scholarly journals Reflexiones jurídico-constitucionales sobre la prohibición del velo islámico integral en Europa

2011 ◽  
pp. 483 ◽  
Author(s):  
Benito Aláez Corral
Keyword(s):  
Human Rights ◽  
Public Space ◽  
Case Law ◽  
Public Spaces ◽  
Public Institutions ◽  
Fundamental Rights ◽  
European Countries ◽  
Derechos Humanos ◽  
European Court ◽  
The Uk

This work deals critically with the islamic full veil ban in public spaces, that is starting to be adopted in some European countries and has found echo in some regulations of spanish municipalities. After a brief analysis of the general bans recently passed in Belgium and France and of the partial bans adopted at schools by other countries, like Germany, Italy or the UK, the article analises from a constitutional perspective, that includes the case-law of the European Court of Human Rights, the constitutionality of the recently established local bans in Spain. The author reaches the conclusion that according to the Sp. Const. 1978 an adequate interpretation of the limitations to the freedom of religion and right to the own image, involved when wearing an islamic full veil, would make unconstitutional a general ban of the full veil in each and every public space, but would constitutionally allow its partial ban regarding the access to municipal buildings or services or regarding teachers and pupils at public institutions of education, when these partial bans could be justified by constitutionally values like the safeguarding of public institutions or services, or like the protection of the fundamental rights of others.En este trabajo se analizan críticamente las prohibiciones del uso del velo islámico integral en los espacios públicos que empiezan a proliferar en Europa y de las que empiezan a hacerse eco algunos Ayuntamientos españoles. Tras un somero análisis de las prohibiciones generales por las que se han inclinado Bélgica y Francia, y de las prohibiciones parciales que predominan en otros Estados, como Alemania, Italia o el Reino Unido, en ámbitos como el escolar se evalúa desde una perspectiva jurídico-constitucional, que incluye la jurisprudencia del Tribunal Europeo de Derechos Humanos, las prohibiciones que empiezan a reclamarse y establecerse en España. El autor llega a la conclusión de que una interpretación dogmáticamente adecuada a la CE de 1978 de las limitaciones posibles a los derechos a la libertad religiosa y a la propia imagen, implicados con el uso del velo integral islámico, hace constitucionalmente ilícita una prohibición general del mismo en todos los espacios públicos, pero permite justificar prohibiciones parciales, como las recientemente adoptadas en algunos municipios españoles para el acceso a edificios o servicios municipales, o las impuestas a alumnos y docentes en centros escolares públicos, en la medida en que estén dirigidas a garantizar el correcto funcionamiento de las instituciones y los servicios públicos y/o a la protección de los derechos de los demás.

Some Constitutional Thoughts about the Islamic Full Veil Ban in Europe

ICL Journal ◽  
2013 ◽  
Vol 7 (3) ◽  
Author(s):  
Benito Aláez Corral
Keyword(s):  
Human Rights ◽  
Public Space ◽  
Case Law ◽  
Public Spaces ◽  
Public Institutions ◽  
Fundamental Rights ◽  
European Countries ◽  
European Court ◽  
The Uk ◽  
The Right

AbstractThis work deals critically with the Islamic full veil ban in public spaces, that is start­ing to be adopted in some European countries and is being echoed in some regulations in Spanish municipalities. After a brief analysis of the general bans recently passed in Belgium and France and of the partial bans adopted in schools by other countries, like Germany, Ita­ly or the UK, the article analyses the constitutionality of the recently approved municipal bans in Spain from a constitutional perspective, including the case-law of the European Court of Human Rights. The author reaches the conclusion that according to the Sp Const 1978 an adequate interpretation of the limitations to the freedom of religion and the right to one’s own image, involved when wearing an Islamic full veil, would make a general ban on the full veil in each and every public space unconstitutional, but would allow its partial ban regarding the access to municipal buildings or services or regarding teachers and pupils at schools, as far as these partial bans could be justified by constitutional values like safeguarding of public institutions or services, or protecting the fundamental rights of others. `

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.

Extradition Between European and African Countries: Overcoming the Challenges

2021 ◽  
Vol 11 (3) ◽  
pp. 288-319
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Criminal Court ◽  
European Countries ◽  
Criminal Proceedings ◽  
African Countries ◽  
European Court ◽  
Real Risk ◽  
Civil Proceedings ◽  
The Right

