Deconstitutionalization and the state crisis in Turkey: The role of the Turkish Constitutional Court and the European Court of Human Rights

2020 ◽  
Author(s):  
Özlem Kaygusuz ◽  
Oya Aydın
Keyword(s):  
Human Rights ◽  
The State ◽  
Constitutional Court ◽  
European Court

scholarly journals Fault, knowledge and risk within the framework of positive obligations under the European Convention on Human Rights

2020 ◽  
Vol 33 (3) ◽  
pp. 601-620
Author(s):  
Vladislava Stoyanova
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
Main Argument ◽  
European Court ◽  
Normative Considerations

AbstractThe European Court of Human Rights has consistently reiterated that positive obligations under the European Convention on Human Rights arise when state authorities know or ought to have known about the risk of harm. This article attempts to describe and assess the role of state knowledge in the framework of positive obligations, and to situate the Court’s approach to knowledge about risk within an intelligible framework of analysis. The main argument is that the assessment of state knowledge is imbued with normative considerations. The assessment of whether the state ‘ought to have known’ is intertwined with, first, concerns that positive obligations should not impose unreasonable burden on the state and, second, the establishment of causal links between state omissions and harm.

scholarly journals UKRAINIAN COURTS AND THE PROTECTION OF HUMAN RIGHTS

2016 ◽  
pp. 68-75
Author(s):  
Victor Muraviov
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Constitutional Court ◽  
European Court ◽  
The Supreme Court ◽  
Protection Of Human Rights ◽  
Efficient Protection ◽  
Independent Functioning ◽  
Positive Effect

The article is focused on the interaction between the Ukrainian courts of general jurisdiction and the Constitutional Court of Ukraine in the area of the protection of human rights. There is emphasized that their independent functioning does not provide for the efficient protection of individual rights and freedoms and significantly increases the number of the judicial recourses of the Ukrainian citizens to the European Court of Human Rights. Particular attention is paid to the role of the Constitutional Court of Ukraine in the protection of human rights, which combines the functions of the constitutional control and constitutional supervision. Its activities are focused on the official interpretation on the Constitution of Ukraine. Attention is paid to the list those who may bring the actions before the Constitutional Court, which includes apart from the state bodies the natural and legal persons. The is mentioning of the issues on initiating of proceedings before the Court. Also broadly is analyzed Constitutional Court’ activities concerning the interpretation of the Constitution in the light of the European Convention on Human Rights and other international agreements dealing with the protection of human rights. The article stresses on the contribution of other Ukrainian courts in the affirmation of the constitutional concept of the protection of human rights and freedoms in Ukraine. The majority of resolutions of such highest judicial body in the system of courts of general jurisdiction as the Supreme Court of Ukraine concern the judgments of the European Court of Human Rights. As it is emphasized in the article the independent functioning on the Constitutional Court and the courts of general jurisdiction does not provide for the cooperation between both branches of courts. Courts of general jurisdiction feel free as to the appeal to the Constitutional Court. Even when such appeals are directed to Constitutional Court the decisions of the letter are not binding to the courts of general jurisdiction. Special attention is paid to the introduction of the institute of constitutional complaint and its positive effect on the judicial mechanism of the protection of human rights in Ukraine.

scholarly journals Life imprisonment: a relic of the past or dira recessitas

2021 ◽  
Vol 108 ◽  
pp. 02020
Author(s):  
Maksim Anatolievich Tuliglovich ◽  
Aleksander Vitalievich Shvets ◽  
Nodar Shotaevich Kozaev ◽  
Boris Vasilyevich Epifanov ◽  
Suhrob Saidakhmad Narzullozoda
Keyword(s):  
Human Rights ◽  
Current System ◽  
Criminal Policy ◽  
The State ◽  
Constitutional Court ◽  
Life Imprisonment ◽  
Russian Science ◽  
European Court ◽  
Severe Punishment ◽  
Criminal Legislation

The existence of life imprisonment in the criminal legislation of Russia is assessed ambiguously both by representatives of Russian science and by foreign analysts. This problem is many-sided and ambiguous in its content. Its solution depends on a large number of variables, sometimes independent of the subject of analysis. These include trends in criminal policy, the state of crime in the state, and the related “punitive claims” of the population. The balance of Domestic and International Interests in ensuring Human Rights is the key idea in analyzing life imprisonment from the perspective of historical viability or reality. The purpose of the research was to clarify the place and role of life imprisonment in the current system of criminal punishment based on the analysis of doctrinal approaches, the practice of the Constitutional Court of the Russian Federation, the European Court of Human Rights, and statistical data. The work is based on the use of such general scientific methods of research as dialectical, statistical, comparative-legal and hermeneutic. The above methods are used in interaction to obtain a synergistic effect. In the course of the study, the “deterrent” mechanism of the most severe punishment in the criminal system was found to be sufficient. It is determined that life imprisonment is a necessary measure to ensure social justice, albeit cruel, but appropriate in today’s society.

