Copyright and fundamental rights in European Court of Human Rights case law

2020 ◽  
pp. 99-123
Author(s):  
Oleg Soldatov
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
European Court

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.

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.

‘A Risk of Irreparable Damage’: Interim Measures in Proceedings before the European Court of Human Rights

2010 ◽  
Vol 12 ◽  
pp. 313-336
Author(s):  
Pamela McCormick
Keyword(s):  
Human Rights ◽  
Essential Feature ◽  
Case Law ◽  
Fundamental Rights ◽  
Judicial System ◽  
European Court ◽  
To Come ◽  
Human Rights Norms ◽  
Interim Measures ◽  
Irreparable Damage

Abstract Interim measures can be indicated by most international decision-making bodies which monitor compliance with human rights norms to the parties involved in the proceedings before them, in order to prevent the commission of any irreversible actions which would either preclude the proper examination of a complaint or render the final judgment meaningless. The availability of interim measures is an essential feature of any effective judicial system, particularly where fundamental rights are at stake. They play a particularly important role in proceedings before the European Court of Human Rights (‘the Court’). The volume of requests for an indication of interim measures received by the Court each year is substantial and increasing. This presents the Court with a number of legal and practical problems. This chapter examines the circumstances in which an indication of interim measures may be made, as well as the consequences of non-compliance with such an indication, although it is acknowledged that the incidence of non-compliance is low. With its recent case law, the Court has brought the existence of interim measures to the attention of a wider audience, which is desirable as only such an awareness will render the protection of Convention rights practical and effective rather than theoretical and illusory, a stated goal of the Court. However, such a wider awareness will in turn increase the volume of requests again, making it likely that the Court will in years to come have to make significant changes to the scope of requests for interim measures, as well as to its practices and procedures for considering such requests.

CURRENT DEVELOPMENTS: IV. CITIZENSHIP AND HUMAN RIGHTS

2004 ◽  
Vol 53 (2) ◽  
pp. 493-501 ◽  
Author(s):  
Erika Szyszczak
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
International Obligations ◽  
Court Of First Instance

Citizenship and human rights continue to play an important role in the evolution of Community law. Both sets of principles have appeared in the case law of the European Courts and in the creation of a Constitutional document for Europe. Part II of the draft Constitution incorporates the Charter of Fundamental Rights of the Union. Additionally, the first report from the independent network of experts in fundamental human rights details the various international human rights obligations which the Member States are subject to, analysing Member State policy in a number of areas in the light of the international obligations.1Paradoxically, at a time when greater emphasis is being paid to the constitutional recognition of human rights there are indications of divisions between some of the Advocates General, the Court of First Instance and the European Court of Justice (the Court) on the constitutional role of fundamental rights in relation to access to justice.

scholarly journals Concept of abuse of procedural rights: general theoretical analysis (based on the case-law of the European Court of Human Rights)

2021 ◽  
pp. 166-175
Author(s):  
Taras Pashuk
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
European Convention ◽  
Judicial Interpretation ◽  
Judicial Practice ◽  
European Court ◽  
Wide Range ◽  
Restrictive Measures ◽  
Procedural Rights

The author analyses the concept of abuse of procedural rights with reference to the case-law of the European Court of Human Rights (ECtHR). In their applications to the ECtHR the applicants often claim that the violations the European Convention on Human Rights (the ECHR) were accompanied by various abuses by the domestic authorities. Such abuses may be of procedural nature and those matters are examined by the ECtHR quite often because the Convention is primarily aimed at protecting an individual from State arbitrariness. At the same time, the problem of abuse of procedural rights may arise before the ECtHR, when such acts were committed by an applicant. This aspect of the problem is being examined in the present article. In this regard the issue of abuse of procedural rights appears in the case-law of the ECtHR in the context of the complaints concerning the alleged violations of rights under the ECHR. This may happen when the State measures to address such a negative phenomenon (for example, penalty for the abuse of procedural right) may at the same time affect the fundamental rights under the Convention. Apart from that, this issue may arise in the context of the application of restrictive measures by the ECtHR itself due to applicants’ abuse of their right of individual petition to the ECtHR. The main features of the abuse of procedural rights arising from the case-law of the ECtHR are the following: (1) using the procedural right contrary to its purpose (in view of multiple purposes of human conduct, this condition implies the need to establish a dominant purpose in the procedural conduct of the person); (2) the presence of damage resulting from such procedural conduct; (3) the exceptional nature of such procedural conduct (implying the necessity to focus on the explicit and obvious facts of procedural abuses). The combination of these features should be used cumulatively in order to determine correctly the limits of applicability of this concept and distinguish it from other related concepts, such as legitimate use of procedural right, refusal to use the procedural right, good-faith mistake in procedural conduct. In addition, the lack of legislative regulation of this institution in the law on criminal procedure of Ukraine calls for the development of judicial practice under Article 185-3 of the Code of Administrative Offenses of Ukraine as regards the administrative liability for contempt of court. It is argued that the provisions of Article 185-3 of that Code, if given appropriate judicial interpretation, can cover a wide range of procedural abuses. Keywords: abuse of procedural right, realisation of subjective right, contempt of court.

