scholarly journals Criteria for Assessing the Violation of the Right to a Trial Within a Reasonable Time

2021 ◽  
Vol 11 (11) ◽  
Author(s):  
Miodrag Simović ◽  
Marina Simović
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Criminal Charges ◽  
The Right ◽  
Article 5

The well-known sentence in English Justice delayed is justice denied confirms historical awareness of the value of a speedy court decision. The right to a fair trial within a reasonable time applies to both civil and criminal proceedings. In a criminal trial, the issue of adjournment may also be regulated under Article 5 paragraph 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms when a person is detained. The rationale for the principle, in criminal proceedings, is “based on the need to allow the accused not to remain for too long in a state of uncertainty as to the outcome of criminal charges against him” (Kart v. Turkey, European Court of Human Rights, 2009). Furthermore, the variability of criminal proceedings that take too long - generally damages the reputation of the alleged offender. The European Court of Human Rights explained that “the reason for the verdict in so many lenghty proceedings is that certain contracting parties have not complied with the ‘reasonable time’ requirement under Article 6 paragraph 1 of the European Convention and have not prescribed a domestic remedy for this type of appeal” (Scordino v. Italy (no. 1) [GC], 2006-V).

scholarly journals The value of the ECtHR practice for making procedural decisions when conducting covert investigative (search) actions

2020 ◽  
pp. 158-169
Author(s):  
Olena Bilichak
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
European Convention ◽  
Scientific Article ◽  
Criminal Proceedings ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right ◽  
Procedural Decisions

Based on the analysis of the provisions of domestic law, the practice of pre-trial investigation and court, the scientific article develops recommendations on how to take into account the decisions of the European Court of Human Rights in covert investigative (search) actions and use the results obtained in evidence. It is established that the current legislation provides for the possibility of conducting pre-trial investigation of serious and especially serious crimes of covert investigative (investigative) actions, which in most cases is related to intrusion into privacy and correspondence of a person protected by Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, knowledge of the content and consideration of the case law of the ECtHR in making procedural decisions on the conduct of pre-trial investigation by certain NSDCs and the use of the results obtained by them in court evidence is a strong guarantee of the legality of court decisions. When making certain procedural decisions regarding the materials of covert investigative (investigative) actions at the pre-trial and court stages of criminal proceedings, it should be taken into account that the right to secrecy of correspondence guaranteed by Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ensures the inviolability of all forms of communication between persons, both by means of communication and without them. All covert investigative (search) actions should be carried out only in accordance with the law. Audio and video materials submitted by private individuals and produced «with the help» of law enforcement officers cannot be considered admissible evidence. Carrying out NSRD to control the commission of a crime (Article 271 of the CPC of Ukraine) should exclude the possibility of provocation by the pre-trial investigation authorities. If their intelligence staff was involved in such a special operation, in the initial stages of its conduct the conduct of the pre-trial investigation body should be exclusively passive and limited to observation. In any case, the evidence in the criminal proceedings in which the relevant special operation took place should not be based only on its materials, and the burden of proof rests with the prosecution. Key words: criminal proceedings, European Court of Human Rights, covert investigative actions.

Does Self-isolation Violate the Right to Liberty? An Analysis of the European Court of Human Rights’ Practice in Light of the Ukrainian Experience

2020 ◽  
Vol 27 (4) ◽  
pp. 368-385
Author(s):  
Yana Litins’ka ◽  
Oleksandra Karpenko
Keyword(s):  
Human Rights ◽  
Stress Test ◽  
European Convention ◽  
Legal Systems ◽  
Human Rights Practice ◽  
Rapid Action ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

Abstract COVID-19 became a stress-test for many legal systems because it required that a balance be found between rapid action to prevent the spread of the disease, and continued respect for human rights. Many states in Europe, including Ukraine, chose to enforce an obligation to self-isolate. In this article we review what the obligation to self-isolate entails in the case of Ukraine. We also analyse whether such an obligation should be viewed as a deprivation or a mere restriction of liberty, and if it is permissible under the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The European Court of Human Rights: Sabeh El Leil v. France

2012 ◽  
Vol 51 (1) ◽  
pp. 1-16
Author(s):  
Gilles Cuniberti
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Sovereign Immunity ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right ◽  
Wrongful Dismissal

In Sabeh el Leil v. France, the European Court of Human Rights (‘‘ECtHR’’ or ‘‘the Court’’) ruled for the second time that a contracting state had violated the right to a fair trial afforded by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘‘Convention’’) by denying access to its courts to an embassy employee suing for wrongful dismissal on the grounds that the employer enjoyed sovereign immunity. The ECtHR had first ruled so a year earlier in Cudak v. Lithuania, where the plaintiff was also an embassy employee.

