scholarly journals The Impact of the ECHR and the Case law of the ECtHR on Civil Procedure in Ukraine

2021 ◽  
Vol 4 (1) ◽  
pp. 79-101
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Civil Procedure ◽  
Fair Trial ◽  
Point Of View ◽  
International Standards ◽  
National Legislation ◽  
National Courts ◽  
The Impact

The article addresses the impact of the ECHR and the case law of the ECtHR on civil procedure in Ukraine. In the context of the provisions of national legislation and judicial practice, the authors analyse the areas of the harmonization of national legislation with the requirements of the ECHR and the practice of the ECtHR in light of the 2016 constitutional reform of justice and the new edition of the Civil Procedure Code of Ukraine. Special attention is paid to the embodiment of the rule of law principle during a trial in civil cases and the implementation of international standards of the right to a fair trial (para. 1 Art. 6 of the ECHR). From the point of view of institutional interaction between the ECtHR and national courts, the procedures of pilot judgments, the review of the case in exceptional circumstances was analysed. Keywords: Convention for the Protection of Human Rights and Fundamental Freedoms, European Court of Human Rights, right to a fair trial, rule of law, pilot judgment, review of the case in exceptional circumstances, Ukraine.

scholarly journals CRITERION OF A FAIR TRAIL: INTERNATIONAL STANDARDS AND ITS IMPLEMENTATION BY NATIONAL JUSTICE

2017 ◽  
pp. 0-0
Author(s):  
Анатолий Ковлер ◽  
Anatoliy Kovler
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
Point Of View ◽  
International Standards ◽  
European Convention ◽  
National Courts ◽  
Judicial Practice ◽  
European Court ◽  
Venice Commission

International standards of a fair trial were created by centuries of judicial practice and are stipulated by the international and regional pacts and conventions, as well as by the reports and opinions of the Venice Commission. The case-law of the European Court of Human Rights concerning complains against violations of a right to a fair trial are also of a great importance from the point of view of an implementation by the national courts of the European Convention on Human Rights. The European Convention on Human Rights in its Article 6 “Right to a fair trial” — a “core” article of the Convention, provides such standards of a fair trial as a public hearing within a reasonable time by an independent and impartial court established by law, judgment must be pronounced publicly. Besides these standards the Convention suggests some procedural guarantees of a fair trial everyone must be informed promptly of the nature of an accusation against him, he has a right to defend himself of though legal assistance ant to examine witnesses, etc. The case-law of the European Court on Human Rights shows that practically all European countries, including Russia, have problems with the implementation of the Convention’s standards into the practice of justice. That is why the Article 6 remains the most “suggested” complain of the applicants.

Reflectarea jurisprudenței Curții de Justiție a Uniunii Europene privind clauzele abuzive în materia executării silite în dreptul român, în special în ceea ce privește regimul contestației la executare

2021 ◽  
Vol 2021 (2021) ◽  
pp. 208-224
Author(s):  
Mirela STANCU ◽  
Keyword(s):  
European Union ◽  
Present Article ◽  
Case Law ◽  
Civil Procedure ◽  
Point Of View ◽  
The European Union ◽  
National Legislation ◽  
National Courts ◽  
Court Of Justice ◽  
Unfair Terms

"Although the jurisprudence of the Court of Justice of the European Union is commonly reflected in the practice of the national courts, unfortunately, more than ten years after Romania's accession to the European Union, there are still some syncopations at the legislative level. There are an example in that sense some of the provisions of the Romanian Code of Civil Procedure relating to the contestation against the forced execution (contestatia la executare). Indeed, on closer examination, it appears that these provisions do not fully comply with the requirements which, according to the jurisprudence of the Court of Justice of the European Union, must be respected by national legislation in order to stop the application of unfair terms in contracts concluded by a professional with consumers. The present article aims at such an examination of the provisions of the Romanian Code of Civil Procedure regarding the contestation against the forced execution from the perspective of the jurisprudence of the Court of Justice of the European Union in the field of unfair terms. Thus, after having identified from the jurisprudence of the Court of Justice the requirements that must be met by national legislation in order to stop the application of unfair terms in contracts concluded by a professional with consumers, the provisions of the Romanian Code of Civil Procedure relating to the contestation against the forced execution, the stay of execution and the time limit for the contestation will be examined from the perspective of the said jurisprudence. Finally, and without claiming to be exhaustive, in this article, the author also puts forward a possible interpretation of the national provisions examined from the point of view of the case law of the Court of Justice."

scholarly journals The Impact of International Social Security Standards on Formalization of Social Risks in National Legislation

2017 ◽  
pp. 97-105
Keyword(s):  
Social Security ◽  
The State ◽  
Point Of View ◽  
International Standards ◽  
The Self ◽  
International Treaties ◽  
National Legislation ◽  
Social Risks ◽  
Security Standards ◽  
The Impact

