scholarly journals PROBLEM ASPECTS OF EXECUTION OF PUNISHMENT IN THE FORM OF ARREST OF CONVICTED SERVICEMAN

2020 ◽  
Vol 2020 (2) ◽  
pp. 53-61
Author(s):  
Ostapchuk L. G. ◽  
◽  
Kondratenko N. V. ◽  
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
Military Service ◽  
International Standards ◽  
European Convention ◽  
Criminal Punishment ◽  
Training Course ◽  
Domestic Legislation ◽  
The Right

The article analyzes the provisions of criminal law and international law governing the punishment in the form of arrest of servicemen. It is determined that the studied type of criminal punishment in relation to servicemen has its own specifics since servicemen serve their sentences directly during military service. Therefore, in the process of serving a sentence in the form of arrest, convicted servicemen do not lose their special status, which is regulated by departmental normative-legal acts. The theory of criminal law of Ukraine and judicial practice are proved to not previously know such a type of criminal punishment as arrest. It is determined that of special interest are the issues of studying the peculiarities of the execution of punishment in the form of arrest of convicted servicemen, as well as the compliance of domestic legislation with international law. Among the main problems of the legislation of Ukraine, which regulates the legal procedure for execution and serving a sentence in the form of arrest by convicted servicemen, it is singled out the inconsistency of domestic legislation with international standards. There is the need to involve qualified personnel to work with convicted servicemen, who must be carefully selected, properly trained, paid for at the professional level and have a status that is respected in civil society. The European Penitentiary Regulations stipulate that before personnel can take up their duties, they must undergo a training course in the performance of their general and specific tasks and pass theoretical and practical examinations, and a training course must be completed for all personnel, including a study of international and regional instruments and norms in the field of human rights protection, particularly the European Convention on Human Rights and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The analysis of domestic and international law indicates that special attention should be paid to the rules that ensure the right of a convicted serviceman to medical care, the convict’s right to purchase food and basic necessities, the right to visit relatives and friends, telephone conversations, the right to convicts’ separate detention of different sexes, the right to respect for their dignity, etc. Therefore, the reforms implementation in the penitentiary sphere is quite appropriate at present. First of all, it is necessary to bring military penitentiary institutions in line with the requirements of international legal acts that determine the rules for the treatment of convicts and prisoners, as most of them are not recommended, but mandatory. Key words: arrest, military criminal offenses, serviceman, guard.

International legal dimension of the right to conscientious objection: considerations with respect to the ECtHR judgment in Dyagilev v. Russia

2021 ◽  
Vol 11 (2) ◽  
pp. 54-71
Author(s):  
Ruslan Kantur
Keyword(s):  
Human Rights ◽  
International Law ◽  
Military Service ◽  
Conscientious Objection ◽  
European Convention ◽  
Article 9 ◽  
Margin Of Appreciation ◽  
Domestic Jurisdiction ◽  
The Right ◽  
Minimum Criteria

The article delves into international legal aspects of the enjoyment of the right to conscientious objection. It is argued that the collision between the permissive norm of international law providing for sovereign discretion to introduce and enforce domestic rules on matters which are essentially within the domestic jurisdiction of states, including those relating to compulsory military service, and the mandatory norm of international law ensuring the right to conscientious objection. The jurisprudence of the Human Rights Committee and the European Court of Human Rights pivots upon the assumption that the right to conscientious objection is derived from the right to the freedom of thought, religion, and conscience and is covered by the international human rights treaties enshrining the latter (including Article 9 of the European Convention on Human Rights and Fundamental Freedoms). It is revealed that the standard which has been found in ECtHR jurisprudence means that Article 9 defends the opposition to military service, where such opposition is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, with states parties retaining a certain margin of appreciation and being able to establish assessment procedures to examine the seriousness of the individual’s beliefs and to prevent the abuse of the right. However, in Dyagilev v. Russia the Court did not take into account that the circumstances of the case point out the actual unlimited margin of appreciation in this area, which leads to the situation when the conscript had had to provide “evidence” that he was a pacifist (in the absence of legally outlined minimum criteria helping assess the substantiation), but not to substantiate the very request by the fact that he shared pacifist views. Consequently, such a broad margin of appreciation implies that the state abuses its sovereignty, for the procedure of the examination of requests runs counter to the purpose of the right to the freedom of conscience and, consequently, the right to the conscientious objection.

