scholarly journals The Right to Punishment for International Crimes

2018 ◽  
Author(s):  
Jens David Ohlin
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Crimes Against Humanity ◽  
District Court ◽  
Human Rights Law ◽  
German Government ◽  
Subtle Change ◽  
International Crimes ◽  
European Court ◽  
The Right

On October 1, 2002, Magnus Gäfgen was taken into custody by the Frankfurt police in connection with the kidnapping of a young boy held for ransom. The police threatened Gäfgen with various forms of torture unless he divulged the location of the boy. Gäfgen quickly relented and led the police to the boy, who was already dead. Gäfgen was convicted of murder and the police were convicted of coercion. However, the district court concluded that the police, though culpable, were not appropriate subjects of punishment. Gäfgen, unhappy that his torturers were not punished, filed a case against Germany at the European Court of Human Rights (ECHR), arguing that Germany's failure to punish his torturers violated his human rights. The ECHR concluded that Gäfgen was right--the German government was obligated to punish perpetrators of torture, and by failing to do so adequately, Germany violated Gäfgen's human rights.The goal of this chapter is to show that the argument in Gäfgen is generalizable to other contexts. Although the case arose from a particular procedural posture, there is little reason to suspect that the arguments in Gäfgen will not hold for other crimes as well. At the very least, these arguments can be extended, without logical disruption, to other international crimes that states are under a legal obligation to criminalize, such as war crimes, crimes against humanity, and genocide. Moreover, if the structure of these arguments is conceptually sound, in theory they should apply outside of the European context, unless the argument is based on a particular right that is only protected by the European Convention and not by international law.This subtle change in emphasis -- moving from punishment as a license to punishment as a legal requirement -- has profound consequences for the operation of international criminal justice. States and international tribunals are required to punish perpetrators as a matter of human rights law, and their failure to follow through on this obligation violates not just some vague or inchoate ergo omnes obligation, it also violates an obligation owed directly to the victims of that particular atrocity. This applies not just when the perpetrators are not punished at all but also when the perpetrators, like in Gäfgen's case, are not punished severely enough.

scholarly journals The United Kingdom’s Coronavirus Act, deprivations of liberty, and the right to liberty and security of the person

2020 ◽  
Vol 7 (1) ◽  
Author(s):  
Jonathan Pugh
Keyword(s):  
Public Health ◽  
Human Rights ◽  
European Convention ◽  
Human Rights Law ◽  
Legal Certainty ◽  
The Public ◽  
European Court ◽  
The Uk ◽  
The Right ◽  
Article 5

Abstract In response to the SARS-CoV-2 coronavirus pandemic the UK government has passed the Coronavirus Act 2020 (CA). Among other things, this act extends existing statutory powers to impose restrictions of liberty for public health purposes. The extension of such powers naturally raises concerns about whether their use will be compatible with human rights law. In particular, it is unclear whether their use will fall within the public heath exception to the Article 5 right to liberty and security of the person in the European Convention of Human Rights. In this paper, I outline key features of the CA, and briefly consider how the European Court of Human Rights has interpreted the public health exception to Article 5 rights. This analysis suggests two grounds on which restrictions of liberty enforced some under the CA might be vulnerable to claims of Article 5 rights violations. First, the absence of specified time limits on certain restrictions of liberty means that they may fail the requirement of legal certainty championed by the European Court in its interpretation of the public health exception. Second, the Coronavirus Act’s extension of powers to individuals lacking public health expertise may undermine the extent to which the act will ensure that deprivations of liberty are necessary and proportionate.

NEGLIGENCE AND ARTICLE 6: THE GREAT ESCAPE?

