scholarly journals KAZNA DOŽIVOTNOG ZATVORA U EVROPSKOM SISTEMU ZA ZAŠTITU LJUDSKIH PRAVA

2021 ◽  
Vol 59 (1) ◽  
pp. 159-171
Author(s):  
Nezir Pivić ◽  
Lejla Zilić-Čurić
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Research Paper ◽  
European Convention ◽  
Legal Analysis ◽  
Life Imprisonment ◽  
Human Right ◽  
Legal Standards ◽  
European Court ◽  
The Subject

Sentencing to life imprisonment is not in contrast with human rights issued in European Convention for the protection of Human Rights and Fundamental Freedoms. However, the sentenced imposed to life imprisonment and system to of its execution must meet certain standards to be compatible with requirements stated in Article 3 of European Convention. The subject of our research paper are mentioned standards that Contracting States have to respect in terms of enforcing the sentence of life imprisonment. Introduction to the subject of the research is given in the form of penological review of life imprisonment as well as review of internationally established legal standards under the umbrella of the United Nations and the Council of Europe that relate to sentencing and enforcement of life imprisonment. In focus of this research paper is case law of the European Court of Human Rights that refer to life imprisonment. In that context, the focus of this research paper deals with the issue of the relationship between life imprisonment and prohibition of torture as human right that is absolutely protected and the issue of the Contracting States’s margin in appreciation in prescribing the form and conditions of revision of the sentence. The intention of the authors is focused on the legal analysis of Strasbourg case law on issue of compatibility of life imprisonment with the requirements of the Article 3 of the European Convention and to present the standards generated by Strasbourg case law regarding the implementation and mechanism of revision of life imprisonment.

scholarly journals CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS IN DECISIONS REGARDING NON-COMPLIANCE OF LIFE IMPRISONMENT WITH THE REQUIREMENTS OF ARTICLE 3 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

2020 ◽  
Vol 2020 (1) ◽  
pp. 33-46
Author(s):  
Dzhuzha О. M. ◽  
◽  
Melnychenko І. P. ◽  
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Case Law ◽  
Theory And Practice ◽  
European Convention ◽  
Legal Analysis ◽  
Life Imprisonment ◽  
The United Kingdom ◽  
European Court ◽  
The Right

The article provides a legal analysis of the decisions of the European Court of Human Rights in such cases like “Vinter and Others v. The United Kingdom”, “Hutchinson v. The United Kingdom”. The European Court of Human Rights has established key standards for those sentenced to life imprisonment, compliance with which will ensure that this type of punishment meets the requirements of the Article 3 of the European Convention on Human Rights. Such standards are: 1) sentencing of life imprisonment is not prohibited and does not conflict with the Article 3 or any other article of the Convention. The imposition of “non-reducible” life imprisonment may raise questions of compliance with the requirements of the Article 3 of the Convention; 2) in decision making whether life imprisonment can be considered as “non-reducible”, it is necessary to establish whether the person convicted to life imprisonment had any prospect of release. If national law provides for the possibility of reviewing life imprisonment regarding its mitigating, reducing, terminating or releasing, this is sufficient to satisfy the requirements of th Article 3 of the Convention; 3) for the purposes of the Article 3 of the Convention it is sufficient that life imprisonment is reducible de jure and de facto; 4) European penitentiary policy is currently focusing on the correctional purpose of imprisonment, in particular until the end of long prison sentences; 5) at the very beginning of the sentence a person convicted to life imprisonment has the right to know what he must do to consider the possibility of his release and under what conditions the sentence will be reviewed or also in what order a request to this may be made; 6) if domestic law does not provide for any mechanism or possibility to review life imprisonment, then the non-compliance with the requirements of the Article 3 of the Convention occurs at the time of imposition of life imprisonment and not at a later stage. The importance of such standards separating of the European Court of Human Rights for the national theory and practice of life imprisonment is that these provisions are effective guidelines for determining the prospects of releasing from sentencing in the form life imprisonment. Key words: European Court of Human Rights, Convention for the Protection of Human Rights and Fundamental Freedoms, case law, convict, life imprisonment.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

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.

scholarly journals Right to abortion in modern law and in the practice of the European Court of Human Rights

2021 ◽  
pp. 159-170
Author(s):  
Majida Lubura
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Right To Life ◽  
Human Right ◽  
Safe Abortion ◽  
Human Rights Protection ◽  
European Court ◽  
Scientific Disciplines ◽  
The Right

