scholarly journals The presumption of innocence in EU law: One step forward, two steps backwards

Crimen ◽  
2021 ◽  
Vol 12 (1) ◽  
pp. 38-52
Author(s):  
Svetlana Nenadić
Keyword(s):  
Case Law ◽  
Legal Regulation ◽  
Fundamental Rights ◽  
Presumption Of Innocence ◽  
Eu Law ◽  
Criminal Proceedings ◽  
Eu Member States ◽  
Court Of Justice ◽  
European Court ◽  
The Right

The topic of the paper is the presumption of innocence in EU law and the case law of the Court of Justice EU. The paper begins by outlining legal regulation of the presumption of innocence in the Charter of fundamental rights of the EU and the Directive on certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings. The second part of the paper analyzes the case law of the Court of Justice EU in the application of the Directive with special reference to the presumption of innocence standards of the European Court of Human Rights. The paper points out the minimalistic orientation of the CJEU regarding the presumption of innocence, which in some elements lowers the standards of protection offered by ECtHR. Low standards threaten to produce a domino effect on the criminal courts in EU member states, which could create a risk to the presumption of innocence as a guarantee of the legitimacy of criminal proceedings.

scholarly journals Prawo do prywatności osób prawnych podczas kontroli przedsiębiorstwa dokonywanej przez Komisję Europejską

2017 ◽  
Vol 107 ◽  
pp. 11-25
Author(s):  
Marta De Bazelaire De Ruppierre
Keyword(s):  
Competition Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Right ◽  
The Eu

THE RIGHT TO PRIVACY OF LEGAL PERSONS DURING THE EUROPEAN COMMISSION’S INSPECTIONSThe paper aims to discuss the application of the Charter of Fundamental Rights by the EU institutions in competition law proceedings, showing as an example the respect for the right to privacy of undertakings during the inspections carried out by the European Commission. Although exercising the control powers of the Commission potentially collides with a number of fundamental rights expressed in the Charter, it is the analysis of Art. 7 CFR that allows to depict the evolution of the EU’s approach to privacy of legal persons, showing the accompanying judicial dialogue, or lack thereof, between the European Court of Human Rights and the Court of Justice of the EU. The article short-defines the dawn raids, examines the application of Article 7 CFR to legal persons, highlighting the aspects of protection of domicile and secrecy of correspondence, compares the standards provided by ECHR and EU law, pondering also on how the CFR guarantees can be provided and effectively controlled. It also reflects on the issue whether the Court of Justice has a forerunner role in promoting fundamental rights of undertakings in matters of competition law.

Composing Europe’s Fundamental Rights Area: A Case for Discursive Pluralism

2015 ◽  
Vol 17 ◽  
pp. 210-246
Author(s):  
Louise HALLESKOV STORGAARD
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
Rights Protection ◽  
Court Of Justice ◽  
European Court ◽  
Normative Basis ◽  
The Relationship ◽  
The Eu

AbstractThis article offers a perspective on how the objective of a strong and coherent European protection standard pursued by the fundamental rights amendments of the Lisbon Treaty can be achieved, as it proposes a discursive pluralistic framework to understand and guide the relationship between the EU Court of Justice and the European Court of Human Rights. It is argued that this framework – which is suggested as an alternative to the EU law approach to the Strasbourg system applied by the CJEU in Opinion 2/13 and its Charter-based case law – has a firm doctrinal, case law and normative basis. The article ends by addressing three of the most pertinent challenges to European fundamental rights protection through the prism of the proposed framework.

COMPANIES AND THEIR FUNDAMENTAL RIGHTS: A COMPARATIVE PERSPECTIVE

2015 ◽  
Vol 64 (3) ◽  
pp. 661-696 ◽  
Author(s):  
Peter Oliver
Keyword(s):  
Freedom Of Speech ◽  
Case Law ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Double Jeopardy ◽  
Court Of Justice ◽  
European Court ◽  
The Us ◽  
Us Supreme Court ◽  
The Right

AbstractThis article explores the case law of the European Court of Human Rights, the European Court of Justice and the US Supreme Court on the fundamental rights of commercial companies. The rights considered include property, the privilege against self-incrimination, freedom of speech, double jeopardy, the right to make political donations, and the freedom of religion. The article highlights the dangers of taking the fundamental rights of companies too far, as has recently occurred in the US; and it advocates a cautious and coordinated approach to this delicate issue, which has become increasingly important on both sides of the Atlantic.

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 The ECJ's Coman judgment: Recognition of same-sex marriage indirectly?

2021 ◽  
Vol 3 (2) ◽  
pp. 77-93
Author(s):  
Milena Petrović
Keyword(s):  
Case Law ◽  
Eu Law ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Eu Member States ◽  
European Court ◽  
To Come ◽  
Union Citizen ◽  
The Right ◽  
The Eu

In the Coman case, the European Court of Justice was asked whether the term "spouse" - for the purpose of EU law - includes the same-sex spouse of an EU citizen who has moved between EU Member States. The ECJ answered this question affirmatively, holding that a refusal to recognise a same-sex marriage and the resultant refusal to grant family reunification rights to a Union citizen who moves to another Member State, would constitute an unjustified restriction on the right to free movement that Union citiyens enjoy under EU law. This case comment analyses the judgment, arguing that the Court's pronouncement is a very welcome first step towards marriage equality at a cross-border level in the EU. At the same time, the case poses a number of important questions, which will only be answered in case law and practice in the years to come.