An Emerging Right to a “Gay” Family Life? The CaseOliari v. Italyin a Comparative Perspective

2016 ◽  
Vol 17 (3) ◽  
pp. 451-485 ◽  
Author(s):  
Sabrina Ragone ◽  
Valentina Volpe
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Same Sex Couples ◽  
European Court ◽  
National Perspective ◽  
The Right

This Article analyses, through the lens of comparative law, theOliari and others v. Italyjudgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. TheOliaricase is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrateOliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of theOliarijudgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.

EL DIFÍCIL PROBLEMA DE LA RESPONSABILIDAD PATRIMONIAL POR FUNCIONAMIENTO ANORMAL DEL TRIBUNAL CONSTITUCIONAL

2010 ◽  
pp. 295-348
Author(s):  
EDORTA COBREROS MENDAZONA
Keyword(s):  
Human Rights ◽  
The State ◽  
Constitutional Court ◽  
Derechos Humanos ◽  
European Court ◽  
Council Of State ◽  
Abnormal Operation

Planteada directamente la cuestión de la responsabilidad patrimonial del Estado por dilaciones indebidas (como funcionamiento anormal) del Tribunal Constitucional, se analizan críticamente dos recientes sentencias de la Jurisdicción Contencioso-Administrativa y una reforma legislativa. Para la mejor comprensión de tales actuaciones, previamente se estudia la jurisprudencia del Tribunal Europeo de Derechos Humanos con respecto a la violación del plazo razonable por las jurisdicciones constitucionales, así como la postura mantenida por el Consejo de Estado. Itxura gabeko luzapenak (funtzionamendu anormala) eragin duelako Estatuak daukan ondare-erantzukizunaren kontua zuzen-zuzenean aurkeztu, eta administraziorako auzi-errekurtsoen jurisdikzioko bi epaitza berri eta lege-erreforma bat aztertzen ditu lan honek. Jarduketa horiek hobeto ulertzeko, jurisdikzio konstituzionalek arrazoizko epea ez denean betetzen Giza Eskubideen Europako Auzitegiak zein jurisprudentzia daukan aztertu behar da lehenik, eta horren aurrean Estatuko Kontseiluak zein jarrera erakutsi duen. As the question of the State patrimonial liability for undue delays (abnormal operation of the Adminstration) has already been addressed by the Constitutional Court, two recent rulings by the Contentious-Administrative jurisdiction and a legislative amendment are critically analyzed. For a better comprehension of them, it is studied the European Court of Human Rights case law regarding the violation of the reasonable delay in constitutional jurisdictions together with the position sustained by the Council of State.

scholarly journals The Guarantees of the Human Rights of the Defendant in the Law System in Kosovo

2017 ◽  
Vol 5 (11) ◽  
pp. 7
Author(s):  
Armend Podvorica ◽  
Adelina Rakaj
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Practical Implementation ◽  
Constitutional Court ◽  
Law System ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Law ◽  
The Republic

The paper "The guarantees of the human rights of the defendant in the law system in Kosovo" aims to treat the access of the Republic of Kosovo in the delivery of constitutional guarantees and legal guarantees to protect the defendant in the criminal procedure. Within these guarantees, special emphasis is placed on the judicious acts in force that provide these guarantees in the Republic of Kosovo. A special analysis with regard to this paper is dedicated to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the practice of European Court of Human Rights (ECtHR), the Constitution of the Republic of Kosovo and the Criminal Procedure Code of Kosovo (CPCK). The analysis of those acts clarifies that the guarantees of the Legal System in Kosovo coincide with the rights of the defendant. Another dimension that finds space within the paper is the practical implementation of the guarantees provided by the aforementioned acts in terms of the rights of the defendant. The role of the Constitutional Court in the Republic of Kosovo in the past and now has been mainly analyzed in the formation of the constitutional and international guarantees, applicable in Kosovo concerning the rights of the defendant in the criminal procedure.