New Trends in Religious Liberty and the European Court of Human Rights

2010 ◽  
Vol 12 (3) ◽  
pp. 266-279 ◽  
Author(s):  
Ian Leigh
Keyword(s):  
Human Rights ◽  
Religious Education ◽  
Military Service ◽  
Religious Freedom ◽  
Religious Affiliation ◽  
The State ◽  
Religious Liberty ◽  
European Convention ◽  
European Court ◽  
The Right

This article analyses recent trends in the jurisprudence of the European Court of Human Rights concerned with the right to freedom of thought, belief and religion (Article 9, European Convention on Human Rights) and the right of parents to respect by the state for their religious and philosophical views in the education of their children (Article 2, Protocol 1).1 These developments include notable decisions concerned with protection from religious persecution in Georgia, with religious education in Norway and Turkey and with the display of crucifixes in state schools in Italy. It is apparent that the European Convention religious liberty jurisprudence increasingly stresses the role of the state as a neutral protector of religious freedom. For individuals religious freedom is now also recognised to include not only the right to manifest their religious belief but also freedom from having to declare their religious affiliation. As the religious liberty jurisprudence comes of age, other significant developments, for example in relation to conscientious objection to military service, can be anticipated.

The right to the truth in international law: fact or fiction?

2006 ◽  
Vol 88 (862) ◽  
pp. 245-273 ◽  
Author(s):  
Yasmin Naqvi
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
The State ◽  
Legal Concept ◽  
The Right ◽  
Practical Implications ◽  
Legal Right

The right to the truth has emerged as a legal concept at the national, regional and international levels, and relates to the obligation of the state to provide information to victims or to their families or even society as a whole about the circumstances surrounding serious violations of human rights. This article unpacks the notion of the right to the truth and tests the normative strength of the concept against the practice of states and international bodies. It also considers some of the practical implications of turning “truth” into a legal right, particularly from the criminal law perspective.

Diritto a una tutela giurisdizionale effettiva e revisione dei processi penali: la Corte costituzionale e il caso Dorigo

2009 ◽  
pp. 85-110
Author(s):  
Stefano Dorigo ◽  
Pietro Pustorino
Keyword(s):  
Human Rights ◽  
International Law ◽  
Critical Comment ◽  
European Convention ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
European Court ◽  
The Right ◽  
Italian Constitution ◽  
Italian Norms

- The work is a critical comment to the judgment of the Italian Constitutional Court of 30 April 2008, n. 129, on the reopening of the criminal proceedings requested by the European Court of Human Rights. The work begins dealing deeply with the problem of the customary nature in international law of the right to a fair trial and the consequent possibility to invoke, in the framework of the Italian national system, Article 10, paragraph 1, of the Constitution. The authors suddenly stress the relevance of other constitutional norms in order to recognize a constitutional or quasi-constitutional rank to the norms of the European Convention on Human Rights, demonstrating that the Italian Constitution offers several possibilities on the matter. A very recent judgment of the Court of Cassation, adopted on 11 December 2008, confirms this opinion interpreting the Italian norms on the reopening of the criminal proceeding on the basis of Articles 111 and 117 of the Constitution.