The article deals with the international standards of social security from the position of stipulation of social risks in them. On the basis of the state self-limitation theory, the author concludes that there exists a process of self-limitation in the field of social security. By ratification of international treaties establishing standards in the field of social security, a state limits itself. Thereby the state makes a commitment to support its citizens in prevention, overcoming, and compensation of social risks. It demands from the state to formalize the social risks in the national legislation. It is proved that formalization of social risks in national legislation is an inner aspect of the self-limitation process in the field of social security. Some social risks might be also stipulated in international documents, in particular, in the UN and the International Labour Organization instruments. Both internal and external aspects of the self-limitation process in the field of social security are in close interrelation. At the same time, implementation of certain international standards entails significant financial and organizational budget expenditures, therefore such standards can be implemented in part. From the author’s point of view, it is the internal aspect of self-limitation that serves as a guarantee from arbitrariness of a legislator in formalization of social risks.

scholarly journals Reflection of Decisions of the European Court of Human Rights on Impartiality and Independence of National Courts in Context of the Right to a Fair Trial

2021 ◽  
Vol 5 (1) ◽  
pp. 67-90
Author(s):  
Alla Demyda
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
National Courts ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Principles Of Justice ◽  
The Right

The article focuses on the principle of impartiality and independence of judiciary as a part of the right to a fair trial according to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In particular, an account will be taken of the case law of the European Court of Human Rights in matters of applications from national judges. The article considers the reflection of the decision of the European Court of Human Rights on the amendment of national legislations and the amendment of the provisions of the national constitutions regarding the principles of justice.

ANONIMNI SVEDOCI I ZAŠTITA LjUDSKIH PRAVA

2021 ◽  
pp. 277-296
Author(s):  
Veljko Turanjanin ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
Step Test ◽  
European Convention ◽  
Criminal Proceedings ◽  
National Legislation ◽  
European Court ◽  
The Right ◽  
Insufficient Knowledge

Тhe author deals with the problem of anonymous witnesses in the context of the right to a fair trial in the jurisprudence of the European Court of Human Rights. One of the problems in the application of Article 6 of the European Convention on Human Rights is related to the testimonies of anonymous witnesses in criminal proceedings. The case law of the European Court of Human Rights has developed certain criteria that must be followed in national legislation, but it is obvious that there is insufficient knowledge regarding this problem, as well as the reluctance to apply the mentioned rules. The standards developed by the ECtHR are very important for national laws and jurisprudence. The author explains the development of a three-step test that needs to be examined when assessing a violation of the right to a fair trial, through an analysis of a multitude of judgments, in order to provide guidance on the application of Article 6 § 3 (d) of the European Convention on Human Rights. After introductory considerations, the author explains who can be a witness under the Convention, since this question is raised independently of national legislation, and then explains the right to examine witnesses, the admissibility of testimonies by anonymous witnesses and the examination of the three-stage test, and gives concluding remarks.

scholarly journals Inconsistent Adjudication – A Violation of the Right to Fair Trial Under the European Convention on Human Rights

2021 ◽  
Vol 69 (2) ◽  
pp. 315-338
Author(s):  
Dragoljub Popović
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
National Courts ◽  
National Jurisdiction ◽  
Fair Hearing ◽  
Grand Chamber ◽  
The Right ◽  
Domestic Case

The ECtHR does not review decisions of national courts of the States Parties to the European Convention. However, it has developed a pattern in its case law to find a violation of the Convention on the grounds that the fair hearing lacked if there was a case law inconsistency at the level of national jurisdiction. The ECtHR case law was settled in a Grand Chamber case against Turkey in 2011. To find a violation under Article 6 of the Convention the ECtHR requires two tests. Firstly, it must establish the existence of a profound and long-standing inconsistency in the domestic case law, and secondly, the ECtHR raises the issue of a mechanism aimed at removing the inconsistency. If the mechanism does not exist, or if it applied ineffectively, the ECtHR finds a violation of human rights. The author suggests the ECtHR should revisit its jurisprudence.

scholarly journals Komentarz na kanwie Uchwały Naczelnego Sądu Administracyjnego I FPS 1/21 – sądowa kontrola instrumentalnego wszczęcia postępowania karnego skarbowego a prawo do sądu

2021 ◽  
Vol 3 (31) ◽  
pp. 151-162
Author(s):  
Adam Szymacha ◽  
Kamil Rogalski
Keyword(s):  
Rule Of Law ◽  
Comparative Law ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Legal Method ◽  
The Right ◽  
The Impact

The purpose of the article/hypothesis: The presented article focuses on a new resolution of the Supreme Administrative Court I FPS 1/21. In this resolution an assessment of instrumental initiation of criminal fiscal proceedings in order to suspend the running of the limitation period of a tax liability has been undertaken. The Supreme Administrative Court assessed that administrative courts have the right to examine the legitimacy of initiation of such proceedings. This position is important insofar as it also touches upon the issue of the right to a fair trial, as well as the right to property and legal certainty. The main aim of this article is to check the impact of this resolution on described fundamental rights. Methodology: This article will use the comparative law method. Especially the case law of different courts will be shown. The dogmatic-legal method will also be used as an auxiliary. Results of the research: This resolution is crucial for the fundamental right for fail trial. It has also impact on the right to property and principle of legal certainity. It may also be some element that strengthens the rule of law.

