Nullum Crimen Sine Lege, the European Convention on Human Rights and the Foreseeability of the Law

2021 ◽  
Author(s):  
Sara Paiusco
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Eu Law ◽  
Future Perspectives ◽  
European Court ◽  
Main Development ◽  
Development Paths ◽  
Theoretical Foundations

This book investigates nullum crimen sine lege as European principle in its interpretation by the European Court of Human Rights. The research focuses on the role of foreseeability as a solution to the legality issues raising from judge-made law in criminal law. The rationale and application of foreseeability in ECtHR case-law are scrutinised, trying to extract its main development paths. Current solutions adopted by civil law States (Italy and Germany) are analysed also considering the theoretical foundations of ncsl. Moreover, the role of foreseeability in EU law is considered, as an example of an effectiveness-oriented legal order. In the end, future perspectives for the implementation of the principle of foreseeability are analysed.

scholarly journals Why Attacks on Civic Space Matter in Strasbourg: The European Convention on Human Rights, Civil Society and Civic Space

2019 ◽  
pp. 13-37
Author(s):  
Antoine Buyse
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Case Law ◽  
European Convention ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
European Court ◽  
Civic Space ◽  
Work First

This article explores the role of the European Convention on Human Rights in addressing the issue of attacks on civic space, but also the potential effects of shrinking civic space on Strasbourg’s work. First, an overview of the notions of civil society and civic space is given, linking these concepts to democracy and human rights. Subsequently, the formal and informal roles for civil society in the judicial decision-making are discussed. Finally, the substantive protection offered to civil society and civic space under the ECHR and the case-law of the European Court of Human Rights is analysed. This article argues that the differentiations in theory on the varying contributions of civil society to democracy and human rights are to a large extent reflected in Strasbourg jurisprudence. Even more importantly, the ECHR system and civil society benefit from each other. This is why the current attacks on civic space are not just a problem for civil society itself, but also for the work of the European Court: it is submitted that a shrinking of civic space can also negatively affect the Strasbourg system, as the two are intertwined to a considerable extent.Received: 06 July 2019Accepted: 10 October 2019Published online: 20 December 2019

scholarly journals BLANKET BANS, SUBSIDIARITY, AND THE PROCEDURAL TURN OF THE EUROPEAN COURT OF HUMAN RIGHTS

2019 ◽  
Vol 68 (3) ◽  
pp. 611-638
Author(s):  
Peter Cumper ◽  
Tom Lewis
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Rights Protection ◽  
European Court ◽  
Domestic Level

AbstractIn recent years several commentators have identified a ‘procedural turn’ by the European Court of Human Rights whereby it places increased emphasis on the presence or absence and/or quality of legislative and judicial deliberations at domestic level when assessing the proportionality of allegedly rights-infringing measures. One area where the procedural turn has been particularly apparent is in relation to cases involving blanket bans on activities protected by the European Convention. On most accounts this move to ‘process-based review’ is causally linked to the principle of subsidiarity. In this article it is argued that whilst the shift to process-based review may generally have sound justifications in terms of the subsidiary role of the European Court as compared to States parties to the Convention, there are nevertheless several ironic downsides to this approach in the case of blanket bans, in terms of the certainty and predictability of the Court's case law. Furthermore, and more critically, there may be serious consequences in terms of the rights protection afforded to vulnerable minorities within States who may be at the receiving end of such legislative blanket bans.

scholarly journals papel del artículo 8 CEDH en la construcción del margen de apreciación nacional y la doctrina de las obligaciones positivas del Estado

2020 ◽  
Author(s):  
Lara Redondo Saceda
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
European Convention ◽  
Derechos Humanos ◽  
European Court ◽  
Margin Of Appreciation ◽  
The Right

El artículo 8 del Convenio Europeo de Derechos Humanos –que protege los derechos al respeto la vida privada y familiar, el domicilio y la correspondencia– se ha configurado en estos setenta años de Convenio como uno de los escenarios habituales del desarrollo del margen de apreciación nacional y la doctrina de las obligaciones positivas del Estado. Esto parece justificarse en el contenido y estructura de este artículo y en las restricciones y limitaciones al ejercicio de estos derechos establecidas por su párrafo segundo. En este marco, el objetivo de este artículo es analizar cuál ha sido el papel del artículo 8 CEDH en el desarrollo de estos estándares interpretativos y cómo ha influido en la jurisprudencia del Tribunal Europeo de Derechos Humanos. Article 8 of the European Convention on Human Rights –which protects the right to respect for private and family life, home and correspondence– has been configured as a traditional place for the development of the margin of appreciation and the doctrine of State’s positive obligations. The scope and structure of this article and its limitation clause in the second paragraph seem to justify these developments. In this context, the objective of this article is to analyse the role of Article 8 ECHR in the development of these interpretative standards and its influence in the European Court of Human Rights case-law.

