Remote Participation in Criminal Proceedings: Does the Reformed Italian Regulation Represent an Application Extension Able to Conflict with the Right to a Fair Trial?

2019 ◽  
Vol 9 (2) ◽  
pp. 187-201
Author(s):  
Giulia Angiolini
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Italian Law ◽  
European Court ◽  
Recent Reform ◽  
The Right ◽  
Remote Participation

The purpose of this paper is to try to analyse the Italian regulation of accused persons’ remote participation in criminal proceedings. The interest in this matter arises from the suspected frictions of the provisions at hand with fundamental rights to be guaranteed for a fair trial. These suspicions, aroused right after the introduction of the institute in Italian law, have been increased by the recent reform of the discipline of remote participation, and they become even clearer after a comparison of Italian regulation with those of other European Countries. Hence, an inescapable question occurs: will the European Court of Human Rights and the Italian Constitutional Court save the new regulation as they did with the previous one?

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.

Ensure the Inviolability of Personal Life in the Conduct of Police Preventive Activities

Law and World ◽  
2020 ◽  
Vol 6 (2) ◽  
pp. 51-59
Keyword(s):  
Human Rights ◽  
Personal Data ◽  
Private Life ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Human Beings ◽  
National Courts ◽  
European Court ◽  
Principle Of Proportionality ◽  
The Right

The paper addresses the basic rights and freedoms guaranteed by the Constitution of Georgia, in particular, issues related to personal data. The development of information technology has had a significant impact on the dangers of illegal processing of personal data. The European Court of Human Rights considers the inviolability of private life as a precondition for human autonomy, independent development and protection of human dignity. According to the norms of international law, the right to respect for private life is recognized as one of the most important and fundamental rights, the protection of which is indicated by the legislation of Georgia. The aim of the paper is to analyze the legislation and practice of police law in the field of protection of the right to privacy and to offer relevant recommendations, taking into account the standards set by European and national courts. Human rights legislation must ensure the protection of all human beings against the abuse of state power. Interference with rights must be based on the principle of proportionality. The use of policing should not pose an excessive threat of fundamental human rights violations. Interference with a particular right must be done under principle of proportionality to achieve a certain public good. In clarifying the issue of alleged violation of the right, special attention should be paid to the severity and probability of the expected threat to legal good. The Constitution of Georgia, EU and Council of Europe data protection standards, national legislation, as well as the case law of the European Court of Human Rights and the National Constitutional Court are analyzed around the topic. In addition, the reports of the State Inspector, the Public Defender and the relevant scientific literature are used to study the above issues.

La Corte europea dei diritti dell’uomo: il divieto di eterologa non viola la Convenzione europea sui diritti umani Nota in margine alla sentenza della Grande Camera del 3 novembre 2011

2012 ◽  
Vol 61 (1) ◽  
Author(s):  
Marina Casini
Keyword(s):  
Human Rights ◽  
Human Reproduction ◽  
Constitutional Court ◽  
Artificial Reproduction ◽  
Member States ◽  
Italian Law ◽  
European Court ◽  
Lower Chamber ◽  
Grand Chamber ◽  
The Right

