scholarly journals (Just) Give Me A Reason …

2018 ◽  
Vol 27 ◽  
pp. 12-35
Author(s):  
Julia Laffranque
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Supreme Court ◽  
European Convention ◽  
Eu Law ◽  
European Union Law ◽  
National Courts ◽  
The Supreme Court ◽  
Summary Judgment

Judicial systems often wrestle with whether to sacrifice always presenting thorough judicial reasoning for the sake of an effective leave-to-appeal system. The paper outlines issues of reference to the Luxembourg Court, particularly with regard to Estonian circumstances in light of the ECtHR judgment in Baydar v. the Netherlands. The interplay between EU law and the European Convention on Human Rights in this regard is considered first, along with the importance of giving reasons, courts’ authority, the different roles of domestic and European courts, the duty of referring questions to the CJEU and exemption, consequences of non-referral in EU law, the Strasbourg Court’s role in dialogue between national courts and the CJEU, etc. Examined next are such matters as influences on preliminary references in European Union law, summary reasoning and limits to the reasoning duty (especially with regard to the Ullens de Schooten case of the ECtHR), associated division of competencies between the Strasbourg and Luxembourg courts, and finally the reasoning of the ECtHR itself as good or bad example. The author then considers the Supreme Court of Estonia’s leave-to-appeal system and the national courts’ practice in relation to Baydar, concluding that, while reasoned judgments are important and a right, no right exists for the applicant’s case to be referred by a domestic judge to the Luxembourg Court, though it is vital that summary judgment not be arbitrary / manifestly unreasonable; that Estonian courts have made reasonable use of the preliminary reference procedure before the Luxembourg Court thus far; and that they should articulate well the reasoning for referral/non-referral for litigants. The author proposes that the Estonian Supreme Court explain, exceptionally in one refusal of leave to appeal (cf. the Netherlands), that the general requirements for granting leave to appeal cover also the situation of preliminary questions to the CJEU and C.I.L.F.I.T. arguments of the CJEU. Above all, neither the interplay between EU law and the European Convention on Human Rights nor the role of national courts finding their way in complex legal surroundings should be neglected. 

scholarly journals State of the Netherlands v. Urgenda Foundation

2020 ◽  
Vol 114 (4) ◽  
pp. 729-735
Author(s):  
Maiko Meguro
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
The Netherlands ◽  
Supreme Court ◽  
Climate Change Policy ◽  
Ghg Emissions ◽  
European Convention ◽  
Emissions Reduction ◽  
Change Policy ◽  
The Supreme Court

The judgment in State of the Netherlands v. Urgenda Foundation marks one of the first successful challenges to climate change policy based on a human rights treaty. In this case, the Dutch Supreme Court upheld the lower court's opinion that the Netherlands has a positive obligation under the European Convention on Human Rights (ECHR) to take reasonable and suitable measures for the prevention of climate change. Although the Supreme Court recognized that climate change is a consequence of collective human activities that cannot be solved by one state on its own, it held that the Netherlands is individually responsible for failing to do its part to counter the danger of climate change, which, as the Court affirmed, inhibits enjoyment of ECHR rights. In reaching that conclusion, the Supreme Court determined the exact level of greenhouse gas (GHG) emissions reduction that the Netherlands is required to meet to comply with its ECHR obligation, specifically, a 25 percent reduction compared to its 1990 level by the end of 2020.

The State of the Netherlands v. Urgenda (Neth. Sup. Ct.)

2020 ◽  
Vol 59 (5) ◽  
pp. 811-848
Author(s):  
André Nollkaemper ◽  
Laura Burgers
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
The Netherlands ◽  
Supreme Court ◽  
International Law ◽  
Greenhouse Gas ◽  
Ghg Emissions ◽  
The State ◽  
European Convention ◽  
The Supreme Court

On December 20, 2019, the Supreme Court of the Netherlands published its judgment in The State of the Netherlands v. Urgenda. The judgment is largely a discussion of questions of Dutch law, but contains several conclusions that are relevant from an international law perspective. In particular, the Court held that on the basis of the European Convention on Human Rights (ECHR), the Netherlands has a positive obligation to take measures for the prevention of climate change and that it was required to reduce its greenhouse gas (GHG) emissions by at least 25 percent by the end of 2020, compared with 1990 levels.