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.

scholarly journals The development of protections for the right to marry guaranteed by Article 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms

2021 ◽  
Vol 93 (2) ◽  
pp. 510-525
Author(s):  
Jovana Vojvodić
Keyword(s):  
Human Rights ◽  
21St Century ◽  
European Convention ◽  
Marriage And Family ◽  
International Understanding ◽  
European Court ◽  
Fundamental Freedoms ◽  
Liberal Attitude ◽  
Protection Of Human Rights ◽  
The Right

Starting from the 21st century, the European Court of Human Rights has changed the approach regarding the interpretation of the right to marry protected under Article 12 of the European Convention on Human Rights. The new liberal attitude towards the content of this right has opened up opportunities for new categories of persons to enter into marriage and start a family. The question arises whether the European Court of Human Rights will continue with this trend of interpretation and what consequences that could cause for the international understanding of marriage and family.

scholarly journals Od predmeta Mccann do predmeta F.J.M.

2020 ◽  
Vol 41 (1) ◽  
pp. 113-132
Author(s):  
Gabrijela Mihelčić ◽  
Maša Marochini Zrinski ◽  
Renata Šantek
Keyword(s):  
Human Rights ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Proportionality Test ◽  
The Right ◽  
Analyse Case

The authors discuss and analyse case law of the European Court of Human Rights regarding the right to respect for home under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and with respect the issue of proportionality. In the paper, the proportionality category was viewed as a criterion for securing protection and as a material precondition for deciding whether the State party's interference with the right to respect for home was proportionate. The cases in which the applicant's eviction occurred after national proceedings for the enforcement of mortgages were addressed. In this context, the genesis of the proportionality category was analysed, from the cases where the Court found it necessary to examine the proportionality to the cases where the Court did not consider the proportionality test necessary.

scholarly journals RESTRICTION OF THE RIGHT TO THE LIBERTY AND SECURITY OF MINORS ACCORDING TO THE INTERNATIONAL AND NATIONAL LAW (BY THE EXAMPLE OF THE RUSSIAN FEDERATION)

2019 ◽  
Vol 8 (6) ◽  
Author(s):  
Gulnara R. Shaihutdinova ◽  
Gulshat Z. Shamilova
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Offense ◽  
European Court ◽  
Personal Rights ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Russian Federation ◽  
The Right ◽  
Article 5

The article is about the main points of the minors arrest and detention who are suspected in a criminal offense under paragraph 5 (d) of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950; the legality of the minors arrest and detention, rights and freedoms. The special attention is paid to the study of the pointed legal positions of the European Court of Human Rights. The importance of the study is connected with the fact that the right to the liberty and security is one of the most important rights included in the list of internationally recognized human rights and freedoms. From the point of the generally accepted classification in the law theory and Russian constitutional law, as well as in the theory of international law, the analysing law belongs to the civil (personal) rights. In this regard, the right to the liberty and security can be characterized as a law that has a natural character and it is closely connected with the nature of man.Detention or arrest is the most severe measure; it is applied only on the basis of a court decision which is based only on the results of consideration which is accepted as a result of the court’s learning of the relevant petition submitted by an investigator or inquiry officer

scholarly journals Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the right to privacy in the Constitution of Montenegro

2020 ◽  
pp. 101-114
Author(s):  
Ivan Vukčević
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Critical Approach ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right ◽  
Different Content

The subject of this paper is a comparative analysis of the right to respect for private and family life in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the right to privacy in the Constitution of Montenegro. To this end, the paper presents relevant provisions in these documents along with a critical approach to their (in) compliance, both in the determination of specific rights and in cases of their restriction. The paper seeks to offer an answer to the question on whether this right is adequately implemented in the Constitution of Montenegro, as well as whether its different content, analyzed on the concrete example, requires direct application of international law. The author also seeks to provide information on whether insufficient harmonization of the provisions of international and national law in this area may affect more complete protection of this right. To this end, the paper analyzes one of the cases in which the European Court of Human Rights ruled on the violation of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in relation to Montenegro. Starting from the presented subject matter, at the end of the paper, appropriate conclusions are drawn about possible directions of improvement of existing solutions and practices in which they are realized. Author primarily used normative and comparative law method together with the case-law analysis.

scholarly journals Correlation of legal regulations on evidence and proof procedures with article 6 of the european convention on the protection of human rights and fundamental freedoms

2021 ◽  
Author(s):  
Angela Cuciurcă ◽  
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Legal Regulations ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Evidence And Proof ◽  
The Right ◽  
Criminal Matters

Evidence and evidence are of particular importance in criminal proceedings, as, together with evidence, they are closely linked to the realization of the principle of finding out the truth, as well as to the fact that in most criminal cases there are problems related to evidence and means of proof. The legality of the evidence depends on the issuance of a decision to convict or acquit the person in a criminal trial. Legal regulations are closely correlated with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular Article 6, the right to a fair trial. In this context, a criterion of applicability of this article in criminal matters lies in the nature of the procedure; the text refers to the right to be tried by a court, in the sense of court, which must decide on the merits of any accusation in this matter criminal law, and the merits of an accusation are based on conclusive, pertinent and useful evidence administered by means of evidence and evidence procedures provided by law.

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.

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