the social sphere.

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