Ricorsi individuali alla Corte europea dei diritti umani riguardanti questioni giŕ esaminate o in corso di esame da parte di altri organismi internazionali di controllo

2012 ◽  
pp. 608-642
Author(s):  
Lorenza Mola
Keyword(s):  
Human Rights ◽  
Case Law ◽  
International Investment ◽  
The Other ◽  
Coordination Mechanism ◽  
Legal Person ◽  
European Court ◽  
Protection Of Human Rights ◽  
The One ◽  
The Individual

The paper deals with the case law of the European Commission of Human Rights and of the European Court of Human Rights on the admissibility of individual applications on matters already submitted to other international bodies, under Art. 35, para. 2, letter b) ECHR. It examines the relevant procedural aspects and reviews how the Strasbourg bodies have interpreted the criteria set in this clause, which coordinates parallel international proceedings on the same matters, i.e. (i) the identity of parties, grounds and facts; (ii) the concluded or concurrent exam of the claim within other international mechanisms of protection of human rights open to individuals; and (iii) the equivalent character of these other proceedings in relation to the procedure before the European Court of Human Rights. It does so, particularly with respect to two recent decisions concerning cases where parallel proceedings on the same matter were brought, in the one case, by the same person before the Court as well as to the attention of the EU Commission, and, in the other case, by a legal person before the Court and by its shareholders before international investment arbitral tribunals. It highlights that the ‘reformed' Court has normally followed the prior Commission's case law but has also developed a more systematic and qualified approach to each admissibility criterion as well as to the overall objective of such coordination mechanism, in order both to avoid a plurality of international procedures on the same matter, on the one hand, and to afford the individual an international means of enforcement of her/his rights, on the other hand.

Cultural Rights of MigrantsLiving Together in Dignity?

2021 ◽  
pp. 175-195
Author(s):  
Bianca Gutan
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Global Migration ◽  
Cultural Rights ◽  
European Court ◽  
Living Together ◽  
Big Picture ◽  
Protection Of Human Rights ◽  
The Individual ◽  
Constitutional Identity

The growing and multifarious challenges (political, legal, social, and economic) that global migration raises for contemporary states requires solutions related not only to constitutional identity, but also to a better protection of human rights. Although less visible in the ‘big picture’, cultural rights are an important category of human rights. An absent or a precarious protection of these rights might affect other rights. That is why a balance must be struck between society’s needs and the cultural rights of the individual. In this context, questions may be asked: could there be common points regarding the cultural rights of migrants and of minorities in Europe? Is ‘living together’ a concept that can ensure the full respect of the human dignity of migrants, especially as regards cultural rights? The chapter attempts to answer some of these questions, mainly through the prism of the case law of the European Court of Human Rights (ECtHR).

The Action of Legal Persons in the European System of Human Rights Protection – Collective or Individual Interest?

2013 ◽  
Vol 12 (3) ◽  
pp. 321-341
Author(s):  
Marjorie Beulay
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Person ◽  
International Protection ◽  
Human Rights Protection ◽  
Collective Interest ◽  
Rights Protection ◽  
European Court ◽  
Globalization Of Law ◽  
The Individual

Abstract Human Rights are accustomed to being linked to individual interests, i.e. to defend the rights of individuals. But the development of their international protection has led to emphasizing new realities. With the globalization of law, the globalization of the subjects of international law has also appeared. If States gradually act collectively thanks to international organizations, individuals seem to follow the same path in forming collective entities named legal persons, which are entitled to rights. The main problem of this situation is defending these rights in front of international courts and, in particular, in front of the European Court of Human Rights. Representing a community leads to defending a collective interest, however, it is not easy to distinguish between the rights of the legal person itself and the rights of the collectivity the legal person is representing. Despite the fiction of the legal person, these entities seem to be collective claimants and consequently to defend a collective interest. Can we conclude that the actions of legal persons before European bodies of Human Rights protection are actions with a collective aim? Indeed this situation implies needing to define which entity retains cited rights and which interest is being defended, that of the individual or that of a collectivity of individuals? This article looks for some answers in the case law of the European Court, which can be considered unequivocal in the light of the case law of other jurisdictions.

