scholarly journals Public Morality as a Legitimate Aim to Limit Rights and Freedoms in the National and International Legal Order

2019 ◽  
pp. 10-20
Author(s):  
Anna Młynarska-Sobaczewska ◽  
Katarzyna Kubuj ◽  
Aleksandra Mężykowska
Keyword(s):  
Human Rights ◽  
Moral Judgments ◽  
Moral Issues ◽  
National Courts ◽  
European Court ◽  
Starting Point ◽  
International Legal Order ◽  
Protection Of Human Rights ◽  
Human Rights Standards ◽  
The Impact

Domestic legislation and international instruments designed for the protection of human rights provide for general clauses allowing limitations of rights and freedoms, e.g. public morals. A preliminary analysis of the case-law leads to the observation that both national courts and the European Court of Human Rights, when dealing with cases concerning sensitive moral issues, introduce varied argumentation methods allowing them to avoid making direct moral judgments and relying on the legitimate aim of protecting morality. In the article the Authors analyse selected judicial rulings in which moral issues may have played an important role. The scrutiny is done in order to identify and briefly discuss some examples of ways of argumentation used in the area under discussion by domestic and international courts. The identification of the courts’ methods of reasoning enables us in turn to make a preliminary assessment of the real role that the morality plays in the interpretation of human rights standards. It also constitutes a starting point for further consideration of the impact of ideological and cultural connotations on moral judgments, and on the establishment of a common moral standard to be applied in cases in which restriction on human rights and freedoms are considered.

scholarly journals Problematic aspects of the application of ECHR practice by the courts of Ukraine

2021 ◽  
pp. 19-23
Author(s):  
Oleksandr STOROZHENKO ◽  
Oksana PROHOROVA
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Original Text ◽  
Statistical Research ◽  
National Courts ◽  
Human Rights Practice ◽  
European Court ◽  
Protection Of Human Rights ◽  
Human Rights Standards

Introduction. Ukraine signed Convention for the Protection of Human Rights and Fundamental Freedoms many years ago to provide effective protection of fundamental rights for every human that stands out on its' territory. This document is interpreted by the European Court of Human Rights. Practice of this Court must be used by national courts of Ukraine to match international human rights' standards. However, according to results of statistical research, application of that legal positions by national judges aren’t correct enough. The purpose of the paper is to identify and analyze problematic issues of application of the case law of the European Court of Human Rights by national courts of Ukraine. The authors also wanted to investigate the national practice of using the ECHR' legal positions and to provide recommendations to address shortcomings in such application. Results. The paper considers the issue of application of the case law of the European Court of Human Rights by the national courts of Ukraine. The legal nature of ECHR decisions' is studied. Authors are stick to the idea that judgments of ECHR aren’t classic precedent. There are authors' opinions about the problem of applying the practice of the European Court of Human Rights, which has no official translation. They think that judges need to be taught professional English and French. So that they will be able to understand original text of judgments correct. There is also a thought about necessity of creating special database with Ukrainian translation of some judgments. Authors have also revealed problematic aspects of the application such as: erroneous, manipulative, formal references. There are some decisions of Ukrainian courts that have been analyzed by the authors. Erroneous references to decisions of the European Court of Human Rights in such cases have been determined. Authors stated that the reason of those defects is insufficient awareness of judges about the specifics of application legal positions of ECHR. Conclusion. According to the results of the work, the importance of education and training of future judges is stated. In addition, authors emphasized on necessity of further observations of this question.

Der Einfluss der Entscheidungen des Europäischen Gerichtshofes für Menschenrechte auf Normbildende und Rechtssprechungspraxis

2019 ◽  
pp. 104
Author(s):  
MILENA SLAVEYKOVA-RUKOVA
Keyword(s):  
Human Rights ◽  
The State ◽  
National Courts ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Law ◽  
Legislative Changes ◽  
Object Of Study ◽  
The Impact