UN Targeted Sanctions, Legal Safeguards and the European Convention on Human Rights

2003 ◽  
Vol 72 (2) ◽  
pp. 159-214 ◽  
Author(s):  
Iain Cameron
Keyword(s):  
Human Rights ◽  
International Law ◽  
Security Council ◽  
Qualitative Change ◽  
European Convention ◽  
The One ◽  
Human Rights Norms ◽  
The Right ◽  
Ec Law ◽  
Legal Mechanism

AbstractThe introduction of Security Council targeted financial and travel sanctions against individuals involves a qualitative change in Security Council sanctions policy, which has previously been directed against governmental entities. Targeted sanctions can be a useful weapon in the international community's attempts to pressurize repressive regimes into accepting change. However, there is a problem in using against individuals, a powerful international law mechanism designed for pressurizing states. Individuals' rights under domestic and international law can be severely affected by such sanctions. The blacklists created under Resolutions 1333 and 1390 cause particular problems, as these are quasi-criminal in nature and in practice entail an allegation that the targeted persons are terrorists or terrorist associates. However, there is no international legal mechanism for checking or reviewing the accuracy of the information forming the basis of a sanctions committee blacklisting or the necessity for, and proportionality of, measures adopted. The implementation against non-governmental or quasi-governmental entities of targeted Security Council sanctions in European states is almost certainly contrary to European human rights norms, in particular, the right of access to court under Article 6 ECHR. There is thus a conflict between obligations under the United Nations Charter (UNC) on the one hand and the ECHR (and for EU states, EC law) on the other. Mechanisms can, however, be created which provide a broadly similar level of protection to that provided by Article 6 ECHR while maintaining whatever effectiveness targeted sanctions possess, so there is no logical incompatibility between obligations under the ECHR and Security Council sanctions.

scholarly journals A COMPARATIVE ANALYSIS OF THE PRACTICE OF THE UNITED KINGDOM AND MALAYSIA IN RESPECT OF FREEDOM OF EXPRESSION

2011 ◽  
Author(s):  
Nazli Ismail @ Nawang
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
International Law ◽  
Freedom Of Expression ◽  
Great Influence ◽  
European Convention ◽  
International Treaties ◽  
The United Kingdom ◽  
The Uk ◽  
The Right

International law, particularly treaties on human rights, has great influence on the development of the right to freedom of expression. The application of international treaties is very much dependant on the constitutions of individual countries and these constitutions to a large extent are dissimilar from one to another. The position in the United Kingdom is relatively unique since the country has no codified written constitution to safeguard the fundamental right to freedom of expression and as a result it was regarded as residual in nature. Nonetheless, the provisions of the international treaties, particularly the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) have altered this position and accordingly freedom of expression has been formally incorporated into the UK law via the Human Rights Act 1998 (HRA). Meanwhile, the international human rights treaties is considered to have less influence in Malaysia arguably since the country has a written constitution (the Federal Constitution) that contains a specific part on fundamental liberties including the right to freedom of expression. Keywords: International law, treaties, freedom of expression.

scholarly journals Seeking Compatibility in Preventing Crime with Artificial Intelligence and Ensuring a Fair Trial

2021 ◽  
Vol 15 (1) ◽  
pp. 25-52
Author(s):  
Kelly Blount
Keyword(s):  
Artificial Intelligence ◽  
Human Rights ◽  
Criminal Law ◽  
Justice System ◽  
New Technologies ◽  
Fair Trial ◽  
European Convention ◽  
Presumption Of Innocence ◽  
Direct Effects ◽  
The Right

The justice system is increasingly reliant on new technologies such as artificial intelligence (AI). In the field of criminal law this also extends to the methods utilized by police for preventing crime. Though policing is not explicitly covered by Article 6 of the European Convention of Human Rights, this article will demonstrate that there can be adverse effects of policing on fair trial rights and make the analogy to criminal investigations as a recognized pre-trial process. Specifically, it will argue that policing that relies on AI to predict crime has direct effects on fair trial processes such as the equality of arms, the presumption of innocence, and the right to confront the evidence produced against a defendant. It will conclude by challenging the notion that AI is always an appropriate tool for legal processes.

scholarly journals THE RIGHT TO LEGAL ASSISTANCE AND REPRESENTATION – GENERAL ASPECTS