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.

scholarly journals Supervision of the execution of The European Court of Human Rights’ case law

2021 ◽  
pp. 33-36
Author(s):  
Corina Siman ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
The Political ◽  
Council Of Europe ◽  
European Court ◽  
Fundamental Freedoms ◽  
European System ◽  
Protection Of Human Rights ◽  
Executive Body

The Convention for the Protection of Human Rights and Fundamental Freedoms empowers the decision-making and executive body of the Council of Europe, id est the Committee of Ministers, to supervise the execution of the European Court of Human Rights’ case law. The mechanism thus established possesses a certain specificity, which is inherent to the European system of protection of fundamental rights. Therefore, both the political nature of the Committee of Ministers and the elements that form the process of monitoring the implementation of the content of the Strasbourg Court’s judgments and decisions are of interest.

Composing Europe’s Fundamental Rights Area: A Case for Discursive Pluralism

2015 ◽  
Vol 17 ◽  
pp. 210-246
Author(s):  
Louise HALLESKOV STORGAARD
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
Rights Protection ◽  
Court Of Justice ◽  
European Court ◽  
Normative Basis ◽  
The Relationship ◽  
The Eu

AbstractThis article offers a perspective on how the objective of a strong and coherent European protection standard pursued by the fundamental rights amendments of the Lisbon Treaty can be achieved, as it proposes a discursive pluralistic framework to understand and guide the relationship between the EU Court of Justice and the European Court of Human Rights. It is argued that this framework – which is suggested as an alternative to the EU law approach to the Strasbourg system applied by the CJEU in Opinion 2/13 and its Charter-based case law – has a firm doctrinal, case law and normative basis. The article ends by addressing three of the most pertinent challenges to European fundamental rights protection through the prism of the proposed framework.

The Relationship Between the EU Charter of Fundamental Rights and the European Convention on Human Rights: an Originalist Analysis

2015 ◽  
Vol 11 (3) ◽  
pp. 482-511
Author(s):  
Stephen Brittain
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Relationship

European Convention on Human Rights and the European Union Charter of Fundamental Rights: relationship – Teleological method of interpretation of the European Court of Justice: meaning, justifications, and criticisms – Originalist method of interpretation: meaning, justifications, and criticisms – Original meaning of Article 52(3) of the Charter: text, drafting history, case law – Conclusion: case law of European Court of Human Rights not strictly binding on the Court of Justice of the European Union.

Some Constitutional Thoughts about the Islamic Full Veil Ban in Europe

ICL Journal ◽  
2013 ◽  
Vol 7 (3) ◽  
Author(s):  
Benito Aláez Corral
Keyword(s):  
Human Rights ◽  
Public Space ◽  
Case Law ◽  
Public Spaces ◽  
Public Institutions ◽  
Fundamental Rights ◽  
European Countries ◽  
European Court ◽  
The Uk ◽  
The Right

AbstractThis work deals critically with the Islamic full veil ban in public spaces, that is start­ing to be adopted in some European countries and is being echoed in some regulations in Spanish municipalities. After a brief analysis of the general bans recently passed in Belgium and France and of the partial bans adopted in schools by other countries, like Germany, Ita­ly or the UK, the article analyses the constitutionality of the recently approved municipal bans in Spain from a constitutional perspective, including the case-law of the European Court of Human Rights. The author reaches the conclusion that according to the Sp Const 1978 an adequate interpretation of the limitations to the freedom of religion and the right to one’s own image, involved when wearing an Islamic full veil, would make a general ban on the full veil in each and every public space unconstitutional, but would allow its partial ban regarding the access to municipal buildings or services or regarding teachers and pupils at schools, as far as these partial bans could be justified by constitutional values like safeguarding of public institutions or services, or protecting the fundamental rights of others. `

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