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.

scholarly journals ADMINISTRATION OF JUSTICE DURING THE COVID-19 PANDEMIC AND THE RIGHT TO A FAIR TRIAL

2021 ◽  
Author(s):  
Krešimir Kamber ◽  
Lana Kovačić Markić
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
World Health ◽  
European Convention ◽  
European Court ◽  
Administration Of Justice ◽  
The Right ◽  
The Way

On 11 March 2020 the World Health Organization announced the Covid-19 (coronavirus) to be a pandemic. To combat the pandemic, many countries had to adopt emergency measures and some of these measures have affected the judicial system, especially the functioning of courts. The pandemic has been characterised as far as the judiciary is concerned by complete or partial closure of court buildings for the parties and for the public. It is clear that the functioning of national judicial systems has been severely disrupted. This limited functioning of courts impacted the individuals’ right to a fair trial guaranteed, in particular, under Article 6 of the European Convention on Human Rights. The aim of this article is to examine the manner of the administration of justice during the Covid pandemic and its impact on the due process guarantees. Focus is put on the extent to which different Covid measures, in particular remote access to justice and online hearings have impacted the guarantees of the right to a fair trial and the due process guarantees in general, notably in detention cases. In this connection, the article provides a comparative overview of the functioning of the European legal systems during the pandemic. It also looks into the way in which the two European courts – the European Court of Human Rights and the Court of Justice of the European Union functioned, as well as the way in which the Croatian courts, including the Constitutional Court, organised their work during the pandemic. The article then provides an insight into the issue of online/remote hearings in the case-law of the European Court of Human Rights and in the Croatian Constitutional Court’s case-law. On the basis of this assessment, the article identifies the differences in the use of remote/online hearings between and within jurisdictions. In conclusion, the article points to some critical considerations that should be taken into account when devising the manner in which any Covid pandemic experience with the administration of justice (notably with regard to remote/online hearings) can be taken forward.

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.

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.

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.

THE BOUNDARIES PROBLEM OF THE 1950 EUROPEAN CONVENTION DYNAMIC INTERPRETATION ON HUMAN RIGHTS ON THE EXAMPLE OF ENSURING THE SOCIAL RIGHTS OF CONVICTS

2021 ◽  
Vol 7 (1) ◽  
pp. 112-125
Author(s):  
Andrew Yu. KLYUCHNIKOV
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Current Approach ◽  
European Convention ◽  
Social Rights ◽  
Dynamic Interpretation ◽  
European Court ◽  
The Social ◽  
The Right ◽  
The Impact

The 1950 Convention for the Protection of Human Rights and Fundamental Freedoms is an instrument for the dynamic development of the human rights system in the member states of the European Council. Such an active formation of the latter is due to the activities of the European Court of Human Rights. However, the case-law of the court is not always accepted in national jurisdictions, especially when it comes to the most sensitive areas of life in modern societies. As the goal of the research, the author sets out the identification of the current approach of this international court to the problem of social rights of convicts, especially in the context of ensuring their social rights. The material for the research was the case-law of the ECHR on the social rights of citizens - with special attention to the rights of persons in places of isolation from society, the legal positions of domestic researchers on the problem posed. The author uses traditional research methods - general scientific and special, with an emphasis on historical, social and legal methods. The paper describes the stages of the international soft law sources formation on penitentiary rules and the impact on this of the ECHR practice in the context of the discrimination standarts prohibition regarding the right of ownership and violation of the forced (compulsory) labor prohibition. A common European standard “the right of a convicted person to retire” has not yet been developed, which has been confirmed in the practice of the ECHR. This decision is due to the need to maintain the effectiveness of the entire convention system, the policy of compromises with states. Through the dynamic interpretation of the ECHR, this right is recognized as an element of the convention rights protection, the convict should be granted an increasing amount of social rights.

scholarly journals Predictive analytics in crime prevention and the European Convention on Human Rights: tackling risks in privacy and fair trial frameworks

2021 ◽  
pp. 225-250
Author(s):  
Donatas Murauskas
Keyword(s):  
Human Rights ◽  
Crime Prevention ◽  
Predictive Analytics ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
Conceptual Issue ◽  
The Right To Privacy ◽  
European Court ◽  
The Right

In this paper, I discuss whether the European Convention on Human Rights provides safeguards to individuals affected by predictive analytics in crime prevention. I start with depicting a conceptual issue that worries legal scholars – the trend of law-enforcement authorities to increase their attention to crime prevention rather than traditional criminal investigations. Then, I dive into the right to privacy case-law of the European Court of Human Rights looking for the Court’s references to the threats of data processing. Lastly, I select concrete cases of the European Court of Human Rights on the right to a fair trial to show that the human rights safeguards are not yet developed to frame predictive analytics in crime prevention.

scholarly journals The Impact of ECHR and the Case-Law of the ECtHR on the Development of the Right to Legal Assistance in International Criminal Courts (ICTY, ICTR, ICC)

