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.

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.

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.

Overruling ‘the Salduz Doctrine’ in Beuze v Belgium: The ECtHR’s further retreat from the Salduz principles on the right to access to lawyer

2019 ◽  
Vol 10 (4) ◽  
pp. 342-362
Author(s):  
Ergul Celiksoy
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Case Law ◽  
European Convention ◽  
The United Kingdom ◽  
European Court ◽  
Increasing Trend ◽  
Grand Chamber ◽  
The Right ◽  
Right Of Access

In November 2018, the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Beuze v Belgium. Relying on Ibrahim and Others v the United Kingdom, the Grand Chamber held that the Salduz principles require a two-stage test of analysis, and hence, ruled out that systematic statutory restriction of a general and mandatory nature would in itself constitute an automatic violation of Article 6 § 3(c) of the European Convention on Human Rights. However, the Beuze judgment appears to be very controversial, since the Grand Chamber failed to put forward any convincing reason why it departed from previous case law, particularly Dayanan v Turkey and other judgments against Turkey. In their separate opinion, the concurring Judges in Beuze were concerned that the Beuze judgment overruled ‘ Salduz itself and all other cases that have applied the Salduz test’, and thus, ‘actually distorts and changes the Salduz principle and devalues the right that the Court established previously’. This article analyses the Beuze judgment in the light of the Court’s recent jurisprudence in order to examine whether it contradicts and dilutes the principles previously set out. Further, it discusses the implications of the new standards established in Ibrahim and Others and in subsequent cases, particularly Beuze. Particular attention is paid to the questions of how ‘fair’ is the application of overall fairness assessment in every case, how may the Court’s changing direction of approach concerning the right to access to a lawyer affect the increasing trend of recognition thereof, as a rule, by the contracting states, and finally, to what extent the new principles, especially those established in Beuze, comply with Directive 2013/48/EU on the right of access to a lawyer.

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. 

Medical Negligence, Systemic Deficiency, or Denial of Emergency Healthcare? Reflections on the European Court of Human Rights Grand Chamber Judgment in Lopes de Sousa Fernandes v. Portugal of 19 December 2017 and Previous Case-law

2019 ◽  
Vol 26 (1) ◽  
pp. 26-43
Author(s):  
Julia Kapelańska-Pręgowska
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Medical Negligence ◽  
European Court ◽  
State Obligations ◽  
International Responsibility ◽  
Grand Chamber ◽  
Hard Cases

Abstract On 19 December 2017 the Grand Chamber of the European Court of Human Rights (ECtHR) delivered a judgment in the Lopes de Sousa Fernandes v. Portugal case. The judgment may be described as one of the hard cases dealing with a healthcare context, as it aimed to clarify the scope of positive substantive state obligations under the European Convention on Human Rights and the conditions of international responsibility. This article explores the judgment against the wider background of the previous case-law of the Court. It focuses on the question of the classification of healthcare problems into three categories: medical negligence, systemic deficiency, and denial of emergency healthcare, and reflects upon their ratione materiae justiciability before the European Court of Human Rights.

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.

Stages of Migration and the European Convention on Human Rights

2021 ◽  
pp. 219-254
Author(s):  
Kristina Hatas
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Destination Country ◽  
Recent Case ◽  
European Convention ◽  
Comprehensive Overview ◽  
European Court ◽  
Grand Chamber ◽  
The Right

This case list offers a guide to the European Court of Human Rights (ECtHR) case law pertaining to migration. While the case list does not cite every ECtHR decision related to migration, it offers a comprehensive overview of important instances of case law indicative of the ECtHR’s jurisprudence on migration. These are, for example, Grand Chamber decisions, or cases cited by the Court in its more recent case law. In addition to including key cases cited in the preceding chapters of this book, this list also includes cases identified in thematic case law guides of the ECHR and recent jurisprudence in the area of migration, notified by the ECHR in monthly updates. The cases are organised in thematic blocks, which in turn appear in the order in which they pertain to the different temporal stages of migration, from entering the destination country to the right to remain and the cultural and religious rights of long-term migrants.

scholarly journals The hidden meanings in the case law of the European Court for Human Rights

Semiotica ◽  
2016 ◽  
Vol 2016 (209) ◽  
pp. 209-230
Author(s):  
Laura Ervo
Keyword(s):  
Human Rights ◽  
Discourse Analysis ◽  
Great Britain ◽  
Organized Crime ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
European Court ◽  
Grand Chamber ◽  
The Right

AbstractIn my paper, I will study the case law of the European Court of Human Rights by using discourse analysis as a method. My hypothesis is that the court has changed its line concerning the right to a fair trial (in article 6 of the European Convention for Human Rights) over the last twenty years. Earlier, it always defended the rights of the accused and the authorities’ problems, for instance, in fact gathering, were recessive. The same covered the rights of the witnesses even if the court usually confessed that also the witness has their rights, which should be respected. It also stressed that authorities of course have difficulties with proof – for example – the offences that are connected with the organized crime. Still, the rights of defense were always number one and inviolate. During recent years, the line seems to have changed even if the court has not transparently said so. However, it has given some new precedents by the Grand Chamber where the rights of the defense have been limited more than before; for instance, the cases Jalloh v. Germany (11 July 2006), Gäfgen v. Germany (1 June 2010), and Al-Khawaja and Tahery v. Great Britain (15 December 2011). The expressions used in case law show that the way of thinking has changed as well. Still, the changes are sometimes more hidden than transparent where discourse analysis is the only tool for catching the changes and showing differences in the thinking of the court.

The Right to Cross-Examine Witnesses – Case Law under the European Convention on Human Rights

2002 ◽  
Vol 71 (1) ◽  
pp. 83-106
Author(s):  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
General Terms ◽  
European Court ◽  
The Subject ◽  
Fair Hearing ◽  
The Right

AbstractThe subject of this article is the right to cross-examine witnesses as laid down in Article 6 paragraph 3(d) of the European Convention on Human Rights. Case law of the European Court and Commission of Human Rights shows that general principles are applied by the Convention organs. Thus, it is practicable – in more general terms – to outline some acceptable possibilities of using statements made to the police or in court before the beginning of the hearing without violating the fair hearing requirement in Article 6.

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.

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