VISIOCONFERENSING TECHNOLOGY AND THE RIGHT TO A FAIR TRIAL

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.

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The Inviolability of Diplomatic Agents in the Context of Employment

10.1093/oso/9780198795940.003.0008 ◽

2017 ◽

Author(s):

Lisa Rodgers

Keyword(s):

Human Rights ◽

Fair Trial ◽

European Convention ◽

Employment Contracts ◽

Domestic Servants ◽

Recent Developments ◽

Diplomatic Immunity ◽

The Right ◽

The Way

‘Ordinary’ employment contracts—including those of domestic servants—have been deemed to attract diplomatic immunity because they fall within the scope of diplomatic functions. This chapter highlights the potential for conflict between these forms of immunity and the rights of the employees, and reflects on cases in which personal servants of diplomatic agents have challenged both the existence of immunity and the scope of its application. The chapter examines claims that the exercise of diplomatic immunity might violate the right to a fair trial under Article 6 of the European Convention on Human Rights and the way in which courts have dealt with these issues. The chapter analyses diplomats’ own employment claims and notes that they are usually blocked by the assertion of immunity, but also reflects on more recent developments in which claims had been considered which were incidental to diplomatic employment (eg Nigeria v Ogbonna [2012]).

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

GRUR International ◽

10.1093/grurint/ikaa177 ◽

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.

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Procedural fairness: Between human rights law and social psychology

Netherlands Quarterly of Human Rights ◽

10.1177/0924051921992749 ◽

2021 ◽

pp. 092405192199274

Author(s):

Cathérine Van de Graaf

Keyword(s):

Human Rights ◽

Procedural Justice ◽

Well Being ◽

Fair Trial ◽

European Convention ◽

Public Confidence ◽

Social Psychological ◽

Justice Research ◽

The Right ◽

The Impact

Fair procedures have long been a topic of great interest for human rights lawyers. Yet, few authors have drawn on research from other disciplines to enrich the discussion. Social psychological procedural justice research has demonstrated in various applications that, besides the final outcome, the manner in which one’s case is handled matters to people as well. Such research has shown the impact of procedural justice on individuals’ well-being, their acceptance of unfavourable decisions, perceptions of legitimacy and public confidence. The ECtHR has confirmed the desirability of these effects in its fair trial jurisprudence. Thus far, it remains unclear to what extent the guarantees offered by Article 6(1) of the European Convention on Human Rights (the right to a fair trial) coincide with the findings of empirical procedural justice research. This article aims to rectify this and uncover similarities between the two disciplines.

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The right to a fair trial

Handbook on Human Rights in China ◽

10.4337/9781786433688.00034 ◽

2019 ◽

pp. 493-515

Author(s):

Elisa Nesossi

Keyword(s):

Fair Trial ◽

The Right

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Access to Court v State Immunity

International and Comparative Law Quarterly ◽

10.1093/iclq/52.2.297 ◽

2003 ◽

Vol 52 (2) ◽

pp. 297-332 ◽

Cited By ~ 6

Author(s):

Emmanuel Voyiakis

Keyword(s):

Human Rights ◽

Fair Trial ◽

European Convention ◽

State Immunity ◽

European Court ◽

The Law ◽

The Right

This comment discusses three recent judgments of the European Court of Human Rights in the cases of McElhinney v Ireland, Al-Adsani v UK, and Fogarty v UK. All three applications concerned the dismissal by the courts of the respondent States of claims against a third State on the ground of that State's immunity from suit. They thus raised important questions about the relation the European Convention on Human Rights (the Convention)—especially the right to a fair trial and access to court enshrined in Arcticle 6(1)—and the law of State immunity.

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Bulgarian Military Courts and the Right to a Fair Trial

De Jure ◽

10.54664/ffns4163 ◽

2020 ◽

Vol 11 (2) ◽

Author(s):

Ilmira Ilieva ◽

◽

Keyword(s):

Human Rights ◽

Fair Trial ◽

European Convention ◽

European Court ◽

The Right

This article examines the organization and functioning of Bulgarian military courts to determine to what extent they are compatible with fair trial standards. The guarantees and institutional requirements for providing the right to a fair trial are analyzed in the light of the European Convention on Human Rights and the practice of the European Court of Human Rights. This research is focused on the issue whether Bulgarian military courts could provide a fair trial, held by an independent and impartial court, mainly with regard to civil citizens. For the purpose of the research is scrutinized the ECHR Judgment from 28.11.2019 on the case Mustafa vs. Bulgaria.

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