scholarly journals RESTRICTIONS OF THE RIGHT TO LIBERTY

2020 ◽  
Vol 73 (12) ◽  
pp. 2915-2920
Author(s):  
Valentina I. Borisova ◽  
Yurii M. Zhornokui ◽  
Larysa V. Krasytska
Keyword(s):  
Human Rights ◽  
Research Methods ◽  
Mentally Ill ◽  
Case Law ◽  
Legal Regulation ◽  
Best Interests ◽  
Involuntary Admission ◽  
European Court ◽  
Special Scientific ◽  
The Right

The aim: To determine the grounds of involuntary admission of a mentally ill person in the context of the possibility to restrict his or her right to liberty. Materials and methods: The authors have studied and analyzed international legal acts, legislation of certain countries, judgments of the European Court of Human Rights, case law on involuntary admission of a mentally ill person by using philosophical, general and special scientific research methods. Conclusions: The imperfection of the legal regulation of relations concerning the involuntary admission of a mentally ill person leads to illegal restriction of the personal right to liberty. It has been proven that involuntary admission and restriction of the freedom of a mentally ill person can be justified, if we take into account the requirement of “therapeutic necessity” for a mentally ill person, the requirement of protecting the rights of others and guaranteeing their safety, the requirement of ensuring the best interests of a mentally ill person.

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”.

scholarly journals Legal Regulation of Relations in the Field of Education

2019 ◽  
Vol 8 (4) ◽  
pp. 9035-9038
Keyword(s):  
Human Rights ◽  
Migration Policy ◽  
Case Law ◽  
Legal Regulation ◽  
European Convention ◽  
Right To Education ◽  
National Education ◽  
Education Legislation ◽  
European Court ◽  
The Right

The article analyzes the specifics of ensuring the protection of the right to education in case-law decisions of the European Court of Human Rights. The authors have found that there are problems in the current education systems both in Europe and Russia. These problems are solved in accordance with the case law created by the European Court of Human Rights making decisions to ensure the right to education. The authors have noted the main violations committed by governments or governmental bodies in its implementation. The authors have shown the correspondence of the norms of national education legislation of a number of European countries to the provisions of the European Convention on Human Rights. In this regard, the authors have concluded that today, the right to education in European states is not always respected due to migration policy and in the future, relations in this area will deteriorate.

Reconstructing the European Court of Human Rights’ Article 8 Jurisprudence in Deportation Cases: The Family’s Right and the Public Interest

2020 ◽  
Vol 20 (2) ◽  
pp. 333-360
Author(s):  
Jonathan Collinson
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Case Law ◽  
Best Interests ◽  
European Convention ◽  
The Public ◽  
European Court ◽  
Two Factors ◽  
The One ◽  
The Right

Abstract This article rationalises the case law of the European Court of Human Rights under Article 8 of the European Convention on Human Rights in deportation cases involving children. The Court engages in a balancing exercise between the right to family life of the deportee’s family on the one side, and the public interest in deportation on the other. This article expands on existing case law analysis by suggesting that in deportation cases, the Court considers Article 8 as a form of commonly held right, rather than an individual right held by one member of the family. Furthermore, the balance is argued to be constructed as a relationship between two factors on both sides, rather than of a sole factor on either side as being determinative. This article concludes that the best interests of the child (one of the ‘Üner criteria’) is not adequately reflected in the Court’s deportation decision-making practice.

scholarly journals Between facts and norms: Testing compliance with Article 8 ECHR in immigration cases

2019 ◽  
Vol 37 (2) ◽  
pp. 157-177
Author(s):  
Mark Klaassen
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
Best Interests ◽  
Primary Role ◽  
European Court ◽  
The Right ◽  
Compliance Tests

The European Court of Human Rights plays a subsidiary role in the protection of the rights and freedoms set forth in the Convention. To enable national authorities to perform their primary role, it is important that the Court offers sufficient guidance on the interpretation of the Convention. It has already been argued that the case law of the Court on the right to respect for family life in immigration cases, lacks consistency in terms of procedural and substantive protection. The inconsistency in the case law is mostly the case in the admission and regularisation case law. This manifests itself in specific issues including the determination of whether an interference has occurred as well as the court’s determination of the best interests of the child. Consequently, the case law difficult to apply by national authorities which leads to widely diverging practices by the Contracting Parties. The objective of this article is to outline the differences and inconsistencies in the different forms of immigration cases and the corresponding compliance tests of the Court. The article aims to offer a solution that would enable both the Court and the Contracting Parties to differentiate the level of protection that is offered by Article 8 in immigration cases, while providing sufficient guidance to national decision-making authorities and judiciaries so that they can efficiently and effectively exercise the primary role they play in the protection of the right to respect for family life in immigration cases.