Prisoner Disenfranchisement in the United Kingdom and the Scope of EU Law: United Kingdom Supreme Court

2014 ◽  
Vol 10 (1) ◽  
pp. 126-142
Author(s):  
Anja Lansbergen
Keyword(s):  
United Kingdom ◽  
Supreme Court ◽  
Fundamental Rights ◽  
European Convention ◽  
Alternative Mechanism ◽  
Eu Law ◽  
European Union Law ◽  
The United Kingdom ◽  
The Supreme Court ◽  
Right To Vote

On 16 October 2013 the United Kingdom Supreme Court delivered judgment in two conjoined cases that considered the legality of prisoner disenfranchisement. The Court considered both the compatibility of the disenfranchising provisions with the European Convention on Human Rights (‘the Convention’), and whether those provisions breached a right to vote acquired by the appellants under European Union law. In a unanimous judgment the Supreme Court dismissed the appeals, acknowledging the incompatibility of the relevant legislation with Article 3 of Protocol No. 1 of the Convention but declining to issue a declaration of incompatibility. The Supreme Court further held that EU law does not confer upon EU Citizens a substantive right to vote in European Parliamentary elections.The cases are significant on a number of levels. First, the nuanced arguments advanced before the Court tested the jurisdictional scope of EU law and its capacity to confer rights upon EU Citizens in the absence of cross-border movement. The claims thus held the potential to widen the jurisdiction of EU law along the trajectory outlined by such ECJ case-law as Ruiz Zambrano and Fransson. Secondly, those arguments probed the extent to which the European Charter of Fundamental Rights (‘the Charter’) imports Strasbourg jurisprudence into EU law and thus creates an alternative mechanism through which to enforce Convention rights. Finally, the decision evidences the constitutional tensions that emanate from discordant interpretations of fundamental rights by national and supranational courts from discordant interpretations of fundamental rights by national and supranational courts.

The UK courts and EU law post-Brexit

2021 ◽  
Vol 20 (3) ◽  
pp. Christopher-Vajda
Author(s):  
Christopher Vajda
Keyword(s):  
Supreme Court ◽  
Transition Period ◽  
Case Law ◽  
Eu Law ◽  
National Courts ◽  
The Supreme Court ◽  
The Future ◽  
The Status ◽  
The Uk ◽  
Court Of Appeal

Following the expiry on 31 December 2020 of the ‘transition period’ under the UK/EU Withdrawal Agreement, the relationship between UK and EU law had changed. Whilst much EU legislation at that date will continue to apply in UK law as ‘retained EU law’ and judgments of the EU courts handed down before that date will remain binding on UK courts as ‘retained EU case law’, the Court of Appeal and Supreme Court can depart from that case law. Whilst EU court judgments handed down after that date are not binding on UK courts, they may be taken into account. This article considers both the status of EU retained case law and when the Supreme Court and Court of Appeal may depart from it, and the future of EU law that is not ‘retained EU case law’ and how judgments of the European Courts and national courts of its Member States may influence UK judges in the future.

scholarly journals Refl ections on the Principle of Equal Treatment in EU Law and the Jurisprudence of the Court of Justice of the European Union and the European Convention on Human Rights

2020 ◽  
Vol 9 (1) ◽  
pp. 5-23
Author(s):  
Marija Daka
Keyword(s):  
European Union ◽  
Human Rights ◽  
Equal Treatment ◽  
European Convention ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Complex Approach

The paper presents some of the most relevant aspects of European nondiscrimination law established th rough European Union law and the European Convention on Human Rights, looking also at the evolution of the norms and milestones of case-law on equal treatment within the two systems. The paper gives an overview of the non-discrimination concept as interpreted by the Court of Justice of the European Union and by the European Court of Human Rights. We examine the similar elements but also give insight into conceptual differences between the two human rights regimes when dealing with equal treatment. The differences mainly stem from the more complex approach taken by EU law although, based on analysed norms, cases, and provisions, the aspects of equal treatment in EU law are largely consistent with the practice of the ECtHR. Lastly, the paper briefl y places the European non-discrimination law within the multi-layered human rights system, giving some food for thought for the future potential this concept brings.

When Are National Courts Obliged to Refer Questions?

2021 ◽  
pp. 201-248
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
Human Rights ◽  
National Court ◽  
European Convention ◽  
Preliminary Ruling ◽  
Eu Law ◽  
Case File ◽  
National Courts ◽  
Legal Consequences

Chapter 6 defines when a national court must make a preliminary reference. In principle, a national court whose decision cannot be appealed against (a court of last instance) is obligated to make a reference for a preliminary ruling if the main proceedings give rise to a question about the interpretation or validity of EU law. The chapter analyses when a national court is regarded as being a court of last instance and it analyses when a court of last instance is exempt from the obligation to make a reference. Particular focus is upon the acte éclairé and acte clair doctrines. Chapter 6 also examines when national courts, other than those of last instance, have a duty to make a reference. The chapter also considers the legal consequences of a national court failing to comply with its obligation to make a reference; in this respect it considers the question of how a failure to make a preliminary reference may affect the validity of a national judgment, the duty to reopen the case file, the obligation to pay damages, the possibility that the Commission will initiate infringement proceedings, and the possibility that such failure will constitute an infringement of the European Convention on Human Rights.

