scholarly journals O direito de acesso à justiça efetiva e em tempo razoável e o pacto de San José da Costa Rica na proteção do direito à saúde

2020 ◽  
Vol 24 (2) ◽  
pp. 81-100
Author(s):  
Juliane Caravieri Martins ◽  
◽  
Igor Vinícius de Lima Afonso ◽  
Keyword(s):  
Human Rights ◽  
Social Justice ◽  
Costa Rica ◽  
Right To Health ◽  
Access To Justice ◽  
San Jose ◽  
International Treaty ◽  
The Right ◽  
Judicial Protection ◽  
Right Of Access

This research examines the right of access to justice – fair, effective and timely judicial protection – from the perspective of the American Convention on Human Rights, also known as the Pact of San José of Costa Rica, and Brazilian constitutional norms, verifying wether they protected the right to health in order to realize social justice. Furthermore, this study questiones whether this Pact contributed to the protection of the right to health for Brazilians. In other words, this paper investigates if this international treaty contributed to the promotion of the right to health in Brazil by allowing citizens, through the phenomenon of judicialization of public policies, access to fairer and more effective judicial protection.

Simoncioni v. Germany

2015 ◽  
Vol 109 (2) ◽  
pp. 400-406
Author(s):  
Riccardo Pavoni
Keyword(s):  
Human Rights ◽  
Crimes Against Humanity ◽  
Access To Justice ◽  
Constitutional Court ◽  
Sovereign Immunity ◽  
International Court Of Justice ◽  
International Court ◽  
Compensation Claims ◽  
The Right ◽  
Right Of Access

With Judgment No. 238/2014, the Italian Constitutional Court (hereinafter Court) quashed the Italian legislation setting out the obligation to comply with the sections of the 2012 decision of the International Court of Justice (ICJ) in Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening) (Jurisdictional Immunities or Germany v. Italy) that uphold the rule of sovereign immunity with respect to compensation claims in Italian courts based on grave breaches of human rights, including—in the first place—the commission of war crimes and crimes against humanity. The Court found the legislation to be incompatible with Articles 2 and 24 of the Italian Constitution, which secure the protection of inviolable human rights and the right of access to justice (operative paras. 1, 2).

scholarly journals Health and Human Rights Linkage in Bangladesh: Stakeholders’ views from the grassroots

2021 ◽  
Author(s):  
Redwanur Rahman ◽  
Ameerah Qattan
Keyword(s):  
Human Rights ◽  
Social Justice ◽  
Civil Society ◽  
Health Service ◽  
Population Health ◽  
Right To Health ◽  
Survey Method ◽  
Health Service Provision ◽  
Study Results ◽  
The Right

Abstract Background: Bangladesh has attained substantial progress in healthcare services and population health. This study examines the knowledge and awareness about the linkage between human rights and healthcare among patients, healthcare providers and members of civil society in Bangladesh. Methods: A questionnaire was distributed between May and August 2018 to 483 respondents among patients (health service users), providers, and other groups (includes members of civil society, politicians, social and religious elites, media personnel, and rights-based groups) in a regional area in Bangladesh. Of these participants, 58% were from urban areas and 42% from rural areas. As many as 78% were male and 22% female. A survey method and descriptive data analysis was performed to complete the study. Results: Participants in the study were aware and had knowledge about the linkage between human rights and health service provision, but they claimed the right to health has not been implemented in practice. The non-implementation of the right to healthcare is suggestive of a lack of political will, which negatively contributes to the social well-being of the larger population. It has undesirable effects on the development of the health system and the population’s health status. This reflects poor monitoring and performance of public institutions which has ramifications on the wider social parameters of social justice, equity, democratic values, transparency, and accountability. Conclusion: The development of population health is rooted in maintaining and promoting the right to healthcare. The ethical principle of human rights lies in the notions of human dignity, equity, equality, and social justice. The government should adhere to these values at societal levels and engage multiple stakeholders to promote the right to health for the benefit of a wider population.

scholarly journals Implementation of Human Rights and the Mandatory Precedents in Foreign Trade, Legal Effectiveness: Mexico Case

2021 ◽  
Vol 9 (12) ◽  
pp. 153-164
Author(s):  
Laura Hernandez Ramirez
Keyword(s):  
United States ◽  
Human Rights ◽  
Foreign Trade ◽  
Free Trade Agreement ◽  
Trade Agreement ◽  
Access To Justice ◽  
Court Of Justice ◽  
The Supreme Court ◽  
The Right ◽  
Right Of Access