The European Court of Human Rights (ECtHR) plays a crucial role in the protection of human rights and fundamental freedoms of individuals. The goal of this Court is to resolve complaints in which these individuals allege that the State of their citizenship fails to perform the obligations arising from the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (the Convention). The ECtHR assesses the reasonableness of the term for “final” resolution of a legal conflict, and includes therein the time needed to implement the judgment. Currently, excessively long periods needed to implement the judgments which award payments of certain amounts to plaintiffs at the expense of budgetary funds is still a sensitive issue for Bulgaria as well as for Ukraine. As a respective confirmation of such a situation for Ukraine, the author mentions ECtHR’s judgment passed in 2017 in the case of Burmych and Others v. Ukraine, which actually determined the fate of 12,148 applications filed to the Court by Ukrainian citizens who complained of the violation of their right to a fair trial because of the failure to implement final judgments passed by national courts. The purpose of the article is to determine the impact of ECtHR’s judgments on the rulemaking and practice of national courts. The experience of Bulgaria is taken as the object of study. The author analyzes two pilot ECtHR judgments which found that Bulgarian courts breached the requirements of Art. 6, § 1 of the Convention. After these judgments became final, the Bulgarian Parliament amended the laws “On the Judiciary” and “On the Liability of the State and Communities for Damage Caused” to incorporate the provisions which are aimed at avoiding any future violations similar to those found by ECtHR. The author studies these legislative changes and the practice of their application with the aim of illustrating that ECtHR judgments have an efficient impact on the improvement of national legal rules. In summary, the author maintains that the mechanisms of compensation described in the article – the administrative one (after amendments to the Law “On the Judiciary”) and the judicial one (after amendments to the Law “On Liability of the State and Communities for Damage Caused”) precisely meet the ECHR criteria.

scholarly journals Judicial dialogue in the light of Protocol no. 16 to the European convention on human rights

2019 ◽  
Vol 40 (2) ◽  
pp. 899-925
Author(s):  
Bruna Žuber ◽  
Špela Lovšin
Keyword(s):  
Human Rights ◽  
Detailed Analysis ◽  
National Level ◽  
European Convention ◽  
Advisory Opinion ◽  
National Courts ◽  
European Court ◽  
Legal Nature ◽  
Human Rights Standards ◽  
The Impact

The authors discuss legal nature of the Protocol No. 16 to the European Convention on Human Rights (ECHR) which entered into force on 1 August 2018. With the aim of improving the judicial dialogue between European Court of Human Rights (ECtHR) and highest national courts, the Protocol No. 16 introduced the advisory opinion procedure at the ECtHR level. A detailed analysis of the impact of advisory opinion procedure on the judicial dialogue is included and is further supported by the reviews of cases at the ECtHR against Slovenia, Belgium and Italy, which illustrate how a possibility to request an advisory opinion could have prevented finding of a human right’s violation on the Strasbourg level and raised the effectiveness of human rights standards. The authors believe the Protocol No. 16 has brought a lot of potential for improvement of the judicial dialogue, which could lead to better understanding of ECHR standards, as interpreted by the ECtHR, and therefore prevent human rights violations already on a national level.

Transnational constitutional aspects of the European Court of Human Rights

2021 ◽  
Vol 10 (1) ◽  
pp. 151-174
Author(s):  
GEIR ULFSTEIN
Keyword(s):  
Human Rights ◽  
Direct Effect ◽  
Legal Pluralism ◽  
Legal Order ◽  
Not Given ◽  
National Courts ◽  
European Court ◽  
International Court ◽  
International Legal Order

AbstractThe European Court of Human Rights (ECtHR) is an international court operating in the international legal order. Its judgments are not given direct effect in national law. In this sense we have a system of legal pluralism between international and national law. But the ECtHR has constitutional effects in national law through the weight placed on the Court’s practice by national courts. Therefore, constitutional principles are applicable in the interaction between the ECtHR and national courts. This article discusses the transnational constitutional aspects of the Court, and how this should guide the roles of, respectively, the ECtHR and national courts.

scholarly journals The Legal Approach to the Provocation of Bribe as a Variety of Provocation of Crime in Case-law of the European Court of Human Rights