A basic human right - the right to life, even today faces numerous questions when it comes to its scope. One of those questions is the issue of the right to abortion, which is the subject of numerous controversies among lawyers, philosophers, medical workers, theologists, as well as among citizens in the broadest sense. Debates that exist in various scientific disciplines indicate the complexity of these issues that needs to be legally regulated at the domestic and international level. For that reason, it is necessary to follow and study the judgments of international bodies that have been passed in connection with this issue. As the most developed system of Human Rights protection has been established within the European Convention on Human Rights, and at the same time the most relevant for our country, in this paper the author studies the current practice of the European Court of Human Rights related to the right to abortion. It is evident, from the case law presented in this paper that the Court had a very delicate and difficult task to balance between diametrically opposing rights and interests of various interested parties. The Court's judgments show a consensus only regarding the question of the existence of the right to abortion in cases where the right to life and health of women is endangered. Opponents of abortion claim that in this case, it is not the right to abortion, but the right to life of a woman and that only then an abortion is allowed and justified to be performed, as well as that it is a conclusion that can be deduced from the Court's case law. However, the author of this paper believes that even though the practice of the court is quite neutral, it still tends more towards granting the right to safe abortion.

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. 

Zakharov v. Russia (Eur. Ct. H.R.)

2016 ◽  
Vol 55 (2) ◽  
pp. 207-266
Author(s):  
Lorna Woods
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
European Court ◽  
The Subject ◽  
Grand Chamber ◽  
National Systems

The European Court of Human Rights (ECtHR) in Zakharov v. Russia held that the Russian system of surveillance constituted a violation of Article 8 of the European Convention on Human Rights (ECHR). This decision is not the first judgment concerning surveillance, but it is of note because it is a Grand Chamber judgment in which the ECtHR drew together strands of its existing case law. It comes at a time when national systems of surveillance are the subject of much scrutiny: further cases are pending before the ECtHR.

scholarly journals The protection of confidential communication between a lawyer and a client in the case law of the European Court of Human Rights

2021 ◽  
Vol 93 (2) ◽  
pp. 479-493
Author(s):  
Dimitrije Đukić
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Case Law ◽  
Third Parties ◽  
European Convention ◽  
Human Right ◽  
Proper Functioning ◽  
European Court ◽  
The Right

Confidentiality of communication is a very important human right that gains in importance when the communication is conducted between a lawyer and a client. Namely, for a lawyer to be able to adequately represent their client, the client must be sure that the information they entrust to the lawyer will not reach third parties, i.e. that the communication will remain confidential. In this sense, protecting the confidentiality of communication between a lawyer and a client is very important not only for representing the client in each case, but also for the proper functioning of the legal system. This paper aims to establish which articles of the European Convention protect the right to a confidential communication between a lawyer and a client and how this communication is protected in practice by the European Court of Human Rights. The paper also examines whether it is possible to prescribe a measure by which such an important right as the right to privileged and confidential communication between a lawyer and a client could be limited and if so under what conditions.

Human Rights Law and National Sovereignty in Collusion: The Plight of Quasi-Nationals at Strasbourg

2003 ◽  
Vol 21 (1) ◽  
pp. 63-98 ◽  
Author(s):  
Marie-Benedicte Dembour
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Legal Analysis ◽  
Human Beings ◽  
Political Climate ◽  
European Court ◽  
Global Age ◽  
The Common ◽  
Nationality Law

This article offers a review of the cases where the European Court of Human Rights has been called upon to decide whether or not the expulsion of a ‘quasi-national’ following criminal conviction violated the European Convention on Human Rights. The Court has adopted various findings since its first ruling in 1991. The first part of this article argues that neither the facts of the cases, nor the composition of the relevant judicial panels, nor an evolution in the overall political climate explain in themselves the inconsistency in the case law, qualified as arbitrariness by one of the judges. The second part of the article moves beyond a close socio-legal analysis to discuss the significance of the common rule (once inadmissibility decisions are taken into consideration), according to which quasi-nationals are deportable. Nationality law, at the core of the case law, is revealed as a fiction that creates privilege at the same time as it obscures the discriminatory basis of this privilege under the guise of operating a neutral categorisation of human beings. The article notes in conclusion the continuing grip of the nation State in the global age and deplores the legitimation, at the highest judicial level, of exclusion on the basis of unquestioned national privilege.