Although EU states use the European Arrest Warrant (EAW) for the purpose of surrendering a person who is accused of committing an offence or who has been convicted of an offence, they use extradition when dealing with countries outside the EU. However, they use surrender when dealing with the International Criminal Court (ICC). Thus, extradition is one of the ways in which African and European countries (especially EU members) are cooperating in the fight against crime. Case law from courts in some African and European countries and from the European Court of Human Rights, the Human Rights Committee and the Committee against Torture, shows that extraditions between African and European countries have been delayed or hampered by allegations of human rights violations in the requesting state. These allegations have focused on mainly two rights: the right to a fair trial and the right to freedom from torture. The European Court of Human Rights has held that the extradition of a person should not go ahead if his or her trial was or will amount to a flagrant denial of justice or where there is a real risk of being subjected to torture. Although African courts and international human rights bodies have also held that extradition should not go ahead where there is a real risk that the person will be subjected to torture or where his/her trial will be unfair, they have not adopted the ‘flagrant denial of justice’ test. The case law also shows that some people have challenged the legal basis for their extradition. This article highlights this case law and suggests ways in which some of the challenges associated with extradition could be overcome. The article demonstrates that courts in some African and European countries have considered the nature of extradition enquiries. In some countries, such as Kenya, courts have held that extradition enquiries are criminal proceedings. However, in the United Kingdom, courts have held that extradition enquiries are criminal proceedings of a special type. There is consensus that extradition enquiries are not civil proceedings.

scholarly journals De lo subjetivo a lo objetivo en la jurisprudencia convencional, en dos ejemplos

2019 ◽  
pp. 513
Author(s):  
Antonio López Castillo
Keyword(s):  
Human Rights ◽  
Public Space ◽  
Case Law ◽  
The Other ◽  
Recent Case ◽  
European Court ◽  
Living Together

En la reciente jurisprudencia del TEDH se advierte una cierta modulación, de lo subjetivo a lo objetivo, en un contexto de controvertida reconsideración nacional de las sociedades abiertas de la Europa en crisis. De ello se trata aquí atendiendo a dos manifestaciones de conflictos de diverso porte y alcance; a propósito, la una, del inclusivo ámbito de la enseñanza, y relativa, la otra, a la regulación de acceso al espacio público mediante reglas excluyentes, de prevención general, pretendidamente instrumentales al aseguramiento de la salvaguarda de la convivencia, de la vida en común.The recent case law of the European Court of Human Rights shows a certain modulation, from the subjective to the objective, in a context of controversial national reconsideration of the open societies of Europe in crisis. This is what we are dealing with here in the light of two manifestations of conflicts of different sizes and scope; purposefully, one, of the inclusive field of education, and relative, the other, to the regulation of access to public space by means of excluding rules, of general prevention, supposedly instrumental to ensuring the safeguarding of coexistence, of living together.

Between Informal Dialogue and Official Criticism

2019 ◽  
Vol 21 (5) ◽  
pp. 409-420
Author(s):  
Anna Podolska
Keyword(s):  
European Union ◽  
Human Rights ◽  
Mutual Recognition ◽  
Case Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings

Abstract There are various forms of jurisdictional dialogue. In addition to drawing from the case law of another court or seeking direct assistance of such another court in passing the judgment, we can notice in practice situations when by issuing a verdict the courts are communicating with each other. The rulings of the Bundesverfassungsgericht, the Court of Justice of the European Union, and the European Court of Human Rights regarding the free movement of judgments in the European Union and protection of fundamental rights are the example of such activities. Each of these bodies was interpreting separately the extent to which the mechanisms of recognising and executing the judgments may interfere with the level of protection of fundamental rights. A common conclusion concerns assigning the priority to protection of fundamental rights, while individual bodies were determining differently the standards of such protection. The analysed judgments can be construed as a communication between these bodies. Although no direct discussion takes place between these courts, this is still a form of interaction which affects the development of the case law and understanding of the boundaries of mutual recognition of judgments and protection of human rights within judicial proceedings.

Case-law of the European Court of Human Rights in juvenile cases. Selected cases

2019 ◽  
Vol 584 (9) ◽  
pp. 18-32
Author(s):  
Elżbieta Czyż
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Young Person ◽  
Fair Trial ◽  
European Countries ◽  
European Court ◽  
Court Proceedings ◽  
The Right ◽  
Procedural Rights ◽  
Entire Procedure

The right to a fair trial, rules on deprivation of liberty are important standards in the entire procedure of dealing with juveniles, from detention to the end of court proceedings. The judgments of the European Court of Human Rights cited in the article illustrate what are the problems with complying with this standard in practice in several European countries, including Poland. It seems that one of the reasons may be declarative, apparent treatment of the rights of child/juvenile, especially when it concerns procedural rights. Teaching a young person respect for the law and responsibility for his behaviour requires subjective treatment so that he can feel, on his own example, the operation of a system based on clear, predictable, understandable rules.

scholarly journals Victim Participation in the Criminal Justice System in the European Union through Private Prosecutions: Issues Emerging from the Jurisprudence of the European Court of Human Rights

2016 ◽  
Vol 24 (2-3) ◽  
pp. 107-134 ◽  
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
European Union ◽  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Case Law ◽  
European Countries ◽  
The European Union ◽  
European Court ◽  
The Right

