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.

Between Informal Dialogue and Official Criticism

2019 ◽  
Vol 21 (5) ◽  
pp. 409-420
Author(s):  
Anna Podolska
Keyword(s):  
European Union ◽  
Human Rights ◽  
Mutual Recognition ◽  
Case Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings

Abstract There are various forms of jurisdictional dialogue. In addition to drawing from the case law of another court or seeking direct assistance of such another court in passing the judgment, we can notice in practice situations when by issuing a verdict the courts are communicating with each other. The rulings of the Bundesverfassungsgericht, the Court of Justice of the European Union, and the European Court of Human Rights regarding the free movement of judgments in the European Union and protection of fundamental rights are the example of such activities. Each of these bodies was interpreting separately the extent to which the mechanisms of recognising and executing the judgments may interfere with the level of protection of fundamental rights. A common conclusion concerns assigning the priority to protection of fundamental rights, while individual bodies were determining differently the standards of such protection. The analysed judgments can be construed as a communication between these bodies. Although no direct discussion takes place between these courts, this is still a form of interaction which affects the development of the case law and understanding of the boundaries of mutual recognition of judgments and protection of human rights within judicial proceedings.

scholarly journals Tajemnica adwokacka jako element realizacji prawa do sprawiedliwego procesu sądowego oraz prawa do poszanowania korespondencji

2021 ◽  
Vol 33 (2) ◽  
pp. 7-21
Author(s):  
Natalia Banach ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Private Life ◽  
Fundamental Rights ◽  
Moral Norms ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Republic ◽  
The Right

The issue of exemption from the attorney-client privilege and the nature of this attorney-client privilege is widely discussed both in the literature on the subject and in the doctrine. In order to analyze this subject, it was necessary to interpret the provisions of the Law on the Bar Ac (26 May 1982), the provisions of the Code of Bar Ethics (23 December 2011) the Constitution of the Republic of Poland (2 April 1997), both guarantees enshrined in the Convention for the Protection of Human Rights and Fundamental Rights of liberty from 1950. The interpretation was made in conjunction with Polish case law common courts and case law of the European Court of Human Rights. This also presents the view of the polish Ombudsman’s Office. Given that the professional secrecy of lawyers is an inseparable element of justice, it would be wrong to omit the generally accepted moral norms of society in relation to the procedural role of a lawyer. The thesis put forward that the professional secrecy of lawyers is part of the implementation of the right to a fair trial and the right to respect for private life. The purpose of the work was to emphasize the essence of lawyers’ secrecy as an inseparable element of defense of the parties to the proceedings and to indicate interpretation differences between Polish courts and the case law of the European Court of Human Rights.

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”.

A rationale for the legitimacy of the world legal order: Kant’s idea of a cosmopolitan will

2020 ◽  
Vol 9 (3) ◽  
pp. 523-530
Author(s):  
CLAUDIO CORRADETTI
Keyword(s):  
Human Rights ◽  
Legal Order ◽  
European Court ◽  
The World ◽  
Global Constitutionalism

AbstractIn this contribution I provide an interpretation of Stone Sweet’s and Ryan’s cosmopolitan legal order in conjunction with a certain reconstruction of the Kantian cosmopolitan rationale. Accordingly, I draw attention to the connection between the notion of a general (cosmopolitan) will in Kant’s reinterpretation of Rousseau and the role of the European Court of Human Rights (ECtHR) as an ‘interpreter’ of such will. I conclude by suggesting that the opportunity of extending the CLO also accounts for a variety of other poliarchical regimes that, taken as a whole, illustrate the landscapes of contemporary global constitutionalism.

The Pan-European General Principles of Good Administration in the Italian Legal System

2020 ◽  
pp. 182-209
Author(s):  
Marco Macchia ◽  
Claudia Figliolia
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Case Law ◽  
Administrative Law ◽  
European Court ◽  
System P ◽  
Low Degree ◽  
Court Proceedings ◽  
The Impact ◽  
Constitutional Jurisprudence

This chapter discusses the impact of the pan-European principles of good administration on Italian administrative law. The chapter presents the main finding that the Italian legal system is generally in line with these principles. The case law of the European Court of Human Rights has played a particularly strong role in national administrative law (especially in the context of administrative sanctioning and lengthy court proceedings). At the same time, some limitations to full reception of the said principles remain, the most notable of them being the resistance of constitutional jurisprudence to give ‘generalized’ execution to the pan-European principles and the low degree of recognition of the importance of the Council of Europe’s recommendations and conventions (other than the ECHR) for the development of these principles in national administrative law. The chapter concludes by stressing the (sometimes) contradictory nature of Italy’s acknowledgement of the pan-European scope of these principles.