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.

scholarly journals The scope of the margin of appreciation in the jurisprudence of the European Court of Human Rights

2021 ◽  
Author(s):  
K. O. Trykhlib
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
European Consensus ◽  
European Court ◽  
Margin Of Appreciation ◽  
Protection Of Human Rights ◽  
The Individual ◽  
Restrictive Measures ◽  
Discretionary Powers

The article analyzes the essence and features of the application of the doctrine of margin of appreciation in the jurisprudence of the European Court of Human Rights. It has been established that the margin of appreciation can be wide or narrow. The factors influencing the scope of the state’s margin of appreciation while effectively ensuring and protecting the rights guaranteed by the European Convention on Human Rights have been identified and examined. The core criteria and principles of law, which are applied and developed in its case-law by the European Court of Human Rights when granting a certain scope of discretionary powers, have been studied. It is concluded that the key task of the European Court of Human Rights is to exercise effective review over the ensuring and protection of human rights and freedoms enshrined by the European Convention on Human Rights. When defining and granting the margin of appreciation, the European Court of Human Rights is guided by the principles of subsidiarity and proportionality. The scope of the state’s discretion always depends on the circumstances of each particular case, the type and specifics of the violated and/or limited right, its significance for the individual, the characteristics of competing interests, the background and context of the interference, the presence or absence of the European consensus on the issue at stake, the purpose of the interference, the degree of its intensity and the duration, the nature of restrictive measures and their results, as well as the proportionality of the restriction of human rights and freedoms.

Wyrok ETPC jako precedens wiążący quasi de iure a efektywność porządku Europejskiej Konwencji Praw Człowieka (perspektywa teoretycznoprawna)

2017 ◽  
pp. 7-29
Author(s):  
Bartosz Liżewski
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
European Convention ◽  
International Court Of Justice ◽  
Stare Decisis ◽  
European Court ◽  
International Court ◽  
Protection Of Human Rights ◽  
The One

In the system of the European Convention on Human Rights (ECHR or the Convention), the basic formula for creating standards for the protection of human rights is to define their understanding of and possible modifications or changes as a result of a law-making interpretation of the provisions of the Convention. The substantive rules of the Convention since its inception, not only have not changed (they were amended or derogated), but in addition are very general. This causes, that the way their understanding sets the European Court of Human Rights (ECHR or tribunal) forming in a legislative standards for the protection of human rights. That raises the interesting question of theoretical, since in public international law on the one hand the judgment of an international court is recognized as an auxiliary source of international law (art. 38 sec. 1 point d Statute of the International Court of Justice), while not applicable rule of stare decisis, meaning legally bound judgment precedent of other courts in similar cases. If, however, a violation of well-established case law of the ECHR by the national authorities is the reason for the judgment of the committee of three judges without a hearing (art. 28 paragraph. 1 point b ECHR). Judgments of the Court (the monopoly of interpretation of the ECHR) must be respected and enforced in order of national law (Art. 46 paragraph. 1 and 2 of the ECHR). This raises the natural question of the scope of their precedensowości for the tribunal and law enforcement organs in the national legal system. It is with this problem both theoretical and practical. The obvious fact is that the decision of the ECHR does not create a precedent in the sense of how suitable term in common law. However, its decisions affect application of the law on domestic, not only in reality, but partly also legal, so that it can be concluded that the judgment has the power of the normative and, to some extent binding. But what is the scope of the precedent character of this sentence? The answer to this question is the subject of considerations to be taken in the paper.

THE RIGHT TO RESPECT FOR CORRESPONDENCE IN UNDERSTANDING THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2017 ◽  
Author(s):  
Yevhen Bilousov ◽  
◽  
Nataliia Kordii ◽  
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
Private Life ◽  
Scientific Article ◽  
Professional Activities ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Individual ◽  
The Right