Divergence of European Union and Strasbourg Standards on Defence Rights in Criminal Proceedings? Ibrahim and the others v. the uk (13th of September 2016)

2017 ◽  
Vol 25 (4) ◽  
pp. 327-346 ◽  
Author(s):  
Anneli Soo
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Criminal Proceedings ◽  
Case File ◽  
Court Of Justice ◽  
European Court ◽  
The Supreme Court ◽  
The Uk ◽  
The Right ◽  
Right Of Access

In Directive 2013/48/eu the standard for remedies applicable in cases the right of access to a lawyer has been violated was built on the European Court of Human Right’s judgment Salduz v. Turkey (27 November 2008). Shortly before the deadline to implement Directive 2013/48/eu, the Strasbourg Court handed down its judgment on Ibrahim and the others v. the uk (13 September 2016) significantly lowering this standard. In its ruling on 4 May 2016, the Supreme Court of Estonia interpreted the right of access to a case file upon arrest in conjunction with the Strasbourg case law, without considering that eu law might raise the standard. This article argues that the question whether to follow the Salduz- or Ibrahim-standard serves as a perfect opportunity for the European Court of Justice to clearly articulate that Strasbourg standards on defence rights form just a part of the foundation that eu standards consist of.

scholarly journals The Federal Constitutional Court Decisions: „The Right to be Forgotten I” and „The Right to be Forgotten II” – The Expectation of Increased Cooperation with the Concurrent Need to Maintain Independence

2020 ◽  
pp. 69-88
Author(s):  
Magdalena Jaś-Nowopolska ◽  
Daniel Mengeler
Keyword(s):  
Fundamental Rights ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Eu Law ◽  
Court Of Justice ◽  
Right To Be Forgotten ◽  
European Court ◽  
Federal Constitutional ◽  
The Right ◽  
Eu Fundamental Rights

The article discusses the decisions “Right to be forgotten I” and “Right to be forgotten II” of 6 November 2019 by the Federal Constitutional Court, which redefine the relationship of cooperation between the Federal Constitutional Court and the European Court of Justice in the area of fundamental rights. The Court has decided for the first time that where EU fundamental rights take precedence over German fundamental rights, the Court itself can directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. In the first part, the article presents the previous system, including the precedence of application of EU law and its exceptions (ultra-vires review; identity review), as well as the controversial question of the interpretation of Article 51 (1) of the Charter of Fundamental Rights, which is decisive for the applicability of the fundamental rights under the Charter. The focus is on the constitutional background of the German Basic Law for the protection of fundamental rights in the European multi-level system. Against this background, the second part of the article presents the facts and reasons for the decisions “Right to be forgotten I” and “Right to be forgotten II”. This is followed by an analysis of the consequences of these decisions for the protection of fundamental rights and cooperation between the European Court of Justice and the Federal Constitutional Court. In particular, the way in which fundamental EU rights can now be enforced before the Federal Constitutional Court is described in greater detail. The concluding part provides an overview of the open questions, risks and opportunities of this approach. Here the article illustrates the significant impact of the two decisions on dogmatic and procedural matters.

Der Status im europäischen Asylrecht

2020 ◽  
Keyword(s):  
Legal Status ◽  
Case Law ◽  
Best Interests ◽  
Eu Law ◽  
Eu Member States ◽  
Court Of Justice ◽  
European Court ◽  
Asylum Law ◽  
National Norms ◽  
The One

Despite the constitutionalisation of asylum law by EU law over the last two decades, proceedings based on national norms often still occur before asylum authorities and the courts of EU Member States. This book examines the divergences in and tensions between the constitutionalisation of asylum law by EU law on the one hand and how national asylum laws operate on the other. The national context in this book is primarily Austria’s asylum law. As asylum encapsulates various status categories that determine the rights and duties of a person in most areas of life, this book analyses asylum law from the perspective of an individual’s legal status. The contributions it contains examine, among other issues, the case law of the European Court of Justice on persecution on the grounds of sexual orientation, exclusion from protection status, the uniform status of protection, the principle of the best interests of the child in EU law, as well as temporary residential status in light of the principle of human dignity. With contributions by Petra Sußner, Constantin Hruschka, Ronald Frühwirth, Florian Immervoll, Ulrike Brandl, Stefan Salomon, Florian Hasel, Kevin Hinterberger, Stephan Klammer, Lioba Kasper, Martina Berger, Simone Tanzer

The right to appeal to the European Court of Human Rights

2020 ◽  
Author(s):  
Yuliya Samovich
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Regulation ◽  
The European Union ◽  
Educational Organizations ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Procedure ◽  
The Right ◽  
Judicial Protection

The manual is devoted to making individual complaints to the European Court of human rights: peculiarities of realization of the right to appeal, conditions of admissibility and the judicial procedure of the European Court of Human Rights. The author analyses some “autonomous concepts” used in the court's case law and touches upon the possibility of limiting the right to judicial protection. The article deals with the formation and development of the individual's rights to international judicial protection, as well as the protection of human rights in universal quasi-judicial international bodies and regional judicial institutions of the European Union and the Organization of American States. This publication includes a material containing an analysis of recent changes in the legal regulation of the Institute of individual complaints. The manual is recommended for students of educational organizations of higher education, studying in the areas of bachelor's and master's degree “Jurisprudence”.

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