Wyrok ETPC jako precedens wiążący quasi de iure a efektywność porządku Europejskiej Konwencji Praw Człowieka (perspektywa teoretycznoprawna)

2017 ◽  
pp. 7-29
Author(s):  
Bartosz Liżewski
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
European Convention ◽  
International Court Of Justice ◽  
Stare Decisis ◽  
European Court ◽  
International Court ◽  
Protection Of Human Rights ◽  
The One

In the system of the European Convention on Human Rights (ECHR or the Convention), the basic formula for creating standards for the protection of human rights is to define their understanding of and possible modifications or changes as a result of a law-making interpretation of the provisions of the Convention. The substantive rules of the Convention since its inception, not only have not changed (they were amended or derogated), but in addition are very general. This causes, that the way their understanding sets the European Court of Human Rights (ECHR or tribunal) forming in a legislative standards for the protection of human rights. That raises the interesting question of theoretical, since in public international law on the one hand the judgment of an international court is recognized as an auxiliary source of international law (art. 38 sec. 1 point d Statute of the International Court of Justice), while not applicable rule of stare decisis, meaning legally bound judgment precedent of other courts in similar cases. If, however, a violation of well-established case law of the ECHR by the national authorities is the reason for the judgment of the committee of three judges without a hearing (art. 28 paragraph. 1 point b ECHR). Judgments of the Court (the monopoly of interpretation of the ECHR) must be respected and enforced in order of national law (Art. 46 paragraph. 1 and 2 of the ECHR). This raises the natural question of the scope of their precedensowości for the tribunal and law enforcement organs in the national legal system. It is with this problem both theoretical and practical. The obvious fact is that the decision of the ECHR does not create a precedent in the sense of how suitable term in common law. However, its decisions affect application of the law on domestic, not only in reality, but partly also legal, so that it can be concluded that the judgment has the power of the normative and, to some extent binding. But what is the scope of the precedent character of this sentence? The answer to this question is the subject of considerations to be taken in the paper.

scholarly journals DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS AS THE SOURCE OF THE CONSTITUTIONAL LAW OF UKRAINE

2019 ◽  
pp. 19-23
Author(s):  
P. M. Synytsyn
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
Complex Structure ◽  
Case Law ◽  
European Convention ◽  
Constitutional Court ◽  
Public Authorities ◽  
European Court ◽  
Protection Of Human Rights

The article has been devoted to the analysis of the nature of the decisions of the European Court of Human Rights as a source of constitutional law of Ukraine. The nature of the judgments of the European Court of Human Rights has been characterized depending on the following factors: state legal system, constitutional approach to the relation between national and international law, the level of bindingness of decisions of the European Court of Human Rights for public authorities. The author has concluded on the duality of nature the decisions of the European Court of Human Rights, namely that, the author considers that the decisions of the European Court of Human Rights have a complicated, complex structure, combining the properties of both a right-interpreting act and a judicial precedent. According to the author, the decisions of the European Court of Human Rights are intended not only to resolve the cases under trial, but also to specify and interpret the rules of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It has been established that the current Ukrainian legislation, establishing the primacy of the rule of law before the law, provides for the obligation of the judicial authorities to apply the decisions of the European Court of Human Rights as a source of law and at the same time the duty of the state to enforce the decisions of the European Court of Human Rights in cases where Ukraine is the defendant. In addition, as the case law of the European Court of Human Rights shows, the judiciary itself emphasizes in its decisions the interpretative nature and the binding nature of all its decisions to be taken into account by all States parties. The Constitutional Court of Ukraine constantly uses the decisions of the European Court of Human Rights to form its own legal positions, after which they actually become a substantive element of the motivating part of the decision of the Constitutional Court of Ukraine. It has been concluded that regardless of whether or not the decision of the European Court of Human Rights has been ruled on Ukraine, it is a source of constitutional law in Ukraine.

The European Convention on Human Rights and International Law

2007 ◽  
Vol 56 (2) ◽  
pp. 217-231 ◽  
Author(s):  
Luzius Wildhaber
Keyword(s):  
Human Rights ◽  
International Law ◽  
Comparative Law ◽  
Case Law ◽  
European Convention ◽  
Mutual Relationship ◽  
Public International Law ◽  
European Court ◽  
Special Character ◽  
British Institute

AbstractThis article is an expanded and footnoted version of the lectur given at the British Institute of International and Comparative Law on Tuesday 21 March 2006, entitled ‘International Law in the European Court of Human Rights’.The article begins with some comparative comments on the application of the European Convention on Human Rights in monistic and dualistic systems It then discusses in detail the European Court's case law which confirms that the Convention, despite its special character as a human rights treaty, is indeed part of public international law. It concludes that the Convention and international law find themselves in a kind of interactive mutual relationship. checking and buildine on each other.