Private prosecutions are one of the ways through which crime victims in many European countries participate in the criminal justice system. However, there seems to be a reluctance at the Council of Europe level to strengthen a victim’s right to institute a private prosecution. In a 1985 Recommendation, the Committee of Ministers stated that ‘[t]he victim should have the right to ask for a review by a competent authority of a decision not to prosecute, or the right to institute private proceeding.’ Later in 2000 in the Recommendation Rec (2000)19 on the role of public prosecution in the criminal justice system, the Committee of Ministers calls upon Member States to ‘authorise’ victims to institute private prosecutions. Directive 2012/29/eu of the European Parliament and of the Council of 25 October 2012 is silent on private prosecutions. The dg Justice Guidance Document related to the transposition and implementation of Directive 2012/29/eu of the European Parliament and of the Council of 25 October 2012 discourages private prosecutions. However, private prosecutions take part in many European countries. It is thus important to highlight some of the issues that have emerged from different European countries on the issue of private prosecutions. Case law from the European Court of Human Rights shows that private prosecutions take place in many European countries. This article, based on case law of the European Court of Human Rights, highlights the following issues with regards to private prosecutions: the right to institute a private prosecution; who may institute a private prosecution? private prosecution after state declines to prosecute; state intervention in a private prosecution; and private prosecution as a domestic remedy which has to be exhausted before a victim of crime approaches the European Court of Human Rights. The author argues that there is a need to recognise the right to private prosecution at the European Union level.

‘A Risk of Irreparable Damage’: Interim Measures in Proceedings before the European Court of Human Rights

2010 ◽  
Vol 12 ◽  
pp. 313-336
Author(s):  
Pamela McCormick
Keyword(s):  
Human Rights ◽  
Essential Feature ◽  
Case Law ◽  
Fundamental Rights ◽  
Judicial System ◽  
European Court ◽  
To Come ◽  
Human Rights Norms ◽  
Interim Measures ◽  
Irreparable Damage

Abstract Interim measures can be indicated by most international decision-making bodies which monitor compliance with human rights norms to the parties involved in the proceedings before them, in order to prevent the commission of any irreversible actions which would either preclude the proper examination of a complaint or render the final judgment meaningless. The availability of interim measures is an essential feature of any effective judicial system, particularly where fundamental rights are at stake. They play a particularly important role in proceedings before the European Court of Human Rights (‘the Court’). The volume of requests for an indication of interim measures received by the Court each year is substantial and increasing. This presents the Court with a number of legal and practical problems. This chapter examines the circumstances in which an indication of interim measures may be made, as well as the consequences of non-compliance with such an indication, although it is acknowledged that the incidence of non-compliance is low. With its recent case law, the Court has brought the existence of interim measures to the attention of a wider audience, which is desirable as only such an awareness will render the protection of Convention rights practical and effective rather than theoretical and illusory, a stated goal of the Court. However, such a wider awareness will in turn increase the volume of requests again, making it likely that the Court will in years to come have to make significant changes to the scope of requests for interim measures, as well as to its practices and procedures for considering such requests.

Public and Elite Perceptions of Supranational Courts: The European Perspective

2014 ◽  
Vol 39 (1) ◽  
pp. 41-94
Author(s):  
Åse B. Grødeland
Keyword(s):  
Human Rights ◽  
Quantitative Data ◽  
Case Law ◽  
European Perspective ◽  
Qualitative And Quantitative ◽  
European Court ◽  
The Uk

This article investigates the perceptions of legal insiders (i.e., those working professionally with law) and legal outsiders (i.e., those affected by law) of European supranational courts in general, and the European Court of Human Rights (ECtHR) in particular. Drawing on largescale qualitative and quantitative data collected in Norway, UK, Poland, Bulgaria and Ukraine, the article shows that support for such courts is widespread across Europe—though less so in the UK than elsewhere. Support is predominantly ‘informed’ by practical considerations of usefulness rather than by ideology. Our data suggest that national legal cultures are highly responsive to ECtHR case law as a legal transfer. This, in turn, has implications for the debate on the legitimacy of the ECtHR and, thus, also for its future.

CURRENT DEVELOPMENTS: IV. CITIZENSHIP AND HUMAN RIGHTS

2004 ◽  
Vol 53 (2) ◽  
pp. 493-501 ◽  
Author(s):  
Erika Szyszczak
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
International Obligations ◽  
Court Of First Instance

Citizenship and human rights continue to play an important role in the evolution of Community law. Both sets of principles have appeared in the case law of the European Courts and in the creation of a Constitutional document for Europe. Part II of the draft Constitution incorporates the Charter of Fundamental Rights of the Union. Additionally, the first report from the independent network of experts in fundamental human rights details the various international human rights obligations which the Member States are subject to, analysing Member State policy in a number of areas in the light of the international obligations.1Paradoxically, at a time when greater emphasis is being paid to the constitutional recognition of human rights there are indications of divisions between some of the Advocates General, the Court of First Instance and the European Court of Justice (the Court) on the constitutional role of fundamental rights in relation to access to justice.

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