We make an analysis of the implementation of human rights and the mandatory precedent in matters of Mexican foreign trade, in an administrative and judicial context in the search for legal effectiveness with constitutional control, highlighting the implementation of human rights contained in treaties commercial, such as access to justice and prompt and expeditious; We point out a recent case of human rights and foreign trade, with the implementation in the Mexican legal system, of the Free Trade Agreement Mexico United States Canada, before the Supreme Court of Justice of the Nation, as well as a possible proposal before the provisions of its Article 14.D.5, regarding the right of access to prompt and expeditious justice in investment matters, and avoiding the resolution of controversies before international arbitration panels that have been questioned.

Access to Justice: Ukraine and Europe

2020 ◽  
Vol 11 (4) ◽  
pp. 1122
Author(s):  
Tetiana M. BREZINA ◽  
Nadiia P. BORTNYK ◽  
Iryna Yu. KHOMYSHYN
Keyword(s):  
Civil Rights ◽  
Legal Regulation ◽  
Modern Concept ◽  
Free Access ◽  
Access To Justice ◽  
Legal Provisions ◽  
European Experience ◽  
The Right ◽  
Judicial Protection ◽  
Right Of Access

The paper examines the right of access to justice through the lens of domestic and European experience. The purpose of the study is to improve the theoretical and legal provisions of the content of the right of access to justice based on European experience, the formation of its modern concept, including the construction of proposals for defining this concept in the domestic doctrine of the judiciary. The methodological basis of the study comprises a set of methods that have been comprehensively used to achieve the purposes of this paper: the study of the legal nature of the right of access to justice, the establishment of its structural elements, the formulation of conclusions and proposals for the implementation of European Court of Human Rights standards in Ukrainian legislation was carried out with the use of system-structural and Aristotelian methods. It is noted that the access to justice is the availability, legal consolidation, and direct functioning of guarantees stipulated by law, which allow everyone to freely exercise their right to judicial protection and restoration of the violated right. It is concluded that the right to judicial protection cannot be exercised without a mechanism of access to justice and legal regulation. Ukraine, as a full subject of international law, must guarantee, based on universal standards, the personal right of every individual to free access to justice. However, identification of the social nature of the right of access to justice, for any state, including Ukraine, means an assertion of a fairly wide margin of appreciation both upon specifying forms of support for citizens to exercise the right, and upon determining the categories of citizens who need such support. This obliges the legislator to respect the constitutional principles of justice, equality, proportionality, as well as stability and guarantee of human and civil rights in Ukraine.

scholarly journals ACCESS TO JUSTICE IN CRIMINAL PROCEEDINGS: LEGAL STANCES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Lex Russica ◽  
2020 ◽  
pp. 56-67 ◽  
Author(s):  
T. Yu. Vilkova
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
European Court ◽  
Different Types ◽  
Protection Of Human Rights ◽  
The Right ◽  
Right Of Access

The article is devoted to the analysis of the stances developed in the case law of the European Court of Human Rights regarding the content, scope, general principles of ensuring the right of access to justice, and permissible limits applied to restrict the right in question. The author has substantiated the conclusion that the European Court of Human Rights associates access to justice with Paragraph 1 of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus, the concept of access to justice includes a number of elements: the right to have recourse to court; the right to have a case heard and resolved in compliance with the requirements of a fair trial; the right to have the judgment enforced; the set of safeguards that allow the person to exercise the rights under consideration effectively. According to the European Court of Human Rights, access to justice should be ensured at all stages including pre-trial (criminal) proceedings and reviewing of court decisions by higher courts. However, the right of access to justice is not absolute. The restrictions imposed must have a legitimate purpose and reasonable proportionality must be obtained between the means used and the goal determined. In view of the requirement mentioned above, the national legislation may provide for the particularities of application of Paragraph 1 of Article 6 of the Convention to proceedings in different types of courts and at different stages, for example, by establishing a certain procedure for the court to grant individuals the right to appeal to a higher court. The author has demonstrated the main directions of applying the legal stances of the European Court of Human Rights regarding access to justice to improve the Russian criminal procedural legislation and law enforcement practices, as well as for further scientific research.

