The practice of the Supreme Court and the decisions of the European Court concluding violations of artic - le 3 of the Convention

European Standards ◽

Law enforcement practice of the Supreme Court in cases involving torture in the light of the standards of the European Court ofHuman Rights. The article is devoted to the study of individual legal positions of the Supreme Court, their coordination with the practiceof the European Court of Human Rights. The author emphasizes that the decisions of the European Court should serve as precedents,which will make it impossible to produce diametrically opposite decisions on similar categories of cases. Analysis of the problem ofcriminal responsibility for torture allows us to form conclusions and suggestions that are important for the development of the theoryof criminal law and the improvement of law enforcement practice.The article deals with the issues related to the peculiarities of the interpretation and application of Article 3 of the European Conventionon Human Rights of the European Court of Human Rights. In particular, the scope of Article 3 has been analyzed; it has been de -fined, what is necessary to understand under concepts of torture, inhuman or degrading treatment or punishment. Substantive and proceduralaspects of violations of the prohibition of torture have been revealed, as well as positive and negative obligations of a state to providethe effective protection of the right. The standards of the appropriate assessment of ill-treatment and the main aspects of judicial qualificationof a particular form of mistreatment as torture have been analyzed. The procedural guarantees, which must be provided for each personat the stage of pre-trial investigation, non-observance of which leads to a breach of Article 3 of the Convention, have been determined.Creation of the effective system of protection of human rights and its efficiency is analysed in relation to the crime of “torture”in the context of European Convention on human rights, which must be in future stored and taken for basis for a further improvementand systematization of the single European standards in area of human rights.

Proportionality of Interference with the Right to Peaceful Enjoyment of Property During the Seizure of Property in Criminal Proceedings in Ukraine

Access to Justice in Eastern Europe ◽

10.33327/ajee-18-3.4-a000038 ◽

2020 ◽

pp. 246-264

Keyword(s):

Human Rights ◽

Law Enforcement ◽

Case Law ◽

Criminal Proceedings ◽

Human Right ◽

European Court ◽

European Standards ◽

The Right ◽

International Instruments

This article considers relevant science and law enforcement practice issues of state intervention’s legitimacy in the right to peaceful property enjoyment in criminal proceedings during property seizure. These issues are considered everywhere through international instruments’ prism, particularly the Convention for the Protection of Human Rights (ECHR) and Fundamental Freedoms, Article 1 of Protocol No. 1 to the Convention and the ECtHR case-law. Based on the ECtHR case law, the authors analyze the conditions under which the state may interfere in exercising a protected right, often called criteria for intervention. Based on the fact restrictions are permissible if they are prescribed by law, necessary in a democratic society and pursue a legitimate goal, the authors consider these conditions through the lens of national law enforcement practices of Ukrainian criminal proceedings. The authors emphasize the relevance of these criteria of the legality of individual rights restriction in criminal proceedings since when applying for property seizure, the Ukrainian legislator requires investigating judges to consider reasonableness and restriction proportionality of property rights, and apply the least onerous seizure method, not suspend or excessively restrict a person’s lawful business activities, or other consequences significantly affecting others’ interests. Due to the amendment of the Ukrainian criminal procedure legislation, the practice is slowly approaching the European Court of Human Rights practice’s European standards. However, proper systematic, logical and consistent court decisions limiting the human right to peaceful property possession remain critical. Based on the study, the authors offer a model of logical reasoning, following which the investigating judges can correctly formulate the motivational part of the decision to satisfy or deny the request for property seizure. Particular attention is paid to the reasonableness, suitability, necessity, and proportionality of the means of restricting the right to peaceful enjoyment of the property and describes each of them.

PRAVO NA POŠTOVANjE DOMA U PRAKSI USTAVNOG SUDA REPUBLIKE SRBIJE (UTICAJ PRAKSE EVROPSKOG SUDA ZA LjUDSKA PRAVA)

USKLAĐIVANjE pravnog sistema Srbije sa standardima Evropske unije: Knj.9 ◽

10.46793/upssix.511c ◽

2021 ◽

pp. 511-531

Author(s):

Jelena Čanović ◽

Keyword(s):

Human Rights ◽

European Convention ◽

Constitutional Court ◽

Controversial Issues ◽

European Court ◽

The Republic ◽

European Standards ◽

A special regime for the protection of the right to respect for home is provided with the Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. With ratification of this Convention, the Republic of Serbia has undertaken the obligation to respect and effectively implement the rights guaranteed by the European Convention as a "minimum European standard". The role of the European Court of Human Rights in defining and determining the scope of basic human rights, so the right to respect for home too, is reflected in its rich practice, which greatly affects national legal systems. Thus, the European Court in its practice has defined the principles and criteria for providing protection of the right to respect for home. To monitor the used instruments for protection of the right to respect for home in the domestic legal order and their harmonization with European standards of protection, it is necessary to analyze the practice of the Constitutional Court of the Republic of Serbia, through which is reflected practice of regular courts as well. Considering that in the practice of the highest courts in our country, as well as in the practice of the Constitutional Court, the right to respect for home has been recognized recently, the lack of numerous theoretical discussions and practical analyzes of prominent controversial issues indicates the relevance of this topic about we write about.