2021 ◽  
Vol 6 ◽  
pp. 18-27
Author(s):  
Mykhaylo Buromenskiy ◽  
Vitalii Gutnyk
Keyword(s):  
Human Rights ◽  
National Court ◽  
Criminal Activity ◽  
Case Law ◽  
Unique Type ◽  
Covert Action ◽  
National Courts ◽  
European Court ◽  
Protection Of Human Rights ◽  
Degree Of Participation

The article gives a legal assessment of “provocation of bribe” as a kind of “provocation of crime”. The authors examine the relevant case-law of the European Court of Human Rights (ECHR) and find that the Court does not consider “provocation of bribe” as a provocation of a unique type of crime, but summarizes the situation of “provocation of crime”, including corruption crimes (including, giving a bribe, offering a bribe, receiving a bribe).The article pays special attention to the fact that the ECHR considers complaints of provocation of bribery in the context of the rights provided for in of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court’s position is that the existence of a proven provocation of a crime deprives a person of a fair trial from the very beginning of the proceedings. The article analyzes the signs of incitement to crime, which are an integral part of provocation of crime.The article emphasizes that the ECHR, when considering relevant cases, refers exclusively to the procedural aspect of bribery provocation, assessing the extent to which the bribery provocation affected the quality of the evidence obtained as a result. In case of considering relevant cases in the national court, the ECHR places the positive obligation to prove the absence of incitement (as a key sign of provocation of a crime) primarily on the prosecution.Based on the analysis of the case-law of the European Court of Human Rights, the authors draw attention to the fact that covert investigative and operational actions must be carried out in a passive way so as not to create any pressure on a person to commit a crime.The case-law of the ECHR also provides an opportunity to determine the limits of national courts’ examination of situations in which a defendant claims to be a victim of a “provocation of crime”. The national court must find out the following: 1) motives of decision-making on a covert action; 2) the degree of participation of the law enforcement agency in the commission of the crime; 3) the nature of any incitement or pressure experienced by the applicant; 4) reliable information about the defendant’s participation in such criminal activity.

scholarly journals Torture as a ground for inadmissibility of evidence

2021 ◽  
pp. 28-31
Author(s):  
Maryna HRYTSENKO
Keyword(s):  
Human Rights ◽  
Third Parties ◽  
The State ◽  
Evidence Based ◽  
Legal Systems ◽  
Criminal Proceedings ◽  
National Courts ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The European Court of Human Rights, which focuses on the Convention for the Protection of Human Rights and Fundamental Freedoms, points to the importance of the prohibition of torture. The Court has formed its position based on the importance of Article 3 of the Convention and, consequently, the inadmissibility of the evidence obtained in violation of that article by the prosecution. This paper analyzes the practice of the European Court of Human Rights on the implementation of evidence-based activities in national legal systems, and in particular examines the requirements of the Court on the admissibility of evidence-based exercise and activity obtained in the course of work results. The paper demonstrates the ECHR's practice on the issue of torture in obtaining evidence and the consequences of using such a «method», its significance for the practice of national courts and the modernization of the position of courts in relation to the dynamics of this issue. As a result, problematic areas of Ukrainian legislation and justice were identified. The reasons for the use of torture by the authorities and the safeguards introduced by Ukraine to combat the use of such inhuman treatment by the authorities were identified. Changes in the opinion of the European Court of Human Rights on this issue and its significance for Ukraine are analyzed. The possibilities of application of the ECHR for evaluation of admissibility of evidence in criminal proceedings in Ukraine are examined. The patterns characterizing the legal positions of the ECHR in assessing the admissibility of evidence are discovered and singled out. Ukraine should take into account that the responsibilities of the state, in addition to refraining from the use of torture to obtain evidence, include the protection of people from these encroachments by third parties.

scholarly journals Case-law of the European court of human rights and its value to administrative justice

2019 ◽  
pp. 17-20
Author(s):  
Kristina NIKONOROVA
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Association Agreement ◽  
National Courts ◽  
Leading Role ◽  
European Court ◽  
Starting Point ◽  
Administrative Proceedings ◽  
Administrative Justice