7 Immunity, 7.1 Manderlier v Organisation des Nations Unies and Etat Belge ( Ministre des Affaires Etrangères ), Tribunal Civil de Bruxelles, 11 May 1966, Journal des Tribunaux, 10 December 1966, No. 4553, 121

2016 ◽  
Author(s):  
Schmitt Pierre
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Access To Justice ◽  
Legal Personality ◽  
The United Nations ◽  
The Right ◽  
Right Of Access ◽  
Domestic Law

This 1966 case constitutes one of the first cases in which UN immunity from jurisdiction was challenged. Apart from the question whether the UN had legal personality under domestic law, all other arguments raised by the plaintiff in this case—seeking to restrict UN immunity from jurisdiction—are still debated nowadays before domestic jurisdictions. The Brussels Civil Tribunal notably examined whether the UN’s immunity was conditional upon the latter’s respect of art. VIII, Section 29 of the Convention on Privileges and Immunities of the United Nations, whether the immunity could be rejected in favour of a human rights argument based on the right of access to justice, and whether it could only be invoked in relation to actions or situations that were necessary for the UN to achieve its goals. Finally, it assessed the existence of a waiver in this particular case.

EFFECTIVE LIMITATIONS AND ILLUSORY RIGHTS: A COMMENT ON THE MOTHERS OF SREBRENICA DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS

2014 ◽  
Vol 23 (1) ◽  
pp. 269-286 ◽  
Author(s):  
Valentina Spiga
Keyword(s):  
Human Rights ◽  
International Organizations ◽  
Critical Review ◽  
The Other ◽  
Access To Justice ◽  
European Court ◽  
Alternative Means ◽  
The One ◽  
The Right ◽  
Right Of Access

The latest attempt by the relatives of the victims of the Srebrenica massacre to hold the UN accountable for the inaction of UNPROFOR while the Bosnian enclave was attacked has once again proven unsuccessful. In a unanimous decision in the Stichting Mothers of Srebrenica and others v. the Netherlands case, the European Court of Human Rights declared the application to be ill-founded, finding that the decision of Dutch courts to grant immunity to the UN did not violate the applicants’ right of access to a court. An intrinsic tension between two contemporary trends seems to be embodied in this recent decision. On the one hand the decision follows established and authoritative practice according to which a civil claim cannot override immunity from jurisdiction even though no alternative means of redress is available. On the other hand it conflicts with the growing emphasis placed on the right of access to justice and the right to remedy for victims of gross violations of human rights in the last decade. This note aims to provide a critical review of the decision, focusing on the “alternative means of remedy” test in cases involving the immunity of international organizations. In doing so, the note questions whether such a test must always be a prerequisite for the effective enjoyment of the right of access to a court.

scholarly journals Moving Beyond Judicial Conflict in the Name of the Pre-Eminence of Fundamental Human Rights

2021 ◽  
pp. 331-335
Author(s):  
Valerio Onida
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
Armed Forces ◽  
Fundamental Rights ◽  
State Immunity ◽  
International Court ◽  
The Republic ◽  
The Right ◽  
Judicial Protection ◽  
Right Of Access

AbstractSentenza 238/2014 can be criticized insofar as it seems to ground Italy’s refusal to comply with the Jurisdictional Immunities Judgment of the International Court of Justice on the basis of the right of access to a judge for the victims of the conduct of German armed forces during World War II. Indeed, the principle of state’s immunity to the civil jurisdiction of other states regarding the conduct of their own armed forces does not in itself breach a victim’s right of access to a judge, which theoretically in this case might also be granted by a German court. However, Sentenza 238/2014 has the merit of highlighting, in the specific case of the Italian Military Internees (IMIs), the violation of the victims’ right to an effective judicial protection of their fundamental rights, given that German jurisdictions excluded every reparation that favoured IMIs. Such fundamental rights must prevail over the international rules relating to state immunity because, according to the supreme principles of the Italian constitutional order and to international law itself, fundamental human rights violations related to crimes against humanity must benefit from an effective protection. The impasse between Italy and Germany should be solved through a new joint initiative between the two governments (carried out ideally under a common understanding of the two Presidents of the Republic), which should examine the applicants’ cases in order to grant them reparation. Though symbolic, such reparation will have an important moral dimension.

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