scholarly journals The Ramifications of Reservations to Human Rights Treaties

2020 ◽  
Vol 8 (1) ◽  
pp. 150-165
Author(s):  
Lara Mullins
Keyword(s):  
Human Rights ◽  
International Law ◽  
The United States ◽  
The State ◽  
State Sovereignty ◽  
Political Climate ◽  
European Court ◽  
Human Rights Treaties ◽  
Conservative Values

This paper discusses the legal ramifications of reservations to multilateral human rights treaties. It examines the approach of the International Court of Justice (ICJ), compared to that of the European Court of Human Rights (ECtHR), in light of the general practice in international law relating to reservations and the International Law Commission’s commentary. The paper then discusses the scope for change and growth, given the nature of the two different approaches. Once it has set out the current law it describes the role of the evolving moral, social and political climate in society and the effect that it has on the conversation around human rights and treaty reservations. It answers three main questions around reservations: first, whether reservations are allowed; second, the conditions under which they are allowed; and third, if reservations are not allowed, whether the invalid reservation cancels a party’s membership of the treaty. Having answered these three questions, the paper draws to the conclusion that, ultimately, for international law to continue to be effective, state sovereignty must be given the utmost respect and importance in relation to reservations. With the current polarisation of the political climate, as is evidenced by the traditionally liberal states’ leaning towards conservative values, as in Britain and the United States, a push by the ECtHR to sever reservations from treaties and still bind the state will only alienate key players from the international stage. At face value, one may be inclined to think that the stringent protection of human rights values and limiting the reservations to such values is beneficial but, in reality, this would make participation in the international framework unappealing to states as their sovereignty would be infringed. Therefore, the ICJ’s approach is advantageous as it understands the role of reservations in achieving participation and it also understands the state practice element. Thus, in line with the ILC commentary and the ICJ’s judgements, the ECtHR’s recent rulings will not become the international law norm and state sovereignty with respect to reservations will continue to prevail.

scholarly journals Role of the European Court of Human Rights in realization of social security right

2020 ◽  
Vol 2 (2) ◽  
pp. 55-63
Author(s):  
Lyusya Mozhechuk ◽  
Andriy Samotuha
Keyword(s):  
Human Rights ◽  
Social Security ◽  
Occupational Injuries ◽  
Case Law ◽  
European Convention ◽  
Constitutional Court ◽  
Economic Rights ◽  
European Court ◽  
The Right

The article deals with the role of the European Court of Human Rights (ECtHR) in protecting the right to social security. There is the analysis of the case law of the ECtHR on the violation of the right to social security, namely the right to receive a pension, which the ECtHR classifies as property rights. The authors have outlined the ways to improve the practice of the ECtHR in this area in modern national and world socio-economic conditions. According to available estimates, around 50 per cent of the global population has access to some form of social security, while only 20 per cent enjoy adequate social security coverage. Ensuring an ap-propriate mechanism for the protection of human and civil rights is a priority for every country. However, according to case law, the number of complaints of violations or non-recognition of their rights is growing every year. An important role in the protection of human rights in today's conditions is played by an international judicial body - the European Court of Human Rights. In Ukraine, where socio-economic rights are recognized at the constitutional level, their guarantee content in the current laws is still not clearly defined, and therefore, as evidenced by the practice of the Constitutional Court of Ukraine, legal mechanisms their protection, in particular the means of judicial control remain ineffective. The right to social security is the right to access and retention of benefits, both in cash and in kind, without discrimination in order to protect, in particular, against (a) lack of income from work caused by illness, disability, maternity, occupational injuries , unemployment, old age or death of a family member; (b) inaccessible access to medical care; (c) insufficient family support, especially for children and adult dependents. It is well known that the European Convention does not contain many socio-economic rights as such (with a few exceptions - protection of property and the right to education). Thus , the former president of the ECtHR Jean-Paul Costa specifically pointed to another important European human rights treaty – the European Social Charter. Human rights are a universal value, and their protection is the task of every state. The European Court of Human Rights plays an important role in protecting human rights in modern conditions. The functioning of such an international judicial institution can not only solve a problem of protection of violated rights, but also affect the development of the judicial system of each state. The main principle of realization and judicial protection of social rights is non-discrimination on the grounds of sex, age, race, national and social origin of the individual, and the role of auxiliary institutions of the Council of Europe in generalizing and improving the ECtHR’s activity has been emphasized.

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