The European Court of Human Rights as Part of Criminal Procedural Legislation of Ukraine

Bulletin of Kharkiv National University of Internal Affairs ◽

10.32631/v.2020.3.23 ◽

2020 ◽

Vol 90 (3) ◽

pp. 235-244

Author(s):

О. С. Розумовський ◽

О. О. Кочура

Keyword(s):

Human Rights ◽

Law Enforcement ◽

Supreme Court ◽

Practical Implementation ◽

Criminal Proceedings ◽

Law Enforcement Agencies ◽

European Court ◽

The Supreme Court ◽

Grand Chamber ◽

The author has studied the issue of the origin and formation of the European Court of Human Rights after the Second World War, steps in the establishment and development of this Court, as well as the actions of the Member States to consolidate the development of the European Court of Human Rights at specialized conferences with the support of the Committee of Ministers. The list of regulatory and legislative acts adopted by the Verkhovna Rada of Ukraine for the establishment of the rule of law in regard to the understanding of human rights in the activities of Ukrainian courts has been researched. Since the Convention for the Protection of Human Rights and Fundamental Freedoms has become part of national legislation after its ratification by the Verkhovna Rada of Ukraine, more detailed study should be conducted regarding the urgent task of fully understanding the content of this international treaty and the main mechanisms for implementing its norms. The author has analyzed the implementation of the case law of the European Court of Human Rights on the example of its specific decisions into criminal procedural legislation of Ukraine by applying the decisions of the European Court of Human Rights by the Grand Chamber of the Supreme Court in its activities and problematic aspects of their practical implementation. Particular attention has been paid to the study of problematic aspects of the use of these decisions in practice by highlighting the rulings of the Grand Chamber of the Supreme Court issued in 2019. The author has analyzed the decisions of the European Court of Human Rights in regard to the conducted secret (search) actions by law enforcement agencies with further disclosure ob obtained evidence to the defense party; it has been also pointed out that the right to disclose evidence contained in criminal proceedings is not absolute to the defense and may be limited only in cases when there are the interests of national security, information protection or witness protection concerning the methods and forms of law enforcement agencies’ activity. The author has made propositions to resolve certain situations related to the implementation of the decisions of the European Court of Human Rights in Ukraine.

Izvršenje presuda Europskog suda za ljudska prava u građanskopravnim međunarodnim otmicama djece u Republici Hrvatskoj – nova otvorena pitanja

Zbornik Pravnog fakulteta u Zagrebu ◽

10.3935/zpfz.71.34.02 ◽

2021 ◽

Vol 71 (3-4) ◽

pp. 347-375

Author(s):

Mirela Župan ◽

◽

Paula Poretti ◽

Martina Drventić ◽

◽

...

Keyword(s):

Human Rights ◽

Case Law ◽

European Convention ◽

Private International Law ◽

Child Abduction ◽

European Court ◽

International Child ◽

European Standards ◽

The European Court of Human Rights (ECtHR) established a violation of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in several cases of international parental child abduction before Croatian courts. The length and the manner in which the proceedings concerning the return of the child were conducted constituted grounds for establishment of a violation of the right to a fair trial and the right to respect for private and family life. The execution of these judgments is still pending before the Committee of Ministers, despite the fact that the measures ordered resulted with a modified Croatian legal regime introduced through the Act on the Application of the Convention on the Civil Aspects of International Child Abduction. The Act includes a number of procedural improvements which align the practice of Croatian courts with international and European standards. However, the judgment of the ECtHR in Adžić v Croatia (no. 2) reveals that there is still no unambiguous answer to the question whether extraordinary appellate proceedings should be permitted in child abduction cases. Hence, the authors critically analyse the possibility of initiating an extraordinary appellate proceedings in these cases from a civil procedure and private international law aspect. The conclusion takes into account the specific circumstances of the case at hand as well as the case law of the ECtHR in relevant cases concerning other contracting states.

14. Land Law and Human Rights

Land Law ◽

10.1093/he/9780198840329.003.0014 ◽

2020 ◽

pp. 593-629

Author(s):

Chris Bevan

Keyword(s):

Human Rights ◽

Supreme Court ◽

European Convention ◽

Land Law ◽

European Court ◽

The Supreme Court ◽

Rights Discourse ◽

Human Rights Discourse ◽

The Relationship

This chapter examines the relationship between land law and human rights. From a distinctly land law perspective, the human rights discourse has given rise to much debate, which continues to fuel much academic commentary including recent examination of the availability of horizontal effect in McDonald v McDonald in the Supreme Court and in the European Court of Human Rights. The chapter focuses chiefly on the two most pertinent provisions of the European Convention on Human Rights (ECHR) for land law; namely Art. 1 of the First Protocol and Art. 8 and reflects on the, at times, difficult relationship between land law and human rights.