2014 ◽  
Vol 8 (4) ◽  
pp. 113-117
Author(s):  
Roxana Matefi
Keyword(s):  
Human Rights ◽  
International Law ◽  
Current Paper ◽  
European Convention ◽  
Legal Assistance ◽  
African Charter ◽  
General Aspects ◽  
The Right

The current paper wishes to generally analyze the right to legal assistance and representation, a component of the right to be defended and of the right to an equitable trial, which is regulated in internal law as well as in international law, such as the European Convention of Human Rights or the African Charter on Human and Peoples’ Rights.

scholarly journals The Eritrean Military/National Service Programme: Slavery and the Notion of Persecution in Refugee Status Determination

Laws ◽  
2021 ◽  
Vol 10 (2) ◽  
pp. 28
Author(s):  
Sara Palacios-Arapiles
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
International Criminal Law ◽  
European Convention ◽  
National Service ◽  
Refugee Status ◽  
Refugee Convention

Despite the overwhelming evidence of human rights violations within the Eritrean Military/National Service Programme (“MNSP”), adjudication of asylum applications made by Eritreans remains a challenge. Narrow interpretations of “slavery” have created obstacles for protection under the 1951 Convention Relating to the Status of Refugees (“1951 Refugee Convention”). This article discusses MST and Others, the latest Country Guidance case on Eritrea issued by the UK Upper Tribunal Immigration and Asylum Chamber (“UTIAC”), and also the lead case E-5022/2017 of the Swiss Federal Administrative Court (“FAC”), which to a large extent replicated the UTIAC’s approach. The article focuses on how “slavery,” “servitude” and “forced labour” under article 4 of the European Convention on Human Rights (“ECHR”) have been interpreted in the British and Swiss case-law. While both, the British and the Swiss Courts, had recourse to the European Court of Human Rights’ (“ECtHR”) interpretation of article 4(1) ECHR (the right not to be subjected to slavery or servitude), they refused the applicability of international criminal law notions to this provision, and thus to the concept of “persecution” in article 1A(2) of the 1951 Refugee Convention. In doing so, the UTIAC and the FAC set unreasonable requirements to satisfy article 4(1) ECHR. Due to the very limited case-law pertaining to slavery by the ECtHR, the ECHR does not offer an appropriate framework for examining asylum applications of victims of slavery. It is therefore suggested that slavery cases are considered against a wider legal framework, which involves the examination of concepts developed by international criminal law (“ICL”). ICL has indeed developed a significant body of jurisprudence on the interpretation of the international law concept of “slavery” and its application to contemporary situations. The article contrasts the British and Swiss Courts’ position to develop an interpretative approach that connects different areas of international law, including not only international refugee law and international human rights law (“IHRL”), but also ICL. If applied in line with the principle of systemic integration and according to the overall purposes of the 1951 Refugee Convention, this approach would yield consistent results. Ultimately, this article seeks to assist asylum decision-makers and practitioners in the interpretation and application of the refugee definition to asylum applications of persons from Eritrea.

The Right to a Public Trial under Maltese Criminal Law

2014 ◽  
Vol 1 (2) ◽  
pp. 130-147
Author(s):  
Kevin Aquilina
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Case Law ◽  
The Other ◽  
European Convention ◽  
Public Hearing ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

This paper attempts to answer whether section 24(2) of the Maltese Official Secrets Act conforms, or is in conflict, with the right to a public hearing under section 39(3) of the Constitution of Malta and Article 10(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It reviews case law of the European Court of Human Rights on the right to a public hearing and concludes that Strasbourg case law has developed to allow restrictions upon this right even if they are not written down in this Convention. On the other hand, from a comparative exercise carried out with seven similar laws to the Maltese Official Secrets Act, it transpires that the Maltese provision is unique, does not find any counterpart in these seven laws surveyed and, worse still, appears to conflict with Article 6, paragraph 1, of the European Convention.

Sign in / Sign up

Export Citation Format

Share Document