Il contributo prende in esame la sentenza della Corte europea dei diritti dell’uomo emanata dalla Grande Camera il 3 novembre 2011 (caso S.H. et Al.v. Austria n. 57813/00). Essa va ad arricchire positivamente il panorama biogiuridico europeo. La sentenza in oggetto riguarda il giudizio instaurato nei confronti dell’Austria, a proposito della disciplina che pone il divieto di fecondazione artificiale eterologa. Nella sentenza, resa in via definitiva, la Grande Camera ha superato, ribaltandolo, il giudizio espresso dalla Camera semplice il 1° aprile 2011, affermando che il divieto di fecondazione artificiale eterologa, contenuto nella legge austriaca, non contrasta con gli artt. 8 (diritto alla vita privata e familiare) e 14 (principio di non discriminazione) della Convenzione europea per la salvaguardia dei diritti e delle libertà fondamentali. La Corte non affronta le questioni bioetiche e biogiuridiche sollevate dalla fecondazione artificiale eterologa (si pensi al diritto del figlio all’unitarietà delle figure genitoriali), ma salva la legge austriaca facendo riferimento alla dottrina del c.d. “margine di apprezzamento” degli Stati membri. È auspicabile comunque che la sentenza influisca sul giudizio di costituzionalità in ordine al divieto di eterologa contenuto nella legge italiana. Nella prospettiva di valorizzare la voce degli Stati, merita sostegno iniziativa cittadina europea promossa ai sensi dell’art. 11 del Trattato di Lisbona per riconoscere il diritto alla vita di ogni essere umano fin dal concepimento. ---------- The article considers the decision of the European Court of Human Rights given by the Grand Chamber on November 3rd 2011 (case S.H. et Al. vs. Austria, application n. 57181/00). This ruling, which adds an important contribution to European Biolaw, concerns the Austrian law that prohibits heterologous artificial human reproduction and reversed the previous ruling (April, 1st, 2011) by the lower chamber of the European Court. So, the Grand Chamber affirmed that the ban on heterologous artificial reproduction does not violate article 8 (Right to respect for private and family life) and article 14 (Prohibition of discrimination) of Convention for the Protection of Human Rights and Fundamental Freedoms. The Grand Chamber did not address the bioethical questions raised by heterologous artificial reproduction, but confirmed the law by referring to the theory of a “wide margin of appreciation” of member States. It is to be hoped that this decision will carry weight with the Italian Constitutional Court when it considers the Italian law prohibiting heterologous artificial reproduction. With regard to valorizing the beliefs of the member States, it would be good to support the European citizen’s initiative, promoted following article 11 of the Lisbon Treaty, to recognize the right to life of every human being from conception.

ANONIMNI SVEDOCI I ZAŠTITA LjUDSKIH PRAVA

2021 ◽  
pp. 277-296
Author(s):  
Veljko Turanjanin ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
Step Test ◽  
European Convention ◽  
Criminal Proceedings ◽  
National Legislation ◽  
European Court ◽  
The Right ◽  
Insufficient Knowledge

Тhe author deals with the problem of anonymous witnesses in the context of the right to a fair trial in the jurisprudence of the European Court of Human Rights. One of the problems in the application of Article 6 of the European Convention on Human Rights is related to the testimonies of anonymous witnesses in criminal proceedings. The case law of the European Court of Human Rights has developed certain criteria that must be followed in national legislation, but it is obvious that there is insufficient knowledge regarding this problem, as well as the reluctance to apply the mentioned rules. The standards developed by the ECtHR are very important for national laws and jurisprudence. The author explains the development of a three-step test that needs to be examined when assessing a violation of the right to a fair trial, through an analysis of a multitude of judgments, in order to provide guidance on the application of Article 6 § 3 (d) of the European Convention on Human Rights. After introductory considerations, the author explains who can be a witness under the Convention, since this question is raised independently of national legislation, and then explains the right to examine witnesses, the admissibility of testimonies by anonymous witnesses and the examination of the three-stage test, and gives concluding remarks.

Diritto a una tutela giurisdizionale effettiva e revisione dei processi penali: la Corte costituzionale e il caso Dorigo

2009 ◽  
pp. 85-110
Author(s):  
Stefano Dorigo ◽  
Pietro Pustorino
Keyword(s):  
Human Rights ◽  
International Law ◽  
Critical Comment ◽  
European Convention ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
European Court ◽  
The Right ◽  
Italian Constitution ◽  
Italian Norms

- The work is a critical comment to the judgment of the Italian Constitutional Court of 30 April 2008, n. 129, on the reopening of the criminal proceedings requested by the European Court of Human Rights. The work begins dealing deeply with the problem of the customary nature in international law of the right to a fair trial and the consequent possibility to invoke, in the framework of the Italian national system, Article 10, paragraph 1, of the Constitution. The authors suddenly stress the relevance of other constitutional norms in order to recognize a constitutional or quasi-constitutional rank to the norms of the European Convention on Human Rights, demonstrating that the Italian Constitution offers several possibilities on the matter. A very recent judgment of the Court of Cassation, adopted on 11 December 2008, confirms this opinion interpreting the Italian norms on the reopening of the criminal proceeding on the basis of Articles 111 and 117 of the Constitution.