2002 ◽  
Vol 61 (1) ◽  
pp. 1-52
Author(s):  
Tom Hickman
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
European Convention ◽  
Public Hearing ◽  
Human Rights Law ◽  
The Public ◽  
European Court ◽  
The Right ◽  
Court Of Appeal

WHEN, the European Court of Human Rights decided in Osman v. UK [1999] 1 F.L.R. 193 that striking out a claim in negligence (in Osman v. Ferguson [1993] 4 All E.R. 344) against the police, for failing to prevent a disturbed teacher injuring a pupil and killing the pupil’s father, amounted to a breach of Article 6 of the European Convention, many domestic lawyers felt that human rights law had gone too far. Article 6 protects the right to a fair and public hearing in the determination of one’s civil rights. The ECtHR did not say that the hearing had not been fair, but that it had not really been a hearing at all. By so deciding, the ECtHR subjected the public policy considerations that had been relied on by the Court of Appeal to strike out the claim to the requirements of legitimacy and necessity which have to be satisfied to justify an interference with Article 6.

Risk Regulation and the European Convention on Human Rights

2016 ◽  
Vol 7 (4) ◽  
pp. 733-749
Author(s):  
Letizia Seminara
Keyword(s):  
Human Rights ◽  
European Convention ◽  
European Law ◽  
Human Rights Law ◽  
Right To Life ◽  
Risk Regulation ◽  
European Regulation ◽  
European Court ◽  
Human Rights Norms ◽  
The Right

AbstractEuropean law of risk regulation is commonly intended to be limited to the European regulation in the internal market. However, risk is also regulated in Europe by human rights law, which is often left aside in this area. In fact, disregard for the risk entailed by certain manmade activities as well as by natural events, may imply restrictions to, inter alia, the right to life and the right to respect for private and family life enshrined in the European Convention on Human Rights. This article aims at studying the manner in which this Convention regulates risk through human rights norms. It provides an overview of the standards set by the European Court of Human Rights in this field.

The Personal Scope of the Right to Life Under Article 2(1) of the European Convention on Human Rights After the Judgment in A, B and C v. Ireland

2012 ◽  
Vol 13 (6) ◽  
pp. 783-792 ◽  
Author(s):  
Stefan Kirchner
Keyword(s):  
Human Rights ◽  
Private Life ◽  
European Convention ◽  
Human Rights Law ◽  
Abortion Law ◽  
European Court ◽  
The Republic ◽  
The Right ◽  
Roe V Wade ◽  
Domestic Law

The right to private life under Article 8 of the European Convention on Human Rights (the Convention, or ECHR) is one of the widest rights in European human rights law. Applicants often rely on the norm when they seek to justify all kinds of behavior, which may be limited or even outlawed through domestic law. Therefore, it comes as no surprise that in the case of A, B and C v. Ireland, which was decided by the European Court of Human Rights in December 2010, the applicants relied on Article 8 to complain about the restrictive anti-abortion law in the Republic of Ireland. Contrary to predictions that A, B and C v. Ireland could become “Europe's Roe v. Wade,” referring to the U.S. case which led to the permissibility of abortion under U.S. law, the European Court of Human Rights (the Court) held that Article 8 did not include a right to have an abortion.

scholarly journals A Market-Friendly Human Rights Paradigm for Intellectual Property Rights in Europe?

2021 ◽  
pp. 131-154
Author(s):  
Aurora Plomer
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Fiscal Policies ◽  
Human Rights Law ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Right ◽  
Right Of Property ◽  
Prevailing View

This chapter explains that in the new variants of constitutionalism, human rights are perceived as critical normative counterweights to the extension of market-friendly rights privileging the protection of fiscal policies, the free movement of capital assets across borders, and the interests of investors over democratic processes, communities, and people. From this perspective, the European Convention on Human Rights (ECHR) and EU Charter of Fundamental Rights, which extend the right of property to legal persons, strike a discordant note by comparison with other international human rights instruments. The chapter investigates the origins of this incongruity. It shows that, paradoxically and contrary to the prevailing view, the rationale for the extension in the ECHR was to enable states to counteract the adverse social and economic impact of untrammelled exploitation of property and accumulation of profit. The chapter then examines the jurisprudence of the European Court of Human Rights (ECtHR) through this prism and considers how the Court may recover the normative ideals of human rights law. It also draws out the implications and challenges for the interpretation of IP rights in the EU Charter of Fundamental Rights.

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.

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.

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