Discriminación racial y ejercicio del derecho a la instrucción en la jurisprudencia del Tribunal Europeo de Derechos Humanos. El caso de la minoría gitana

2012 ◽  
pp. 247-291
Author(s):  
Lucía CASADO CASADO
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
The Czech Republic ◽  
Derechos Humanos ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Subject ◽  
Grand Chamber ◽  
The Right

LABURPENA: Lan honetan, lehen-lehenik, hurbilpen orokor bat egingo dugu Giza Eskubideak eta Oinarrizko Askatasunak Babesteko Europako Hitzarmenak jasotzen dituen diskriminazio-debekuaren eta hezkuntzarako eskubidearen eraketari; eta ondoren, arraza-diskriminazioaren debekuak hezkuntzarako eskubidearekin duen lotura aztertuko dugu, Giza Eskubideen Europako Auzitegiaren jurisprudentziaren esparruan. Horretarako, eremu horretako lau epai esanguratsuri helduko diegu: Giza Eskubideak eta beste batzuk Txekiar Errepublikaren aurka kasua, bi epai sortarazi dituena (bata Bigarren Sekzioarena, eta bestea Sala Nagusiarena); Sampanis eta beste batzuk Greziaren aurka kasua, eta Orsus eta beste batzuk Kroaziaren aurka kasua. Kasu horietan planteatzen den auzia da ea estatu jakin batzuek ijito etniako umeak eskolaratzeko abiarazi dituzten neurriak diskriminatzaileak diren ala ez. Horretaz gainera, gogoeta batzuk egingo ditugu alor horretako jurisprudentziaren bilakaeraz eta beraren ondorioez. RESUMEN: este trabajo, tras realizar una aproximación general a la configuración de la prohibición de discriminación y al derecho a la instrucción en el Convenio Europeo para la protección de los derechos humanos y las libertades fundamentales, analiza la prohibición de discriminación racial en conexión con el ejercicio del derecho a la instrucción en la jurisprudencia del Tribunal Europeo de Derechos Humanos. Para ello, examina cuatro sentencias relevantes recaídas en este ámbito (casos D.H. y otros contra República Checa, que ha dado lugar a dos sentencias —una de la Sección 2.ª y otra de la Gran Sala—; Sampanis y otros contra Grecia; y Orsus y otros contra Croacia), en las que se plantea si las medidas adoptadas por determinados Estados en relación con la escolarización de niños de etnia gitana son o no discriminatorias. También se realizan algunas consideraciones en torno a la evolución jurisprudencial en este ámbito y sus consecuencias. ABSTRACT: After a general approximation to the configuration of the prohibition of discrimination and of the right of instruction by the European Convention for the protection of human rights and fundamental freedoms, this work analyzes the prohibition of racial discrimination in relation with the exercise of the right of instruction within the case law of the European Court of Human Rights. For this purpose, four relevant judgments on the subject (cases D.H and others against the Czech Republic, which produced two rulings: one by the Second section and other by the Grand Chamber; Sampanis against Greece; and Orsus and others against Croatia) where it arose whether the measures adopted by some States in relation to the schooling of kids from the gypsy ethnic group are or not discriminatory are studied. Some considerations regarding the evolution by the case law regarding this area are also carried out and their consequences.

Limits to Measures of Confiscation of Property Linked to Serious Criminal Offences in the Case Law of the European Court of Human Rights

2021 ◽  
Vol 30 (1) ◽  
pp. 265-281
Author(s):  
Roberto Virzo
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
International Agreements ◽  
European Convention ◽  
Legal Standards ◽  
European Court ◽  
The One ◽  
Criminal Matters ◽  
Principle Of Legality

In the past thirty years, a growing number of international agreements and acts of international institutions has resorted to different kinds of confiscation (“direct confiscation”, “value confiscation”, “enlarged confiscation” or “nonconviction based confiscation”) to contrast and suppress international and transnational crimes. It can be considered that the flexibility – in terms of variety of measures and functions – of confiscation, together with the forced and permanent deprivation of property to which it always leads, significantly affect the favor towards this measure by States and international organisations. The European Court of Human Rights (ECtHR), taking into account the aforementioned proliferation of international acts and agreements concerning the fight to criminal activities, maintains that common “European and even universal legal standards” can be said to exist which encourage the confiscation of property linked to serious criminal offences. Moreover, the Court has gone so far as to maintain that, in accordance with such “universal legal standards”, States Parties to the European Convention of Human Rights must be given “a wide margin of appreciation with regard to what constitutes the appropriate means of applying measures to control the use of property such as the confiscation of all types of proceeds of crime”. However, the implementation of such measures by States authorities must conform with human rights guarantees – inter alia the principle of legality in criminal matters, due process rights and property rights – provided for in customary and conventional international law. This essay seeks to examine the relevant case law of the ECtHR and to focus on the possibility of reconciling, on the one hand, international obligations on the protection of human rights and, on the other hand, international agreements and acts – concerning the fight against criminal activities – that provide for the various types of confiscation measures.

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