scholarly journals Expression of opinion through Acts. A brief analysis of the Hungarian Constitutional Courts practice

2021 ◽  
Author(s):  
Szabolcs Stock
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
European Court ◽  
The Right

The aim of the article is to present how one can excercise their freedom of expression through acts. I focus ont the decisions of the Hungarian Constitutional Court, the European Court of Human Rights and the U. S. Supreme court. I analyze these decisions, and compare the fundamental rights that can collide, such as freedom of expression versus the right to property, which one should prevail when they come into collision. I also study how one can decide, whether the act should fall within the protected circle of the freedom of expression, or it should be penalized as a crime, or misdemeanor.

scholarly journals Doprinos raspravi o načelu jednakosti procesnih sredstava

2017 ◽  
Vol 38 (1) ◽  
pp. 339-352
Author(s):  
Dejan Bodul ◽  
Sanja Grbić
Keyword(s):  
Human Rights ◽  
Equal Opportunity ◽  
Fair Trial ◽  
Essential Elements ◽  
European Convention ◽  
Constitutional Court ◽  
Structural Problems ◽  
Official Gazette ◽  
European Court ◽  
The Right

The principle of equality of arms requires that each party to the proceedings should have equal opportunity to present facts and support them with their evidence without of putting any party in a substantial disadvantage. (Case LB INTERFINANZ AG against Croatian, judgment, 27.03.2008 ., application no. 29549/04.). In terms of the procedural balance between the parties, this principle constitutes one of the essential elements of the right to a fair trial. However, the question of equality of arms is again raised in Bankruptcy Act (Official Gazette, 71/15. hereinafter: BA). BA has kept solution in which the creditor is able to initiate bankruptcy proceedings if he makes the existence of its claims likely possible and the existence of the reasons for bankruptcy. However, the legislator has retained the disputed solution in which the probability of the existence of the creditor claim can be proven by non-final judicial or non-final administrative decisions. As there are different solutions in terms of the above mentioned assumptions, the authors will focus on general statements based on comparative experiences, without detail consideration of the numerous and specific comparative solutions. This paper discusses the practical, but also theoretical implications of positive legal solutions specifically analysing the law of the European Court of Human Rights (ECtHR) in proceedings according to Art. 6 (right to a fair trial) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), because we assume that these information play key role in the understanding of the issue concerned. In addition, authors are trying to get the answer on the question will overall unsatisfied indicators of bankruptcy proceedings, which are the result of structural problems, need “stringent” procedural measures to resolve that situation. The subject of the paper is also a nomotehnical dimension of this issue, because the same solution was in the old Bankruptcy Act (Official Gazette, 44/96, 29/99, 129/00, 123/03, 82/06, 116/10, 25/12, and 45/13.) which suspended the Constitutional Court.

scholarly journals Slepenu izmeklēšanas metožu lietošanas principu attiecināmība uz likumā “Par policiju” paredzētā kontrolpirkuma izpildi

2020 ◽  
Vol 2 (17) ◽  
pp. 89-107
Author(s):  
Mārcis Grinciuns
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Criminal Proceedings ◽  
European Court ◽  
Investigation Methods ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Secret Investigation ◽  
The Right ◽  
Police Control