scholarly journals Significance of the case of Urgenda for the development of climate litigations in Europe

2021 ◽  
pp. 249-265
Author(s):  
Ljubomir Tintor
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
International Law ◽  
Case Law ◽  
State Responsibility ◽  
National Courts ◽  
European Court ◽  
Combat Climate Change ◽  
The Impact ◽  
Harmful Effects

The article comprehensively analyses the case of Urgenda v. the Netherlands as the first successful climate litigation in Europe. The article analyses the arguments on which the Dutch courts established state responsibility for human rights violations caused by the failure of the state in the implementation of policies to combat climate change. The significance of this case is pointed out not only for Dutch, but also for international law. The second part of the article will show how the Urgenda case affected climate litigation that began to appear before national courts across Europe. Through a comparative analysis of cases, it will be pointed out that there is uneven case law in climate litigation before national courts. It will be seen how the Urgenda case had an impact on the initiation of climate disputes and before the European Court of Human Rights. Particular attention is paid to the issue of the connection between the impact of climate change and the torture caused by the harmful effects of global warming, which was initiated before the European Court of Human Rights in Strasbourg. At the end of the article, the perspective of climate litigation is considered.

scholarly journals LEGAL BASIS FOR COMPENSATION BY THE STATE TO THE VICTIM FOR THE DAMAGE CAUSED BY A CRIMINAL ОFFENSE

2021 ◽  
Vol 76 (3) ◽  
pp. 143-149
Author(s):  
Serhii Kuzmenko ◽  
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
The State ◽  
State Budget ◽  
Criminal Offense ◽  
National Legislation ◽  
National Courts ◽  
European Court ◽  
The Impact

The article focuses on the mechanism of compensation to the victim for the damage caused by a criminal offense and the positive obligations of the state to guarantee to everyone under its jurisdiction the effective use of property rights and its restoration in case of violation. Attention is drawn to the long-term absence in the national legislation of Ukraine of a mechanism of compensation at the expense of the State Budget of Ukraine for damage caused to the victim as a result of a criminal offense. The article analyzes the impact of the conclusions made by the European Court of Human Rights on the jurisprudence of domestic courts of Ukraine with regard to the inadmissibility of the applicant's complaint set out in the Court's judgment in «Petliovannny vs. Ukraine». On the other hand, there have been included examples of application of the rule of law and recognition by courts of violations of the guarantees, enshrined in Part 1 of the First Protocol to the Convention, due to the long-term lack in the national legislation of the procedure of compensation provided from the State Budget of Ukraine for unlawful destruction of property. The article analyzes and compares the practice of the European Court of Human Rights and national courts regarding the interpretation of similar legal relations guaranteed by Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms of every natural or legal person’s right to peaceful enjoyment of their possessions. Attention is drawn to the need to create and apply a mechanism to provide the victim with compensation for the damage caused by a criminal offense. It is proposed to continue research in this area in comparison with other areas of application of Article 1 of the First Protocol in order to facilitate amendments to national legislation aimed at unconditional observance of human rights provided by Article 41 of the Constitution of Ukraine on inviolability of property rights.

scholarly journals The Impact of the Human Rights Convention on the Development of the Administrative Judiciary of Ukraine

2021 ◽  
Vol 4 (1) ◽  
pp. 223-231
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
Easy Task ◽  
European Court ◽  
Administration Of Justice ◽  
Administrative Proceedings ◽  
The Right ◽  
The Impact

The administration of justice on the basis of a fair trial is not an easy task, as both parties to the dispute are usually certain of their rightness, which they are trying to prove to the court. If one of these parties is a state or its bodies, the judiciary can become a dangerous tool to influence any process in society. Specific cases against Ukraine show that high-ranking officials of all periods of power did not neglect the possibility of influencing the outcome of the case, pursuing goals not related to the administration of justice. The influence of the European Convention and the case law of the European Court of Human Rights has become decisive for Ukraine in the formation of a separate procedure for the administration of justice: administrative proceedings. Some aspects of its functioning are investigated in this work, in particular, the preconditions for the differentiation of administrative proceedings in Ukraine, the problem of defining the concept of the authorities and the state as a party to the case, the implementation of the right to a fair trial in administrative proceedings, access to court and the principle of the equality of parties; oral and open administrative proceedings; adversarial proceedings and the right of the court to establish the circumstances of the administrative case. Keywords: administrative proceedings; the right to a fair trial; access to court; the principle of equality of parties; oral and open administrative proceedings; the right of the court to establish the circumstances of the administrative case.

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