The European Convention on Human Rights and the European Court of Human Rights as Guardians of Fair Criminal Proceedings in Europe

2019 ◽  
pp. 88-114
Author(s):  
Bettina Weisser
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Public Hearing ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
European Court ◽  
The Right ◽  
Procedural Rights

This chapter discusses the role of the European Convention on Human Rights (ECHR) and the European Court of Human Rights (the Court) in safeguarding fair criminal proceedings in Europe. In particular, it analyzes the procedure-related guarantee of a fair trial and its various implications as they are laid down in Article 6 ECHR and shaped by the case law of the Court. The chapter first provides an overview of the general procedural guarantees under Article 6, section 1, focusing on the independence and impartiality of the tribunal, right to a fair hearing (equality of arms, the right to remain silent and the privilege against self-incrimination, entrapment), public hearing, and hearing within a reasonable time. It then considers procedural rights in criminal proceedings under sections 2 and 3 of Article 6, along with the presumption of innocence under section 2 and specifically listed minimum rights in criminal proceedings under section 3.

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.

The Echr Implications of the Investigation Provisions of the Draft Competition Regulation

2002 ◽  
Vol 51 (1) ◽  
pp. 55-89 ◽  
Author(s):  
Alan Riley
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
European Convention ◽  
Notification System ◽  
National Courts ◽  
European Court ◽  
Council Regulation ◽  
Draft Regulation

In September 2000 the European Commission published its long-awaited proposed replacement for Regulation 17, the Proposal for a Council Regulation on the Implementation of the Rules on Competition laid down in Articles 81 and 82 of the Treaty (hereafter the draft regulation).1 The debate on the draft regulation has focused on the abolition of the notification system, the role of the national courts, and the role of the national competition authorities (hereafter the NCAs). However, there is one significant overlooked issue, namely the extent to which the investigation provisions of the draft regulation comply with the case law of the European Court of Human Rights (hereafter ECtHR).2 Given the paucity of the ECtHR's case law in 1961 it is understandable that the implications of the European Convention of Human Rights (hereafter ECHR) for the investigative provisions of what was to become Regulation 17 were not at that time given any great consideration by the European Parliament and the Council of Ministers. However, there is now an extensive human rights case law, developed by the Strasbourg authorities which, it is argued, casts a major shadow over the Commission's existing and proposed investigative powers. It is further argued that the case law of the European Court of Justice (hereafter ECJ) and the Court of First Instance (hereafter CFI) in respect of fundamental rights as general principles of law, does not provide an equivalent standard of protection to that offered by the ECtHR.

Defense Rights in European Legal Systems under the Influence of the European Court of Human Rights

2019 ◽  
pp. 163-188 ◽  
Author(s):  
Thomas Weigend
Keyword(s):  
Human Rights ◽  
Union Member ◽  
Case Law ◽  
European Convention ◽  
Legal Assistance ◽  
Legal Systems ◽  
European Court ◽  
The Right ◽  
European Union Member States

This chapter focuses on the role of the European Court of Human Rights (ECtHR) in interpreting the defense rights enshrined in the European Convention on Human Rights (ECHR) and other European legal systems. In particular, it considers one aspect of European Union Member States’ compliance with ECtHR case law: the rights of suspects and defendants under Article 6 ECHR. The chapter first discusses the right of a suspect to be informed about the accusation against him, the right to legal assistance at the early stages of the criminal process, the privilege against self-incrimination, and the right to examine adverse witnesses. It then explores how the European Court’s jurisprudence has been received by the legislation and judge-made law in France and Germany. It shows that Article 6 ECHR and the ECtHR’s jurisprudence on various clauses of that article exerted an influence on domestic laws, at least in France and Germany.

The Role of the Council of Europe in Improving General Principles of Administrative Law in Poland—Remarks on the 25th Anniversary of Accession to the European Convention on Human Rights

2020 ◽  
pp. 478-503
Author(s):  
Barbara Grabowska-Moroz ◽  
Marek Wierzbowski
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Administrative Law ◽  
European Convention ◽  
Direct Influence ◽  
Council Of Europe ◽  
25Th Anniversary ◽  
European Court ◽  
Standards Of Conduct

This chapter explores the influence on Polish administrative law of pan-European principles of good administration stemming from the Council of Europe (CoE). It reveals that membership of the CoE can be perceived as an element of the democratization process that has had a direct influence on Poland, especially through the case law of the European Court of Human Rights. It furthermore establishes that Polish administrative law generally follows the CoE standards even if at the same time they are overshadowed by the standards flowing from the EU. In addition, the unwillingness of the Polish courts to refer to non-binding CoE standards of conduct which are not strongly founded in statutory law is another obstacle precluding full reception of the said principles.

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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