Rakstā tiek pētīta Eiropas Cilvēktiesību tiesas (ECT) pausto slepeno izmeklēšanas metožu (undercover operations) izpildes principu attiecināmība uz likumā “Par policiju” noteiktā kontrolpirkuma (turpmāk rakstā – policijas kontrolpirkums) izpildi. Policijas kontrolpirkums galvenokārt tiek veikts, lai atklātu administratīvos pārkāpumus, kuru izskatīšana nav piekritīga ECT, jo Cilvēka tiesību un pamatbrīvību aizsardzības konvencijas (turpmāk rakstā – Konvencija) 6. pantā noteiktās tiesības uz taisnīgu tiesu paredzētas apsūdzētajiem krimināllietās [1, angļu valodas versija]. Taču atsevišķos gadījumos arī administratīvais pārkāpums (vai disciplinārpārkāpums) var būt piekritīgs ECT kompetencei – tas atkarīgs no tā, kāda rakstura pārkāpums tiek izmeklēts un kāds sods par tā izdarīšanu paredzēts. ECT ir definējusi trīs kritērijus, pēc kuriem tā vērtē, vai pārkāpums atbilst krimināla pārkāpuma būtībai un ir piekritīgs Konvencijas 6. pantam. Aktuāls ir jautājums, vai likumpārkāpumi, kuru izmeklēšanā ir paredzēts izmantot policijas kontrolpirkumu, ir piekritīgi Konvencijas 6. pantam, un, ja tā, vai policijas kontrolpirkuma normatīvais regulējums ir atbilstošs ECT paustajiem slepenu izmeklēšanas metožu lietojuma principiem (nosacījumiem). The article examines the relevance of the principles of the use of secret investigation methods (undercover operations) expressed by the European Court of Human Rights (ECHR) to the test-purchase measure set out in the Law “On police” (police test-purchase). The police test-purchase mainly is used to detect administrative offences which are not subject to review by the ECHR, since the right to a fair trial provided in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention) is reserved for defendants in criminal proceedings. The question is whether the offences, where police test-purchase is used as part of investigation, are subject to Article 6 of the Convention, and if so, whether the regulatory framework for police control is in line with the principles (conditions) of the use of secret investigative methods expressed by the ECHR.

scholarly journals The Right to a Fair Trial before The European Court of Human Rights

2019 ◽  
Vol 2 (2) ◽  
pp. p133
Author(s):  
Alaa Mohamed Ismail Abdrabo
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Fair Trial ◽  
European Convention ◽  
New Work ◽  
Criminal Proceedings ◽  
European Court ◽  
Criminal Charges ◽  
The Right ◽  
Right Of Access

Article 6 of the European Convention on Human Rights (ECHR) guarantees the right to a fair trial, applies to disputes relating to civil rights and obligations as well as to criminal charges. The right to a fair trial includes, inter alia, the right of access to a court, the right to be heard and the equality of arms between the parties. This challenging new work elucidates the meaning of the fair trial and looks at the fair trials jurisprudence of the ECHR.Article 6 of the European Convention on Human Rights has become the defining standard within Europe for determining the fairness of criminal proceedings. Its success has been attributed to the fact that it is not based on a particular model of criminal procedure.

scholarly journals Some Approaches to Define the Concept of “Access to Justice”

2020 ◽  
Vol 11 (11) ◽  
pp. 208-213
Author(s):  
Sverba Y. I.
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
The State ◽  
Access To Justice ◽  
Constitutional Court ◽  
Legal Aid ◽  
Financial Barriers ◽  
European Court ◽  
The Right

The article is dedicated to the analysis of the concept of "access to justice". The national legislation, the case law of the Constitutional Court of Ukraine and the European Court of Human Rights, as well as academic papers have been analyzed by the author. The author concludes that there are at least two approaches to define the concept of "access to justice": broadside and restricted one. The latter is inherent in Ukraine, since the Constitution stipulates that justice in Ukraine is exercised by the courts exclusively. The case law of the European Court of Human Rights explored in this article demonstrates a broad interpretation of the right to a fair trial, as quasi-judicial authorities are often empowered to make decisions that directly affect a person's rights and obligations. Foreign researchers are more progressive in determining the concept of access to justice: the latter is considered as an intention to resolve person's legal problems, not limited with access to classical judicial protection. Even though the access to justice concept is not legally defined, it includes the core elements as legal awareness of person’s rights; lack of financial barriers to access to the court; the right to free legal aid guaranteed by the state; a fair and independent court; a reasonable time to settle a dispute, as well as the enforcement of the judgment. The state could ensure the effective access to justice only if all of the said elements are implemented. At the same time, the states have both positive (to provide the right to free legal aid) and negative obligations (not to interfere with court activities, etc.). Keywords: access to justice, justice, right to a fair trial, rule

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