Fragmentation of International Law Revisited: Insights, Good Practices, and Lessons to be Learned from the Case Law of the European Court of Human Rights

2015 ◽  
Vol 28 (4) ◽  
pp. 863-885 ◽  
Author(s):  
ADAMANTIA RACHOVITSA
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
European Convention ◽  
Vienna Convention ◽  
International Courts ◽  
Good Practices ◽  
European Court ◽  
Interpretation Process ◽  
Fragmentation Of International Law

AbstractThis article discusses the contribution of the European Court of Human Rights to mitigating difficulties arising from the fragmentation of international law. It argues that the Court's case law provides insights and good practices to be followed. First, the article furnishes evidence that the Court has developed an autonomous and distinct interpretative principle to construe the European Convention on Human Rights by taking other norms of international law into account. Second, it offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. It analyses the Court's approach to subtle contextual differences between similar or identical international norms and its position towards the requirements of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It concludes that international courts are developing innovative interpretative practices, which may not be strictly based on the letter of the VCLT.

Cestaro v. Italy: The European Court of Human Rights on the Duty to Criminalise Torture and Italy’s Structural Problem

2017 ◽  
Vol 17 (3) ◽  
pp. 567-585
Author(s):  
Domenico Carolei
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Code ◽  
European Convention ◽  
Structural Problem ◽  
European Court ◽  
The One ◽  
Definition Of ◽  
Normative Content ◽  
Italian Legislation

In April 2015, the European Court of Human Rights (ECtHR) ruled that Italian legislation is inadequate to criminalise acts of torture (Cestaro v. Italy). Following the ECtHR’s decision, the Italian Parliament approved the bill A.C. 2168 which aimed to introduce the crime of torture (Article 613-bis) in the Italian Criminal Code. The bill does not seem to comply with the definition of torture provided by international law, and also neglects the legislative guidelines outlined by the ECtHR in Cestaro v. Italy. The purpose of this article is twofold. On the one hand, it will assess the ECtHR’s decision focusing on Italy’s structural problem and its duty to enact and enforce efficient criminal provisions under Article 3 of the European Convention. On the other hand, it will analyse the normative content of Article 613-bis in order to highlight its weaknesses and propose, on each of them, suggestions for amendment.

The European Court of Human Rights and the Protection of Arctic Indigenous Peoples Rights

2018 ◽  
Vol 9 (1) ◽  
pp. 24-52
Author(s):  
Mikael Lundmark
Keyword(s):  
Human Rights ◽  
Indigenous Peoples ◽  
Active Role ◽  
Case Law ◽  
Historical Background ◽  
The Arctic ◽  
European Convention ◽  
European Court ◽  
Protection Of Human Rights ◽  
Solid Foundation

Based on an ongoing case in Sweden, where Girjas Sami village sued the Swedish state for violation of property rights, this article examines the European Court of Human Rights’ potential influence in the Arctic region’s legal system when it comes to protection of property of Arctic indigenous peoples. This article shows that notwithstanding the historical background of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the case law of the Court provides a solid foundation to advocate that the Court can take a more active role in protecting the rights of Arctic indigenous peoples. What is different in the case of indigenous peoples is that their rights pre-exist that of a modern state, and this does not correlate with the structure of the Convention, which seemingly leads to less protection under the Convention for indigenous peoples. This puts a higher level of responsibility both upon the applicants, as well as on the Court to scrutinize, and apply, the case law of the Court in line with the Convention and the adopted principle of interpretation.

scholarly journals RESPECT FOR PRIVATE AND FAMILY LIFE UNDER ARTICLE 8 ECHR IN IMMIGRATION CASES: A HUMAN RIGHT TO REGULARIZE ILLEGAL STAY?

2008 ◽  
Vol 57 (1) ◽  
pp. 87-112 ◽  
Author(s):  
Daniel Thym
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Private Life ◽  
European Convention ◽  
Human Right ◽  
Human Rights Protection ◽  
Immigration Laws ◽  
European Court ◽  
The Status ◽  
Protection Of Human Rights

AbstractApplying the European Convention on Human Rights (ECHR) to immigration cases has always been a balancing exercise between the effective protection of human rights and the Contracting States' autonomy to regulate migration flows. In its recent case law, the European Court of Human Rights in Strasbourg (ECtHR) has considerably extended the protective scope of Article 8 ECHR by granting autonomous human rights protection to the long-term resident status independent of the existence of family bonds under the heading of ‘private life’. This has important repercussions for the status of legal and illegal immigrants across Europe, since the new case law widens the reach of human rights law to the legal conditions for leave to remain, effectively granting several applicants a human right to regularize their illegal stay. The contribution analyses the new case law and develops general criteria guiding the application of the ECHR to national immigration laws and the new EU harmonization measures adopted in recent years.