More than twenty years have passed since Ukraine ratified the Convention for the Protection of Human Rights and Fundamental Freedoms in 1997 and recognized the jurisdiction of the European Court of Human Rights (ECtHR). On September 16, 2014 the European Parliament ratified the Association Agreement with the EU synchronously with the Verkhovna Rada of Ukraine. European integration processes have once again begun to play a leading role in the implementation of legal reform in Ukraine aimed at introducing the fundamental provisions of the European Convention on Human Rights (ECHR). First and foremost, the implementation of the rule of law principle based on the case-law of the European Court of Human Rights. In connection with this starting point, the ECtHR's case-law is considered to be a source of law, in particular in administrative proceedings. The main findings are based on the fact that the ECtHR's practice is inextricably linked to the Convention, which the ECtHR interprets in its decisions when dealing with specific cases. Some attention has been paid to the analysis of the provisions of the Law of Ukraine “On the enforcement of decisions and the application of the case-law of the European Court of Human Rights”. Article 17 of this Law provides for the courts using the ECHR and practicing the case-law of the ECtHR's as a source of law. Article 18 of the aforementioned Law defines the order of reference in national courts’ decisions to the ECHR and ECtHR's practice. It is emphasized that according to Article 1 of the above Law, it is necessary to talk about the ECtHR’s practice in a broad aspect, and not only about decisions regarding Ukraine. It is revealed that the main discussion is on the precedental nature of ECtHR’s decisions. As scientists understand the precedental nature of EctHR’s decisions, this question has taken the appropriate place in the study. As a result, it is concluded that the practice of the ECtHR has a precedent form the content of which is based on the legal position of the official interpretation of the provisions of the ECHR. It is in this form that it is appropriate to apply the case-law of the ECtHR's in the area of administrative justice.

scholarly journals Reflection of Decisions of the European Court of Human Rights on Impartiality and Independence of National Courts in Context of the Right to a Fair Trial

2021 ◽  
Vol 5 (1) ◽  
pp. 67-90
Author(s):  
Alla Demyda
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
National Courts ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Principles Of Justice ◽  
The Right

The article focuses on the principle of impartiality and independence of judiciary as a part of the right to a fair trial according to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In particular, an account will be taken of the case law of the European Court of Human Rights in matters of applications from national judges. The article considers the reflection of the decision of the European Court of Human Rights on the amendment of national legislations and the amendment of the provisions of the national constitutions regarding the principles of justice.

scholarly journals The Gravity of International Crimes as a Challenge to the (Full) Protection of Human Rights before International Criminal Tribunals? A Strasbourg Perspective

2017 ◽  
Vol 86 (4) ◽  
pp. 499-524
Author(s):  
Christophe Deprez
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
International Justice ◽  
International Crimes ◽  
International Criminal Tribunals ◽  
General Terms ◽  
European Court ◽  
Protection Of Human Rights ◽  
Human Rights Standards ◽  
Full Protection

While it goes undisputed that international criminal tribunals (icts) are, in general terms, bound to respect human rights standards, there is no consensus on whether their obligations should be identical in scope to those of national criminal tribunals. Most commentators seem to value the idea of equality in protection for international and domestic defendants alike. Yet, according to others, the human rights obligations of icts should be contextualised, that is, adapted to the specificities of international justice – and most critically to the gravity of international crimes. This article seeks to shed some light on this debate. It does so, in particular, by pointing out the intrinsic flexibility of human rights, and by drawing on the practice of the European Court of Human Rights with respect to gravity-based contextualism.

THE DIALOGUE BETWEEN UNITED KINGDOM COURTS AND THE EUROPEAN COURT OF HUMAN RIGHTS

2012 ◽  
Vol 61 (3) ◽  
pp. 557-584 ◽  
Author(s):  
Merris Amos
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Negative Outcomes ◽  
National Courts ◽  
European Court ◽  
The Creation ◽  
Human Rights Norms ◽  
The Impact ◽  
Rights Issues

AbstractIn this article the scope for dialogue between UK courts and the European Court of Human Rights is considered in theory and in practice. Having demonstrated that meaningful dialogue does take place in certain circumstances, the author considers the impact of dialogue and questions whether or not there can be any further expansion in dialogue whilst avoiding negative outcomes such as confusion over the creation of human rights norms and a loss in legitimacy for national courts adjudicating upon human rights issues.

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