2019 ◽  
Vol 9 (3) ◽  
pp. 188-204
Author(s):  
Mykhailo Buromenskyi ◽  
Vitalii Gutnyk
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
Case Law ◽  
European Convention ◽  
Legal Assistance ◽  
Criminal Courts ◽  
Human Rights Protection ◽  
European Court ◽  
The Right ◽  
The Impact

Abstract The European Convention on Human Rights and the case-law of the European Court of Human Rights have a significant impact not only on national legal order but also on international criminal courts. The article is dedicated to analyzing that impact in the context of the right to legal assistance. We ascertain the purpose of the establishment of international criminal courts, the specificity of the right to legal assistance in the European system of human rights protection, the impact of the European Convention on Human Rights on the drafting of statutes of the international criminal courts and influence of the European Convention on Human Rights and case-law of the European Court of Human Rights on the interpretation of the right to legal assistance in the international criminal courts. Also the primacy of the right to legal assistance is proved, which is provided in the ECHR to the statutes of international criminal courts. At the same time, the international criminal courts, taking into account the purpose of their establishment and jurisdiction, give additional guarantees of the right to legal assistance.

scholarly journals The Right to a Fair Trial in Automated Civil Proceedings

2019 ◽  
Vol 13 (1) ◽  
pp. 27-44
Author(s):  
Maria Dymitruk
Keyword(s):  
Artificial Intelligence ◽  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
Reasonable Time ◽  
European Court ◽  
Civil Proceedings ◽  
Judicial Proceedings ◽  
The Right

Challenges associated with the use of artificial intelligence (AI) in law are one of the most hotly debated issues today. This paper draws attention to the question of how to safeguard the right to a fair trial in the light of rapidly changing technologies significantly affecting the judiciary and enabling automation of the civil procedure. The paper does not intend to comprehensively address all aspects related to the right to a fair trial in the context of the automation of civil proceedings but rather seeks to analyse some legal concerns from the perspective of the Article 6 of the European Convention on Human Rights and the case-law of the European Court of Human Rights. Section 1 discusses the issues of using artificial intelligence in the justice and automation of the judicial proceedings. Section 2 is devoted to the judge supporting system based on artificial intelligence and psychological requirements of its practical use. Section 3 presents the right to a fair trial in civil cases established by the Article 6 of the European Convention on Human Rights, while subsequent sections characterize its elements with respect to the possibility to automate civil proceedings: a right to have case heard within a reasonable time in section 4 and a right to a reasoned judgment in section 5.

scholarly journals The hidden meanings in the case law of the European Court for Human Rights

Semiotica ◽  
2016 ◽  
Vol 2016 (209) ◽  
pp. 209-230
Author(s):  
Laura Ervo
Keyword(s):  
Human Rights ◽  
Discourse Analysis ◽  
Great Britain ◽  
Organized Crime ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
European Court ◽  
Grand Chamber ◽  
The Right

AbstractIn my paper, I will study the case law of the European Court of Human Rights by using discourse analysis as a method. My hypothesis is that the court has changed its line concerning the right to a fair trial (in article 6 of the European Convention for Human Rights) over the last twenty years. Earlier, it always defended the rights of the accused and the authorities’ problems, for instance, in fact gathering, were recessive. The same covered the rights of the witnesses even if the court usually confessed that also the witness has their rights, which should be respected. It also stressed that authorities of course have difficulties with proof – for example – the offences that are connected with the organized crime. Still, the rights of defense were always number one and inviolate. During recent years, the line seems to have changed even if the court has not transparently said so. However, it has given some new precedents by the Grand Chamber where the rights of the defense have been limited more than before; for instance, the cases Jalloh v. Germany (11 July 2006), Gäfgen v. Germany (1 June 2010), and Al-Khawaja and Tahery v. Great Britain (15 December 2011). The expressions used in case law show that the way of thinking has changed as well. Still, the changes are sometimes more hidden than transparent where discourse analysis is the only tool for catching the changes and showing differences in the thinking of the court.

Procedural fairness: Between human rights law and social psychology

2021 ◽  
pp. 092405192199274
Author(s):  
Cathérine Van de Graaf
Keyword(s):  
Human Rights ◽  
Procedural Justice ◽  
Well Being ◽  
Fair Trial ◽  
European Convention ◽  
Public Confidence ◽  
Social Psychological ◽  
Justice Research ◽  
The Right ◽  
The Impact

Fair procedures have long been a topic of great interest for human rights lawyers. Yet, few authors have drawn on research from other disciplines to enrich the discussion. Social psychological procedural justice research has demonstrated in various applications that, besides the final outcome, the manner in which one’s case is handled matters to people as well. Such research has shown the impact of procedural justice on individuals’ well-being, their acceptance of unfavourable decisions, perceptions of legitimacy and public confidence. The ECtHR has confirmed the desirability of these effects in its fair trial jurisprudence. Thus far, it remains unclear to what extent the guarantees offered by Article 6(1) of the European Convention on Human Rights (the right to a fair trial) coincide with the findings of empirical procedural justice research. This article aims to rectify this and uncover similarities between the two disciplines.

Sign in / Sign up

Export Citation Format

Share Document