14. Land Law and Human Rights

Land Law ◽  
2020 ◽  
pp. 593-629
Author(s):  
Chris Bevan
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
European Convention ◽  
Land Law ◽  
European Court ◽  
The Supreme Court ◽  
Rights Discourse ◽  
Human Rights Discourse ◽  
The Relationship

This chapter examines the relationship between land law and human rights. From a distinctly land law perspective, the human rights discourse has given rise to much debate, which continues to fuel much academic commentary including recent examination of the availability of horizontal effect in McDonald v McDonald in the Supreme Court and in the European Court of Human Rights. The chapter focuses chiefly on the two most pertinent provisions of the European Convention on Human Rights (ECHR) for land law; namely Art. 1 of the First Protocol and Art. 8 and reflects on the, at times, difficult relationship between land law and human rights.

scholarly journals Uloga institucije ombudsmena i sudova u sudskim postupcima povodom slučajeva diskriminacije u Bosni i Hercegovini

2019 ◽  
Vol 56 (3) ◽  
pp. 667-683
Author(s):  
Mirza Čaušević
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Bosnia And Herzegovina ◽  
General Information ◽  
Direct Discrimination ◽  
The Supreme Court ◽  
The Law ◽  
Court Proceedings ◽  
The Individual

When reading the article’s title, it is important to emphasize the role and importance of the Institution of the Ombudsman for Human Rights of Bosnia and Herzegovina, the most important national institution for the protection of human rights and fundamental freedoms. Consequently, according to the logic of thinking, it can be clearly concluded that the most important segment of action, above mentioned national institution, is to prevent or eliminate all forms of indirect and direct discrimination. Accordingly, the author decided, in addition to introductory and concluding considerations, to divide the article into four (4) parts. The first part of the article entitled “Theoretical Determination of Discrimination” provides general information on the concept, different forms and types of discrimination in accordance with the Law on Prohibition of Discrimination in Bosnia and Herzegovina. Unlike the first, in the second part of the article “The Role of the Ombudsman in the Probation of Discrimination Proceedings”, the Ombudsman aims to present the legal position of the ombudsman in court proceedings, with the mandatory indication of the conditions for initiating the proceedings on his own behalf, representing the individual and intervening in the ongoing proceedings. Through practical examples, the author seeks to emphasize the importance, role and importance of the ombudsman in court proceedings. Subsequently, in the third part of the “Role of Courts in the Probation of Discrimination Proceedings”, the author concentrates that, by using the Law on Prohibition of Discrimination, he presents court judgments that discriminate the education system of the Central Bosnia and Herzegovina Canton (non) discriminatory on the basis of the existing segregation in so called. “Two schools under one roof”. Thus, this section primarily analyzes the rejection of the aforementioned claims. Finally, in the fourth (working) section entitled “The Probation of Discrimination Proceeding before the Supreme Court of the Federation of Bosnia and Herzegovina”, the author presents positive and negative examples in the work of the Supreme Court of FBiH, and above all clarifies the process of proving discrimination before this court instance. The aim of this paper is to investigate the legal background of the Institution of the Ombudsman for Human Rights in Bosnia and Herzegovina, as well as judicial instances from the aspect of domestic (national) law, while, on the other hand, special attention is devoted to the actions of the FBiH Supreme Court in cases of discrimination.

scholarly journals ABORTION IN NORTHERN IRELAND AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS: REFLECTIONS FROM THE UK SUPREME COURT

2019 ◽  
Vol 68 (2) ◽  
pp. 477-494
Author(s):  
Bríd Ní Ghráinne ◽  
Aisling McMahon
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Northern Ireland ◽  
Supreme Court ◽  
International Law ◽  
European Convention ◽  
The United Kingdom ◽  
The Supreme Court ◽  
Uk Supreme Court ◽  
The Uk

AbstractOn 7 June 2018, the Supreme Court of the United Kingdom (UKSCt) issued its decision on, inter alia, whether Northern Ireland's near-total abortion ban was compatible with the European Convention of Human Rights (ECHR). This article critically assesses the UKSC's treatment of international law in this case. It argues that the UKSCt was justified in finding that Northern Ireland's ban on abortion in cases of rape, incest, and FFA was a violation of Article 8, but that the majority erred in its assessment of Article 3 ECHR and of the relevance of international law more generally.

1. An introduction to the criminal law

2021 ◽  
pp. 3-25
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Common Law ◽  
European Convention ◽  
Eu Law ◽  
The Public ◽  
Moral Wrong ◽  
Public Nuisance ◽  
Harm To Others

It is neither easy to define crime nor identify the aims of criminal law but some characteristics may be universal to every crime, including that it involves public wrongs and moral wrongs. ‘Public wrongs’ reflect the important role of the public in punishing crimes. A crime incorporating a moral wrong implies that a ‘wrong’ is done or harm to others is involved but experience suggests that morality and criminal law are not coextensive. The chapter introduces students to thinking about criminalization and the need to guard against overcriminalization. It also examines the principal sources of criminal law: common law, statute, EU law, international law and the European Convention on Human Rights (ECHR). Problematically, important and serious offences and most defences in English law derive from common law rather than statute, and some offences—from public nuisance to gross negligence manslaughter—have been challenged recently on grounds of certainty and retrospectivity.

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