Case Comment: Re D (A Child) [2019] UKSC 42

Medical Law Review ◽

10.1093/medlaw/fwaa007 ◽

2020 ◽

Vol 28 (3) ◽

pp. 595-604

Author(s):

Alex Ruck Keene ◽

Xinyu Xu

Keyword(s):

Human Rights ◽

Supreme Court ◽

Common Law ◽

European Convention ◽

The Supreme Court ◽

The Right ◽

Article 5

Abstract How (if at all) can the right to liberty of a child under Article 5 European Convention on Human Rights (‘ECHR’) be balanced against the rights of parents, enshrined both at common law and under Article 8 ECHR? Is there a limit to the extent to which parents can themselves, or via others, seek to impose restrictions upon their disabled child’s liberty so as to secure their child’s interests? This case considers the answers to these questions given by and the implications of the decision of the Supreme Court in September 2019 in Re D (A Child) [2019] UKSC 42.

Does Self-isolation Violate the Right to Liberty? An Analysis of the European Court of Human Rights’ Practice in Light of the Ukrainian Experience

European Journal of Health Law ◽

10.1163/15718093-bja10024 ◽

2020 ◽

Vol 27 (4) ◽

pp. 368-385

Author(s):

Yana Litins’ka ◽

Oleksandra Karpenko

Keyword(s):

Human Rights ◽

Stress Test ◽

European Convention ◽

Legal Systems ◽

Human Rights Practice ◽

Rapid Action ◽

European Court ◽

Fundamental Freedoms ◽

Abstract COVID-19 became a stress-test for many legal systems because it required that a balance be found between rapid action to prevent the spread of the disease, and continued respect for human rights. Many states in Europe, including Ukraine, chose to enforce an obligation to self-isolate. In this article we review what the obligation to self-isolate entails in the case of Ukraine. We also analyse whether such an obligation should be viewed as a deprivation or a mere restriction of liberty, and if it is permissible under the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Hirsi Jamaa v. Italy. Application No. 27765/09

The American Journal of International Law ◽

10.5305/amerjintelaw.107.2.0417 ◽

2013 ◽

Vol 107 (2) ◽

pp. 417-423 ◽

Cited By ~ 5

Author(s):

Irini Papanicolopulu

Keyword(s):

Human Rights ◽

European Convention ◽

International Convention ◽

European Court ◽

The Status ◽

Grand Chamber ◽

Effective Remedy ◽

Maritime Search And Rescue ◽

In a unanimous judgment in the case Hirsi Jamaa v. Italy, the Grand Chamber of the European Court of Human Rights (Court) held that Italy’s “push back” operations interdicting intending migrants and refugees at sea and returning them to Libya amounted to a violation of the prohibition of torture and other inhuman or degrading treatment under Article 3 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR or Convention), the prohibition of collective expulsions under Article 4 of Protocol 4 to the Convention, and the right to an effective remedy under Article 13 of the Convention. Hirsi Jamaa is the Court’s first judgment on the interception of migrants at sea and it addresses issues concerning the 1982 United Nations Convention on the Law of the Sea and the 1979 International Convention on Maritime Search and Rescue, as well as the 1951 Convention Relating to the Status of Refugees.

Some decisions of the European Court of Human Rights and the Court of the European Union con cerning the right of asylum

Comparative Research In Law and Politics ◽

10.12737/5251 ◽

2014 ◽

Vol 2 (1) ◽

pp. 68-74

Author(s):

Габриэлла Белова ◽

Gabriela Belova ◽

Мария Хаджипетрова-Лачова ◽

Maria Hadzhipetrova-Lachova

Keyword(s):

European Union ◽

Human Rights ◽

European Convention ◽

The European Union ◽

Protective Mechanisms ◽

Eu Member States ◽

European Court ◽

The Right ◽

The Eu

The authors analyze certain cases considered in recent years by the European Court of Human Rights and the Court of European Union in Luxembourg and associated with providing of asylum to the third country nationals. In individual EU member states there are huge differences in the procedures and protective mechanisms for asylum seekers in their access to work, as well as in the use of mechanism of forced detention. Due to accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms, the EU should comply the standards set by the Council of Europe. The authors analyze the new approach of the Strasbourg Court in decision MSS v. Belgium and Greece unlike other "Dublin" cases. They also consider certain new judgements of the Court of European Union in Luxembourg, some of which were accepted in order of urgent prejudicial production.

The European Court of Human Rights: Sabeh El Leil v. France

International Legal Materials ◽

10.5305/intelegamate.51.1.0001 ◽

2012 ◽

Vol 51 (1) ◽

pp. 1-16

Author(s):

Gilles Cuniberti

Keyword(s):

Human Rights ◽

Fair Trial ◽

European Convention ◽

Sovereign Immunity ◽

European Court ◽

Fundamental Freedoms ◽

The Right ◽

Wrongful Dismissal

In Sabeh el Leil v. France, the European Court of Human Rights (‘‘ECtHR’’ or ‘‘the Court’’) ruled for the second time that a contracting state had violated the right to a fair trial afforded by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘‘Convention’’) by denying access to its courts to an embassy employee suing for wrongful dismissal on the grounds that the employer enjoyed sovereign immunity. The ECtHR had first ruled so a year earlier in Cudak v. Lithuania, where the plaintiff was also an embassy employee.