The Reception Process in Austria and Switzerland

2008 ◽  
Author(s):  
Daniela Thurnherr
Keyword(s):  
Human Rights ◽  
Early Stage ◽  
Case Law ◽  
Legal Order ◽  
The Other ◽  
Council Of Europe ◽  
Starting Position ◽  
European Court ◽  
The Status ◽  
The Common

This chapter discusses the reception of the ECHR in Austria and Switzerland. Topics covered include the accession and ratification of the ECHR in both countries, the status of the ECHR in national law, an overview of the activity of the European Court of Human Rights, and the ECtHR's case law and its effects on the national legal order. Although both countries joined the ECHR at a relatively early stage, this starting position led to different outcomes. The main reason is because the common denominators of neutrality and federalism in these two countries are actually rather small: as Austria follows a very different concept of neutrality, it did not face any (political) difficulties before and during the ratification process. Switzerland, on the other hand, was very reluctant to join the Council of Europe and careful to avoid any concessions with regard to neutrality.

Psychiatric commitment: over 50 years of case law from the European Court of Human Rights

2006 ◽  
Vol 21 (7) ◽  
pp. 427-435 ◽  
Author(s):  
G. Niveau ◽  
J. Materi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Time Frame ◽  
Governmental Organizations ◽  
Non Governmental Organizations ◽  
European Court ◽  
Right To Information ◽  
Definition Of ◽  
Respective Number

AbstractPurposeTo extensively review the European Court of Human Rights (ECHR) case law concerning psychiatric commitment, and to estimate the role of this supranational jurisprudence in the practice of contemporary psychiatry.MethodUsing keywords to search the ECHR computerized database “HUDOC”, we reviewed all cases concerning psychiatric commitment registered between September 1953 and December 31, 2004. Four groups were identified: applications declared inadmissible; applications accepted but not judged by the Court; pending cases; and cases judged by the Court.ResultsOf the almost 118,000 decisions taken by the ECHR in this time frame, we found 108 situations concerning psychiatric commitment. Forty-one of these applications were considered by the Court to be inadmissible. Twenty-four other cases were considered admissible but not judged by the ECHR. Three admissible cases were still pending at the end of 2004. The ECHR judged 40 cases, and found in 35 of them that one or several rights as guaranteed by the Convention had been violated.DiscussionThe ECHR protects the human rights of persons subjected to involuntary psychiatric commitment by creating supranational law in the following areas: definition of “unsoundness of mind”; conditions of lawfulness of detention; right to a review of detention by a Court; right to information; right to respect for private and family life; and conditions of confinement, which address inhuman and degrading treatment. The respective number of applications submitted to the ECHR did not depend on when the Convention had entered into force in that country.ConclusionThe possibility of an individual to access the ECHR depends on the degree of democracy in his country and on the access to legal assistance through non-governmental organizations or individual intervening parties.

Case-law of the European Court of Human Rights in juvenile cases. Selected cases

2019 ◽  
Vol 584 (9) ◽  
pp. 18-32
Author(s):  
Elżbieta Czyż
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Young Person ◽  
Fair Trial ◽  
European Countries ◽  
European Court ◽  
Court Proceedings ◽  
The Right ◽  
Procedural Rights ◽  
Entire Procedure

The right to a fair trial, rules on deprivation of liberty are important standards in the entire procedure of dealing with juveniles, from detention to the end of court proceedings. The judgments of the European Court of Human Rights cited in the article illustrate what are the problems with complying with this standard in practice in several European countries, including Poland. It seems that one of the reasons may be declarative, apparent treatment of the rights of child/juvenile, especially when it concerns procedural rights. Teaching a young person respect for the law and responsibility for his behaviour requires subjective treatment so that he can feel, on his own example, the operation of a system based on clear, predictable, understandable rules.

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