Towards a Uniform and Informed Interpretation of the Best Interests of the Child by the Judiciary: Inter-American and European Jurisprudence

2021 ◽  
pp. 1-24
Author(s):  
Susana Sanz-Caballero
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Case Law ◽  
Best Interests ◽  
Rights Of The Child ◽  
European Court ◽  
Critical Form ◽  
The United Nations ◽  
The Right ◽  
Judicial Remedies

This article analyses the interpretations made by two regional human rights courts regarding the best interests of the child. In cases of controversy, it is for the judges to decide how, or whether, the best interests of the child should be applied. Due to the dependence and vulnerability of children, judicial remedies are a critical form of redress when children’s rights are violated. This article analyses case law from two regional courts (the Inter-American Court of Human Rights (ICtHR) and the European Court of Human Rights (ECtHR)). The purpose of this analysis is twofold: first of all to see how the two courts interpret and apply the concept; and secondly, to ascertain whether there are similarities of interpretation or common grounds of understanding between the two courts, with particular regard to General Comment No. 14 (GC 14) of the United Nations Committee on the Rights of the Child on the right of the child to have their best interests taken as a primary consideration.

scholarly journals The principle of the best interests of the child in the expulsion case law of the European Court of Human Rights: Procedural rationality as a remedy for inconsistency

2019 ◽  
Vol 37 (1) ◽  
pp. 50-68 ◽  
Author(s):  
Mathieu Leloup
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
Best Interests ◽  
Critical Examination ◽  
Procedural Rationality ◽  
Procedural Approach ◽  
European Court ◽  
The Subject ◽  
The Right

According to Article 3 CRC, the best interests of the child should be a primary consideration in all actions concerning children. This article examines how the European Court of Human Rights applies this principle in expulsion cases that have an impact on the right to family life. A distinction is made between the cases where the expulsion measure is aimed at one of the parents and the cases where the child itself is the subject of the impugned decision. A critical examination of the available case law proves that the Court’s use of the principle is inconsistent in several areas. It is argued that the Court should adopt a procedural approach towards the principle. This would make the case law more consistent, while simultaneously increasing the children’s protection.

scholarly journals WAIVER OF HUMAN RIGHTS: A RIGHT OR A CHALLENGE?

2020 ◽  
pp. 5-18
Author(s):  
Nelly Arakelyan
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Human Rights Law ◽  
European Court ◽  
The Republic ◽  
Definition Of ◽  
The Right ◽  
Classical Perception

The author discusses the new tendencies of waiving human rights. In the article they are qualified as a new emerging institute of Human Rights Law. The definition of human rights waiver is discussed, as well as the necessity to give a legal regulation to it. The author presents the existing definitions of human rights waiver, but does not share any of them, particularly most of them define human rights waiver as not utilization of human rights, but the author calls this definition as a passive application of human rights, whilst waiver of human rights has its own content which is discussed in the article in details. Human rights waiver is discussed in the light of the co-relation of the right to autonomy and the principle of paternalism. The author presents some case law on waiver of human rights, which is very rare. Specifically, the author presents the case law of the Constitutional Court of the Republic of Armenia and the case law of the European Court of Human Rights. The legal positions of the mentioned bodies can serve as good criteria in dealing with human rights waiver. Particularly, the Constitutional Court of the Republic of Armenia held a decision dedicated to this issue and qualified waiver of human rights as an exception from the classical perception of human rights ideology. The author agrees with idea reflected in decision of the Constitutional Court concerning the correlation of human rights waiver and right to autonomy, according to which right to autonomy cannot be absolute and that absolute waiver of human rights can, in its turn, violate the human rights. In this context the author highlights the necessity of defining the limits of human rights waiver offering two important directions for discussion of this question; the scope of the rights which can and cannot be waived, the framework and criteria of a waiver of human rights.

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.

The Best Interests of the Child

2020 ◽  
pp. 203-221
Author(s):  
Wouter Vandenhole ◽  
Gamze Erdem Türkelli
Keyword(s):  
Human Rights ◽  
Family Law ◽  
Children's Rights ◽  
Case Law ◽  
Children’S Rights ◽  
Best Interests ◽  
Rights Of The Child ◽  
European Court ◽  
Elusive Concept

The best interests of the child principle is considered a pillar of children’s rights law and, according to the UN Convention on the Rights of the Child (CRC), is to be a primary consideration in all actions concerning children. Yet best interests is an elusive concept and principle that has no single authoritative definition or description. Internationally and domestically relevant in such diverse areas as family law, adoption, migration, and socioeconomic policymaking, the best interests principle requires flexibility and is best served by a case-by-case approach, as has been recognized by the UN Committee on the Rights of the Child and the European Court of Human Rights. This chapter analyzes relevant international case law and suggests the use of a number of safeguards to prevent such requisite flexibility from presenting a danger of paternalism, bias, or misuse.

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