Article 8 of the Convention for the Protection of Human Rights is called "the right to respect for private and family life", thus establishing at the international level the legal basis for the exercise of the right to privacy. From the content of this article it follows that this right has four components: private and family life, correspondence and housing. The scientific article is devoted to the study of the right to respect for correspondence under Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. From the literal interpretation of the convention provisions and as evidenced by the case law of the European Court of Human Rights, the implementation of the studied law goes beyond the private life of the individual and acquires special features of its implementation in other spheres of life, such as professional activities. The author analyzes the case law of the European Court in order to identify, generalize and structure the components (content) of the concept of "correspondence", given the possibility of practical use of such information due to the fact that when considering a particular application, the Court assesses whether and types of applied means of communication. This scientific article examines the implementation of the right to correspondence in civil and criminal law, which indicates the gradual expansion of the relevant regulations to different types of legal relations. In examining this issue on the basis of convention provisions and analysis of the case law of the Court, the author has studied and presented in a generalized form the grounds for lawful interference with the right to respect for correspondence.

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”.

Ummah’s Rights or Human Rights? Universalism, Individualism, and Islamic Ethics in the Twenty-first Century

2010 ◽  
Vol 27 (3) ◽  
pp. 1-23 ◽  
Author(s):  
Marie-Luisa Frick
Keyword(s):  
Human Rights ◽  
First Century ◽  
The Other ◽  
Moral Code ◽  
Bill Of Rights ◽  
Islamic Ethics ◽  
Specific Content ◽  
Societal Needs ◽  
The One ◽  
The Individual

Against the background of the trend of Islamizing human rights on the one hand, as well as increasing skepticism about the compatibility of Islam and human rights on the other, I intend to analyze the potential of Islamic ethics to meet the requirements for vitalizing the idea of human rights. I will argue that the compatibility of Islam and human rights cannot be determined merely on the basis of comparing the specific content of the Islamic moral code(s) with the rights stipulated in the International Bill of Rights, but by scanning (different conceptions of) Islamic ethics for the two indispensable formal prerequisites of any human rights conception: the principle of universalism (i.e., normative equality) and individualism (i.e., the individual enjoyment of rights). In contrast to many contemporary (political) attempts to reconcile Islam and human rights due to urgent (global) societal needs, this contribution is solely committed to philosophical reasoning. Its guiding questions are “What are the conditions for deriving both universalism and individualism from Islamic ethics?” and “What axiological axioms have to be faded out or reorganized hierarchically in return?”

Rola uzasadnienia sądowego w realizacji prawa do rzetelnego procesu sądowoadministracyjnego– standard strasburski

2014 ◽  
pp. 13-31
Author(s):  
Katarzyna Grzelak-Bach
Keyword(s):  
Human Rights ◽  
Legal Reasoning ◽  
Case Law ◽  
Legal Order ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings ◽  
Court Proceedings ◽  
Basic Level

Following a brief introduction of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the author begins by analyzing case law from the European Court of Human Rights regarding the legal reasoning in judicial proceedings. The main premise of this paper is to present a formula for preparing legal reasoning in administrative court proceedings. The author draws attention to the role of judges who, in the process of adjudication, should apply creative interpretation of the rules of law, when they see errors or omissions in legislative provisions, or blatant violations of the European legal order. The conclusion of those deliberations finds, that the process of tailoring the approach to meet Strasbourg’s requirements should, on a basic level, be at the discretion of judges rather than the legislators.

To Discriminate in Order to Fight Discrimination

2017 ◽  
Author(s):  
Dolores Morondo Taramundi
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
The Other ◽  
The United Kingdom ◽  
European Court ◽  
Main Technique ◽  
Antidiscrimination Law ◽  
The One ◽  
Paradoxical Results ◽  
Conflicts Of Rights

This chapter analyses arguments regarding conflicts of rights in the field of antidiscrimination law, which is a troublesome and less studied area of the growing literature on conflicts of rights. Through discussion of Ladele and McFarlane v. The United Kingdom, a case before the European Court of Human Rights, the chapter examines how the construction of this kind of controversy in terms of ‘competing rights’ or ‘conflicts of rights’ seems to produce paradoxical results. Assessment of these apparent difficulties leads the discussion in two different directions. On the one hand, some troubles come to light regarding the use of the conflict of rights frame itself in the field of antidiscrimination law, particularly in relation to the main technique (‘balancing of rights’) to solve them. On the other hand, some serious consequences of the conflict of rights frame on the development of the antidiscrimination theory of the ECtHR are unearthed.

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