The End of the Road for the Prince? Sixty Years after the Czechoslovak Confiscation of Liechtenstein Property

2006 ◽  
Vol 19 (2) ◽  
pp. 441-458
Author(s):  
BART DELMARTINO
Keyword(s):  
Human Rights ◽  
International Law ◽  
The Other ◽  
Nazi Germany ◽  
International Court Of Justice ◽  
The Road ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
International Obligations

In 1945 Czechoslovakia confiscated Liechtenstein property as reparation for the damage done by Nazi Germany. Private claims failed before the courts of Czechoslovakia, and international law did not provide Liechtenstein with a means of action against Czechoslovakia. When the property was on loan in Germany, a private case for recovery was declared inadmissible by the German courts, in line with Germany's international obligations. The European Court of Human Rights accepted these decisions. Liechtenstein, on the other hand, considered them to violate its sovereignty. In 2005, the International Court of Justice decided that it lacked temporal jurisdiction to rule on the issue.

scholarly journals Specyfika odpowiedzialności za naruszenia Europejskiej Konwencji Praw Człowieka związane z działalnością nieuznawanych reżimów – analiza orzecznictwa

2020 ◽  
pp. 27-66
Author(s):  
Szymon Zaręba
Keyword(s):  
Human Rights ◽  
International Criminal Tribunal ◽  
Effective Control ◽  
International Court Of Justice ◽  
International Courts ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
Protection Of Human Rights ◽  
International Responsibility

The aim of the article is to compare the way in which the issue of responsibility for violations related to the acts of unrecognized authorities claiming to be States is treated by the European Court of Human Rights and other international courts, particularly the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia. The article considers in detail the relations between jurisdiction and responsibility, responsibility of parent States (including the concept of “positive obligations”) and responsibility of States which provide assistance to unrecognized regimes (with emphasis put on the concept of “effective control”). The results of the study indicate that the jurisprudence of the European Court differs in several important aspects from decisions of other international courts. These differences, while undoubtedly enhancing the protection of human rights in Europe, contribute to the process of fragmentation of the law of international responsibility.

scholarly journals Exhaustion of domestic remedies as a condition of lodging a complaint before the European Court of Human Rights

2017 ◽  
Vol 1 (3) ◽  
pp. 168-173
Author(s):  
Tamara Gerasimenko
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Scientific Methods ◽  
European Court ◽  
International Court ◽  
Scope Of Application ◽  
The Subject ◽  
Effective Remedy ◽  
The Right

The subject. The article is devoted to the subject of the exhaustion of domestic remediesbefore filing a complaint to the European Court of Human Rights.The purpose. The purpose of this article is to show and reveal the characteristics of suchimportant condition of lodging a complaint before the European Court of Human Rights asthe exhaustion of domestic remedies.The methodology. The following scientific methods have been used to write this article:analysis, comparing and making conclusions.Results, scope of application. The right of individual petition is rightly considered to be thehallmark and the greatest achievement of the European Convention on Human Rights. Individualswho consider that their human rights have been violated have the possibility oflodging a complaint before the European Court of Human Rights. However, there are importantadmissibility requirements set out in the Convention that must be satisfied beforea case be examined. Applicants are expected to have exhausted their domestic remediesand have brought their complaints within a period of six months from the date of the finaldomestic decision. The obligation to exhaust domestic remedies forms part of customaryinternational law, recognized as such in the case – law of the International Court of Justice.The rationale for the exhaustion rule is to give the national authorities, primarily the courts,the opportunity to prevent or put right the alleged violation of the Convention. The domesticlegal order should provide an effective remedy for violations of Convention rights.Conclusions. The rule of exhaustion of domestic remedies is an important part of the functioningof the protection system under the Convention and its basic principle. 

scholarly journals Internet and freedom of expression in the case law of the European Court of Human Rights

2020 ◽  
Vol 54 (3) ◽  
pp. 1023-1042
Author(s):  
Ljiljana Mijović
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Private Life ◽  
European Convention ◽  
The Internet ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Right ◽  
And Control

Internet as a means of communication, whatever the type of information it might be used for, falls within the exercise of the right to freedom of expression, as guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. As established in the European Court's case law, freedom of expression constitutes one of the essentials of a democratic society, therefore limitations on that freedom foreseen in Article 10 § 2 of the Convention are to be interpreted strictly. In order to ensure effective protection of one's freedom of expression on the Internet, States bear a positive obligation to create an appropriate regulatory framework, balancing the right to freedom of expression on one and the limitations prescribed in Article 10 § 2, on the other hand. Special attention in doing so is to be paid to the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of other human rights and freedoms guaranteed by the European Convention, particularly the right to respect for private life. While it is the fact that the electronic network, serving billions of users worldwide, will never be subject to the same regulations and control, because of the national authorities' margin of appreciation, the European Court established commonly applicable general principles regarding the Internet as a media of exercising right to freedom of expression.

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